Evidence Outline Professor Bogan Fall 2013

Basics
Evidence law is about the limits we place on the information that juries hear; goal is to let in evidence that will help jury reach reliable decisions, and keep out evidence that doesnt Why have rules of evidence? o Would take too much time to show every piece of evidence o Cant trust lawyers to show only good evidence o Cant trust juries, bias and emotion limit ability to evaluate evidence properly o Protect the legitimacy of the system, project to the public that juries and legal system is trustworthy o Protect constitutional rights (Miranda) o We limit what juries hear because a jury decision is final and unreviewable, so we make sure they get the best evidence

When do rules of evidence apply?

Rules of Evidence may still apply in non-jury trials A trial is supposed to be a recreation of what happened in real life Rules of evidence dont typically apply in arbitration or administrative trials

Evidence issues on appeal

In a bench trial, if the judge lets in inappropriate evidence, it wont be overturned on appeal, judge is assumed to discount bad evidence o Trial attorney should take this into account before waiving jury, because youll lose any evidentiary appeals Appellate review standard is for abuse of discretion o Not asking whether decision was right or wrong, but whether it was unreasonable

Motions in Limine
Motion in Limine pretrial motion asking judge to keep out particular evidence that you know is going to come up o Motions in limine are usually open for reconsideration at trial so that lawyer can get evidence in record for appellate review o So if you get a favorable motion in limine ruling you still have to object at trial Motions in Limine are used when a party knows that an evidence issue is bound to arise so they can get an early ruling to help plan trial strategy

Limiting Instructions
o When evidence is admissible for one purpose but not another, judge must give a limiting to instruct the jury concerning what the evidence can be used for and what it cannot

Objections and who decides

At trial, lawyer must object to keep evidence out, otherwise, evidence will be in record Voir Dire can refer to pretrial jury selection, and also to talking to judge outside the hearing of jury Only the trial judge can determine evidentiary matters, not the other pretrial judges that heard parts of the case

Four kinds of evidence

Live witness testimony Documents Real evidence (like a will) Demonstrative or illustrative evidence Rules may apply differently to different types of evidence

Relevance
Basic Rule
Evidence is relevant if the piece of evidence offered tends to prove or disprove a fact that is of consequence to the case Relevance is only one hurdle to the admission of evidence, must still meet reliability and policy concerns

Elements
Tend to prove or disprove (probativeness) - Evidence must have a tendency to make the existence of that fact more or less probable than without the evidence o Probativeness is a lenient standard, any brick Of consequence to the trial (materiality) o Materiality is determined by the substantive law

FRE
401 relevance means evidence tends to prove or disprove an important fact 402 Evidence is inadmissible if irrelevant, usually admissible if relevant

403 relevant evidence can be excluded if it would be unfairly prejudicial

FRE 403 Relevant evidence can be excluded, upon the judges discretion, if probative value is substantially outweighed by danger of unfair prejudice, the danger of confusing the issues or misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence Unfair prejudice undue tendency to cause decision to be made on an inappropriate basis, like emotion; comes up a lot with evidence of previous crimes Unfair surprise might be unfairly prejudicial

Relevance and Credibility Credibility of a witness is a collateral issue Credibility of a witness is always material, but may be excluded for other reasons

Ways to deal with evidence that will hurt your client or other side doesnt want admitted Limiting Instructions - Can be requested before evidence is presented if you think something about the other sides evidence is prejudicial, ask for judge to make clarifying statement to the jury Stipulations offer an alternative to keep out prejudicial evidence

Eye Witness Identification Jurors think its very reliable, but often it isnt Many things can affect an eye witnesses ability to observe o Length of time EW saw event o Exceptional quality of event (EWs observe exceptional things better) o External conditions distance, lighting, noise, smell o Internal Conditions did they observe something they were expecting, personal characteristics for being a careful observer (occupation); EW frightened? Moderate stress makes you more observant, high stress makes you less; bias, cultural views o Memory amount of time since incident, familiarity with incident o Unconscious transference we naturally fill in gaps in stories, fill in details that we didnt actually see o Outside contamination bad photo lineups Jurors find confident witnesses more believable o Witnesses with a ton of details may be less accurate Best way to challenge is to get as many statements from the EW as possible to compare and look for inconsistencies or super-consistency

Direct and Circumstantial Evidence Direct evidence that proves a consequential fact directly o I saw defendant shoot victim Circumstantial jury must draw inferences from evidence in order to conclude that a consequential fact exists Direct evidence isnt necessarily better than circumstantial Circumstantial evidence can still be relevant

Conditional Relevancy The relevancy of a particular piece of evidence depends upon another fact that has not been proved

Reasons for excluding relevant evidence Accuracy a piece of evidence may be likely to confuse the jury, or has such slight probative value that it should be kept out Promote extrinsic social policy

Similar Happenings Evidence (not sure how this is different from other acts under 404b) When a party wants to introduce evidence that involves other events or happenings between the parties, or that involves another party similarly situated, as proof as to the event or transaction in question Courts are generally reluctant to allow, usually not very probative and can focus jury on other events Key issue to determine did other happen occur under circumstances substantially similar to those surrounding the event in question Parties may also try to introduce evidence of no similar happenings rarely probative

Statistical Evidence Allowed if you can establish the accuracy of the underlying probability factors/numbers/calculations

Photographs/Gruesomeness No hard and fast rules Courts usually allow

Reenactments

OK as long as based on accurate info/ substantial similarity

Specialized Relevance Rules

Each of the 5 rules reflects the rule writers judgment that, as a matter of law, the evidence it governs fails a Rule 403 weighing test. When evidence passes one of the special relevance rules, it still has to pass a 403 analysis

FRE 407 Subsequent remedies Bars evidence of subsequent remedial measures TO PROVE o negligence, o culpable conduct, o product defect, or need for warning; Does not bar evidence to prove other things, such as o ownership, o control, o or feasibility if controverted, o or to impeach POLICY o Relevancy - Evidence of remedy is often weak evidence of negligence because we cannot say that because the world gets wiser as it gets older, therefore it was foolish before; but the inference of negligence is a possible one because repair tends to show consciousness that the situation called for additional safety precautions o Social concern - Encourages remedies, which is the strongest ground for exclusion Requirements for inadmissibility o Party o Engaged in some Remedial Measure o Remedial measure was taken After accident/injury occurred Remedial Measure any measure that would have made the accident/injury less likely to occur if it had been taken before the accident/injury. o Measures taken after a product was sold but before the injury occurs are not barred by this rule Feasibility is in controversy if party claims that remedial measures were not physically, technologically, or economically possible (if party says that remedial measures werent taken before because of a judgment call, feasibility likely isnt in controversy) o Watch for question: did you do everything possible o Statements like highest quality or best possible likely equate to a claim that there were no feasible alternatives

Statements that the design was good or excellent probably doesnt put feasibility into controversy Impeachment subsequent remedial measures have been held inadmissible to impeach testimony that, at the time of the event, the measure was not believed as practical as the one employed, or that the defendant was using due care at the time of the accident Rule doesnt bar evidence of subsequent remedial measures taken by someone other than the party; barring them would not serve the policy goal of avoiding penalizing those who make postaccident repairs. Analysis o First, is this a remedial measure? o What is it being offered to prove?

FRE 408 Compromise Bars evidence of compromise or attempt to compromise a disputed claim and statements or conduct in negotiations TO PROVE o liability for or invalidity of claim; but not to prove other things, such as o witness bias, o lack of undue delay, o or obstruction of criminal justice Only bars evidence of compromise regarding a disputed claim disputed validity of claim or amount of damages involved Evidence of compromise cannot be used to impeach Can bring evidence of compromise in an action to enforce settlement agreement Compromise negotiations must actually be occurring, otherwise, if we just allowed a partys prediction of litigation to create compromise negotiations, all statements would be protected POLICY o Probativeness - Compromise may be motivated by a desire for peace rather than from any concession of weakness of position, which is especially true if the settlement amount is small (but Statements made during negotiations may mean more) o Social concern - To encourage compromise, which is usually the stronger grounds for exclusion Analysis 1. Is the evidence of a compromise or attempt to compromise? 2. Objective indications that compromise was being made? 3. Is the claim disputed as to validity or amount? 4. What is the evidence being offered to prove?

FRE 409 Medical Expenses Bars evidence of offer or payment of medical costs TO PROVE liability

o POLICY o Offer is usually made from humane impulses o Admitting evidence would tend to discourage assistance

Applies to unilateral offers where there is no quid pro quo (not in compromise negotiations) Doesnt protect statements of liability included with offer to pay medical expenses

FRE 410 Pleas Bars (against the defendant) o Guilty plea later withdrawn o Nolo contendere plea o Statements in plea proceedings o Statements in plea talks with prosecutor But allows evidence o To complete a partial account of plea discussions o In perjury prosecution if statement under oath, on record, and in counsels presence POLICY o Probativeness - A defendant, although not guilty, might offer a plea to avoid the risk of loss after trial and an even great penalty. o Social concern - Exclusion will promote plea bargaining Rule only excludes evidence that would be used against the defendant

FRE 411 Liability Insurance Bars evidence of liability insurance or lack of it TO PROVE negligence or wrongful action; but not to prove other things such as agency, ownership, control, or witness bias POLICY o Probativeness - It is unlikely that the insured are more careless or that the uninsured are more careful o Unfair prejudice - The jury might otherwise seek deep pockets or reduce recoveries to insured plaintiffs o Exclusion encourages insuring and avoids a windfall for the opponent of an insured party Look to see if case is civil or criminal, because if criminal the policy of hiding insurance companys deep pocket doesnt apply Collateral source rule

Character Evidence
General - FRE 404 Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time

POLICY o Character evidence leads to two types of prejudice Risk that jury will give excessive weight to the vicious record of crime thus exhibited (past acts), and allow it to bear strongly on present charge Jury may find that character traits justify conviction of current charges, or jury may punish for character even without proof of the current crime. o Character evidence isnt all that probative

Exceptions to ban on character evidence

Character as essential element of claim or defense 405b When character is a specific element or a crime or defense, character evidence is allowed, and specific instances of conduct may be raised on direct When character may be an essential element of a claim o Negligent entrustment or hiring o Defamation where truth is a defense o Where mental status must be proved Insanity/competency o entrapment

Habit - 406 Evidence of the habit or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice WHY? o Character evidence is kept out because it is broad and ambigious, labeling someone as honest doesnt tell us much about what they did on a particular occasion. But habits are specific pratices, like buckling a seatbelt, that if someone always buckles their belt, it is more likely that they buckled their belt on the occasion at issue. When is something a habit? o Conduct is virtually automatic (done without reflection), routine, has been repeated many times in the past o Must show a certain number of instances o Rule is intended to let in evidence of innocuous habits that wont be as prejudicial as other propensity evidence (its rare that a person is habitually bad) o Be careful not to confuse a character trait with a habit Character trait always careful Habit always buckling seatbelt (more specific)

Character of accused - 404(a)(1)

In a criminal case the accused can offer evidence of a pertinent character trait to prove innocence, but then the door is open to the prosecution to rebut (accused has to offer character evidence first, then prosecution may rebut) o Pertinent character trait may be broad, such as honest, or law-abiding The accused may introduce evidence as to a pertinent character trait regardless of whether or not the accused testifies at trial. If the accused does testify, he becomes subject to impeachment, including as provided for in 404a3, attack upon his character for truthfulness in accordance with 607, 608, 609.

Character of alleged victim - 404(a)(2 In a criminal case, and subject to 412 (rape shield) o The accused may offer evidence of a pertinent character trait of the alleged victim, which opens the door for the prosecution to rebut the same character trait in the victim or in the accused o In a homicide case, prosecution may first offer evidence of victims character in form of reputation/opinion if the accused alleges that victim was the first-aggressor

Methods of proving character (405) governs evidence admitted under 404 (a) Reputation or opinion character evidence must first be made in the form of reputation or personal opinion (direct exam), then on cross exam specific instances of conduct can be raised o Why? Prosecution would bring in witnesses to compete and would take too much time, promotes efficiency On cross, can ask about specific instances of conduct that relate to the same character trait that the reputation or opinion evidence addressed, so if evidence was that witness was truthful, could not bring up specific acts of violence o Must have a good faith basis for asking about specific acts Reputation must first demonstrate that witness has knowledge of the defendants reputation in the community, doesnt actually have to know defendant o can be community where the defendant lives, or works o testimony is limited to whether the reputation is good or bad, peaceful violent, but it has to be conclusory, cant say why that reputation exists Opinion must establish that witness knows defendant well enough, how long have they known each other, how often do they talk/see each other, whens the last time they saw each other On rebuttal, party may either use specific acts against the character witness, or call their own character witness to testify to opposing reputation/opinion o Specific acts must relate to the specific character trait and be asked on a good faith basis Extrinsic evidence is not allowed party bound by witnesses answer.

Huddleston Standard

With prior acts evidence (specific acts raised on cross), there may be contention as to whether the prior act actually happened, court makes this decision under 104 o 104a used for most questions Examples: competency of a lay witness, qualification of an expert witness, admissibility under a hearsay exception or as not hearsay, and whether a confession was voluntary o 104b used for relevancy conditioned on fact. This is where more prior act evidence falls (I think), because the evidence of the prior act is only relevant if the defendant actually committed the act The standard for 104b is prior acts are admitted by judge if jury could reasonably find the conditional fact (preponderance of the evidence). Also, court can only consider the evidence that the jury will be able to consider (only admissible evidence)

Character of a witness is covered by 607, 608, 609

Other crimes or acts 404b (Non-propensity use)

Evidence of other crimes or acts are not admissible to show action in conformity therewith. But MAY be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, etc General Analysis - Under 404b generally ask two questions (1) does the evidence have some special significance independent of its tendency simply to show criminal propensity, and (2) if so, does it pass 403 balancing?

Motive other acts may be admissible if they offer proof of motive that this particular defendant had motive against this particular victim motive is the reason that nudges the will and prods the mind to indulge the criminal intent

Proof of Identity/Modus Operandi If we know that defendant committed a particular crime in the past, and the present offense matches the past crime in idiosyncratic ways, we may infer that the defendant committed the present offense as well o Identity must be at issue, wont apply if a defendant admits acts but claims self-defense o How similar does it need to be? Not exact Can include non-physical evidence location, method, Pretty vague standard, judge has a lot of discretion OVERALL similarity should be looked at, dont need one specific similarity that indicates a signature crime o the idea is that this couldnt be anyone elses crime

More reliable than mere propensity?

Narrative Integrity/Res Gestae there are two categories of evidence that may be considered inextricably intertwined with a charged offense, and thus admissible under 404b o Evidence of prior acts may be admitted if the evidence constitutes a part of the transaction that serves as the basis for the criminal charge o Prior act evidence may be admitted when it is necessary to do so to allow the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime

Reverse 404b When a defendant tries to use other bad acts to show that someone else committed the crime Lower similarity standard because prejudice isnt really a factor, but that doesnt mean that a 403 analysis can never go in favor of prosecution for keeping out evidence Still cant use 404b to show someone elses propensity

Absence of accident Evidence of a similar prior accident tends to discredit the accident happening a second time Not being offered to show propensity, offered to rebut claim of accident Defendant must have had a role in the 1st/prior accident, because the inference is that defendant would have been more careful the second time around How is this different from mere propensity?

Doctrine of chances defendant doesnt have to be directly involved in prior acts, just that series of events are so unlikely that it couldnt have been chance

Character Evidence in Civil Cases Circumstantial/propensity use of character evidence is not permitted in civil cases (404a), except to impeach or support the character of a witness for truthfulness (607,608,609, 404a3). Habit of a person, as distinguished from character, may be admitted under 406.

Intent May be offered to show that defendant knew what they were doing To be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the defendants character or propensity, that the defendant had the same intent on the occasions of the charged and uncharged acts.

Common Plan or Scheme

A pattern or systematic course of conduct is insufficient to establish a plan Therefore it is not enough to show that each crime was planned in the same way; rather, there must be some overall scheme of which each of the crimes is but a part. Seems to overlap with preparation

Knowledge Previous crime/act shows that defendant had specialized knowledge that was necessary to commit current crime

Procedural issues Other acts are a conditional relevancy issues 104b huddleston must find that a reasonable jury could find Court may still exclude under 403

Evidence of Similar Crimes in Sex Cases

413 Evidence of Similar Crimes in Sexual Assault Cases Evidence under 413 must meet 3 requirements o Defendant charged with sexual assault o Evidence is offered of another sexual assault committed by defendant o Evidence is relevant but propensity evidence is always relevant o (still must pass 403 analysis, but there is debate about how to weigh, because rules seem to want to let this evidence in, knowing that it will be highly prejudicial) Due process issues o Is defendant being deprived of a fair trial by admitting evidence of other bad acts that defendant wasnt convicted of? o Answer: the evidence isnt automatically admissible, trial judge uses 403 to determine fairness, which may satisfy due process

414 Evidence of Similar Crimes in Child Molestation Cases Basically the same as 413, but for child molestation

415 Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation Evidence of prior sexual assaults or child molestation is admissible in civil cases

Impeachment and Character for Truthfulness

Modes of Impeachment
Impeachment Casting doubt on the witnesss accuracy or trustworthiness Impeachment with out of court statements when a witness is impeached with an out of court statement, that may appear to be hearsay, it isnt. when a statement is offered to impeach, it isnt offered for the truth of the matter asserted, it is just offered to show that witness has said different things at different times and therefore lacks credibility.

Non-Character Impeachment (one lie at a time; mistake) 1. 2. 3. 4. Suggesting that the witness is lying NOW, but not referring to a general tendency to lie Contradiction by conflicting evidence Contradiction of past inconsistent statement Evidence of bias Mistake a. Cast doubt on witness powers of perception, memory, or narrative accuracy None of these impeachment methods depends on inference that witness is generally a liar Evidence used for non-character impeachment still subject to 401, 402, 403, but not hearsay, because the prior statement isnt offered to prove the truth of the assertion, just to impeach

Character based impeachment (Witness is a liar in general and is lying now) 404a3 allows propensity evidence through 607, 608, 609 regarding witnesses, so if defendant doesnt testify, character evidence against him is subject to 404, if defendant does testify, he is subject to 607, 608, 609 607 Either party can attack a witnesss credibility 608a Either party may offer evidence of a witnesses character for untruthfulness, then opposing party may rebut (witness must be accused of untruthfulness before a witness can claim truthfulness) o Rehabilitation character for truthfulness must be attacked first, then can be rehabilitated When has character for truthfulness been attacked? when they have been attacked with lying on an occasion not related to this trial, evidence of criminal conviction attacks character for truthfulness o Evidence must be opinion or reputation o In order to offer reputation evidence under 608 (and probably 404 as well), must establish that witness is qualified by having an acquaintance with the witness, his community, and the circles in which he has moved, so as to speak with authority o The foundation (factual) requirement for opinion evidence regarding a character witness is less stringent than that for reputation evidence, but still must pass 403

608b court has discretion to allow specific instances of conduct relating to truthfulness concerning (1) the witness character for truthfulness or untruthfulness or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified o Specific instances of conduct cant be proved by extrinsic evidence 609 Impeachment by Evidence of conviction of crime o (a) for purpose of attacking the character for truthfulness of a witness evidence that a witness other than the accused has been convicted of a crime punishable by a year in prison shall be admissible subject to a 403 analysis o (a) for purpose of attacking character for truthfulness of witness/criminal defendant, evidence still subject to one year possible punishment rule and also subject to a modified 403 test (shall be admitted if probative value outweighs prejudicial effect, compared to probative value must be substantially outweighed by unfair prejudice) Balancing under 609a Nature of crime Time of conviction and witnesss subsequent history Similarity between past crime and charged crime Importance of defendants testimony Centrality of the credibility issue o (b) evidence that any witness has been convicted of a crime shall be admitted regardless of punishment, if the elements of the crime included an act of dishonesty or false statement by the witness o TIME LIMIT not admissible if 10 years old (from date of conviction or release, whichever is later), unless court determines that probative value outweighs prejudicial effect o Probative value of past convictions of crimes that do not involve dishonesty or false statement The rational for relevancy of a conviction, for say assault, must be that a person who breaks any law has so little respect for propriety and the legal system that he is more likely to lie in court than someone who had not broken the law

Rape Shield Law

General 412 governs the admissibility of evidence (opinion, reputation, specific acts) of the victim of sexual misconduct cases Generally prohibits introduction of past sexual conduct of alleged victim in sexual misconduct cases, such as o Evidence offered to prove that any alleged victim engaged in other sexual behavior (412a1) o Evidence offered to prove any alleged victims sexual predisposition (412a2)

Exceptions In Criminal Cases o Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence (412b1a) o Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct to prove consent or by the prosecution, (412b1b) o Evidence, the exclusion of which would violate the constitutional rights of the defendant (412b1c) In civil cases evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim (412b2)

Competency of Witnesses
Competence A given piece of evidence is eligible to be received into evidence For people, competence means eligible to testify in court

Viva Voce Evidence First question, when is a person competent to testify? o Judge cant testify in case over which he presides, same with jurors o Some jurisdictions prevent perjurers from testifying, not just being impeached with it o Dead man statutes o Juror cant impeach the verdict Policy of finality Jurors can testify about prejudicial external events

Four Prerequisites of competency Take oath make sure witness knows that they are at risk of perjury o Kids or crazy people may not understand oath and are thus incompetent Perception witness must have perceived something about the real would transaction Memory witness must remember what was perceived Communication witness must be able to communicate what was perceived o Dont have to perceive, remember, communicate everything

Competency of Jurors

FRE 606 Jurors cant give testimony to impeach a jury verdict except in situations regarding an outside influence o External influences things like newspapers, bribes, or threats o Internal influences illness, tiredness, drug use o Policy Considerations Need for finality Prevent harassment of jury after trial Allow jurors confidence to openly deliberate 6th amendment fair jury of competent peers Other safeguards exist like voir dire, and inappropriate behavior can be reported before a verdict is rendered o Dissenting view from Tanner v. US FRE 606 only covers testimony regarding jury deliberations, it doesnt forbid testimony regarding jury misconduct during trial Drugs are an outside influence, and court is competent to draw a line between drugs and poor sleep

Competency of Judges Judges cant testify in cases over which they preside - 605

Hearsay what?
General Why isnt hearsay allowed? o No opportunity to cross-examine the declarant o Declarant isnt under oath o Jury cant weigh demeanor o Concerned with reliability of evidence Cant examine out of court declarants Memory Perception Narrative ability Sincerity In order to know if a statement is hearsay, you have to know what the out of court statement is being offered to prove Animal hearsay (animal tracking someone) is generally admissible Machine hearsay generally admissible, like reading a clock, but not reading an email

Main rule

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted (801c). Hearsay is not admissible except as provided by these rules (802).

Elements Statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended as an assertion o An assertion is an act that intended to be communicative Why only exclude assertions? If a person is not intending to communicate anything, there is little chance of lying, which is why non-assertions arent barred by hearsay Even if allowed in because non-assertion, still have to rely on out of court declarants perception, memory, and narrative powers, but not his sincerity o A person talking to themselves is likely not a statement or assertion, not intending to communicate (non assertive verbal conduct also includes questions and commands) o Non-assertive verbal conduct is not hearsay- (E.g. Saying ouch when struck unexpectedly; The reaction of a teller, pale & shaking, during a robbery; Woman screaming when seeing face of attacker in a mugbook) o Many courts dont count questions or commands as assertions o Verbal Conduct that is assertive but offered as a basis for inferring something other than the matter asserted FRE allows if a conclusion about one subject can be drawn from a speakers statements on another subject, the chances that the speaker made a false statement about the second subject to create a false impression about the first subject are slight; FRE only bans intended assertions Opposing arg: the implied assertion still depends on the declarants belief in its truth, and therefore the statement relies on the declarants belief in its truth/sincerity, so it should be kept out Ex: Dan: Im going to put on a sweater offered to prove that it was cold. Dan intended to assert his choice of clothing, but it can be inferred that it was cold. Therefore, since it is offered to show temperature and asserted to show clothing choice it is not offered to prove the truth of the matter asserted. Out of court statement any statement not made by witness at the current trial or hearing Offered to prove the truth of the matter asserted o Non-hearsay uses of out of court statements To Simply show that words were spoken Paige offers evidence that she spoke to Dan on the phone about how much he likes cars to show that Dan was alive at that time, not to prove that he actually likes cars To prove the impact of the statement on someone who heard it

Ex: Dan warns Paige that Alex is out to get her. Offered to show the effect on paige, that she had reason to fear alex, but not offered to show that alex actually was out to get her. Allowed because the declarants testimonial capacity doesnt matter when trying to prove effect on listener To prove a legal right or duty that was triggered by the statements Ex: Threats, contracts, notice Allowed because verbal acts have legal force independent of the declarants intended meaning so again, soundness of testimonial capacities dont matter To impeach the declarants later, in court testimony When a statement is used to impeach, the theory isnt that the statement is true, but that the witness has said different things at different times about this fact, and therefore shouldnt be trusted Verbal objects name on mug, etc. couldnt cross examine a mug, no risk that mug is lying When analyzing hearsay, and the statement isnt an assertion, or isnt offered to prove the matter asserted, the declarants status isnt an issue, which is why it isnt barred

Double Hearsay - 805 Both instances of hearsay must individually meet a hearsay exception

Limited admissibility When a statement is admissible for one purpose, but not for a hearsay purpose, judge must give a limiting instruction

Hearsay Exceptions
General Notes/Policy Most of the exceptions to the hearsay rule are traditionally justified by reference to two values, necessity and trustworthiness or reliability.

A. Prior Statements by Witness (801d1) (not hearsay by fiat)

For any statement to be admissible under this rule, the prior statement must be made by a o witness o The witness/declarant must testify at the trial or hearing and o Must be subject to cross-examination concerning the statement FIND CASE ABOUT HOW MUCH CROSS EXAMINING IS NEEDED The requirement of cross-examination can be satisfied even if the witness has forgotten the events (US v. Owens)

Evidence admitted under 801d comes in substantively, prior inconsistent statements offered to impeach come in under 613.

1. Prior Inconsistent Statement (a) The prior statement must be Inconsistent with the declarants testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition o Under 801d1a or other proceedings includes grand jury testimony, but not statements made to police officers, even under oath o 801d1a rational context of formal proceeding and an oath provide assurance of reliability of the statement o Inconsistent doesnt require that the prior statement is diametrically opposed, inconsistency may be found in evasive answers, silence, changes in position, or memory loss o If cant get statement in under 801d1a, try 613, can at least impeach with the statement

2. Prior Consistent statement offered to rebut (b) The prior statement must be Consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or o For past consistent statements, must meet TOME rule, that past consistent statement was made BEFORE the improper influence or motive arose The prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, etc. o Prior consistent statements dont have to have been made under oath

3. Identification (c) The statement must be one of identification of a person made after perceiving the person o The purpose of the rule is to permit the introduction of more meaningful identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him o Witness doesnt have to be impeached before using 801d1c o 801d1c can be used if the witness made the identification but at trial denies it; witness side may claim no opportunity to cross examine, but court will probably allow (confrontation clause issues) o Admissibility of police station sketches Arg against hearsay, out of court statements Arg for maybe not even a statement, fits 801d1c, sketch is just a composite of identification statements

B. Statement by Party Opponent

All statements under this rule must be offered against a party Policy - Adversary system, simply because party said it is enough reason to admit statement Admission Anything a party has communicated that is sought to be admitted against that party (doesnt have to be a confession) Although admission of hearsay generally raises confrontation clause issues, this wouldnt Personal Knowledge 801d2 doesnt require that declarant have personal knowledge (but it should), advisory committee notes suggest that all statements should be let in, and lack of personal knowledge may be relevant under 403.

1. Partys own statement The partys own statement in either an individual or representative capacity may be offered against her o Party cant claim foul about not being able to cross-examine herself o This is the one exception to requirement of personal knowledge, dont need it here

2. Adoptive Admissions A statement of which the party has manifested an adoption or belief in its truth may be offered against her o An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person. o The partys words or conduct asserted to be a manifestation of assent to the truth of the statement may be susceptible of more than one interpretation. Whether a party has manifested his assent to another persons statement is a question of conditional relevancy under 104b. The burden of proof is on the proponent to show that adoption was intended. o Silence under circumstances naturally calling for denial has also been recognized as an admission Four conditions to using silence as evidence of an adoptive admission Statement was heard and understood by the party against whom it is offered Party was at liberty to respond Circumstances naturally called for response Party failed to respond 3. Statements by Agents A statement by a person authorized by the party to make a statement concerning the subject o Must be within the scope of the agency and o Made during the existence of the relationship

4. Statements by Employees and Agents A statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship o The communication itself may be used in determining agency/scope, but is not sufficient in itself to make determination, need other evidence o Party will argue that it wasnt within employees job description to comment about job, or make disparaging comments about employer, but FRE just requires that the comment concern the job duties Statement doesnt have to be made to an outside party, can use in-house statements Also, statements by employers cant be used against the employee, only employee statement against employer 5. Co-Conspirator Statement A statement by a coconspirator of a party during the course and in furtherance of the conspiracy o The contents of the statement shall be considered but are not alone sufficient to establish under C the agency or employment relationship and scope thereof under subsection D, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision E. Preconditions for coconspirator statement to be admissible o That a conspiracy existed at the time of the out-of-court statement was made o That the conspiracy included both the declarant and the party against whom the statement is offered, and o That the declarant spoke during the course of and in furtherance of the conspiracy Court uses 104a to determine admissibility of a statement by a coconspirator Policy Conspiracy is like an agency agreement

104a v. 104b 104a higher standard of proof, preponderance of the evidence, and it doesnt have to be determined on admissible evidence 104b lower standard of proof whether a reasonable jury could find by a preponderance of evidence, can only consider admissible evidence Why lower standard than beyond a reasonable doubt? It just regards admission of evidence, jury will still get to weigh it

Past Statement offered to impeach - 613 Past hearsay statements can be admitted under this, even though rule doesnt explicitly say Foundational requirement only requires that the witness be afforded at some time an opportunity to explain or deny, and for further interrogation Can be used against any witness, not just party opponents

Contradiction doesnt have to be in plain terms, statement must show some indication that the fact was different from the testimony the witness gave in court 607 allows party to impeach its own witness, but in criminal cases the government is given less leeway o Shouldnt allow party to use impeachment simply to get around hearsay o Use 403 to weigh impeachment testimony against tendency to unfairly prejudice and confuse jury

Adoptive admissions, past inconsistent statements, silence Attorneys may try to use a partys silence as an adoptive admission under 801d2b or a past inconsistent statement under 613. For impeachment o Pre-miranda silence can be used to impeach Party may have assumed Miranda and right to silence o Post Miranda silence cant be used to impeach Post Miranda silence is too ambiguous to have any probative value Also, Miranda assures that silence will have no penalty o Post arrest pre Miranda silence can be used to impeach But party being impeached may argue that common knowledge says that you can be silence For adoptive admission o Post Miranda silence probably cant be used Ambiguous/assurance of no penalty o Court hasnt ruled on whether out of custody silence or in custody pre Miranda silence can be adoptive admission, circuits are split on both However, court is more strict on admitting substantive evidence than impeachment evidence Likely that Court would allow admission of pre-arrest pre-miranda statements When the law is not at hand, we can expect innocence to speak out at false accusations

C. Hearsay objections under 804 Declarant Unavailable

Declarant is unavailable if 1. Exerts privilege not to testify 2. Wont testify even in face of court order 3. Testifies to a lack of memory of the subject matter 4. Death or illness 5. Unable to procure attendance by process or other reasonable means 6. Declarant is not unavailable if unavailability is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or

testifying. (party cant offer statement of unavailable witness if that witness is unavailable due to the partys wrongdoing) Unavailability is determined under 104a

1. Former Testimony 804b1 Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the court of the same or another proceeding, if the party against whom testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination Predecessor in Interest o Satisfied if former party had opportunity and similar motive (broad reading) o Minority view privity must be a legal relationship o Prosecutors have duty to seek justice, so they have different interest than ordinary parties who may fight harder - - courts dont favor this argument Similar motive o The test must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue o This is the same principle that holds collateral estoppel inapplicable when a small amount is at stake in a first proceeding and a large amount is at stake in a second proceeding, even though a party took the same side of the same issue at both proceedings o The situation is not necessarily the same where the two proceedings are different in significant respects, such as their purposes or the applicable burden of proof. Such as grand jury trial. Contrast with 801d1a This exception requires a prior chance for cross-exam, 801d1a requires a present chance to cross-exam 2. Dying Declarations 804b2 In a prosecution for homicide or in a civil action or proceeding, a statement made by declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. Can only be used in homicide cases or civil proceedings There must be a settled hopeless expectation of death Competency rules still apply must be talking about something they have firsthand knowledge of (only exception to first hand knowledge rule comes in statement against interest (poos case) Policy o A person is more likely to be honest when about to meet their maker, and has less motive to lie due to fewer consequences

o Otherwise vital information may be unavailable Problem dying people might be confused, delusional Judge determines under 104a

3. Statement against Interest 804b3 A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. o Courts are wary of statements exonerating the accused coming from already incarcerated people Only the self-implicating parts of statements are admissible; parts implicating others are likely to be fabricated; however, depends on who the statement was made to, a statement inculpating someone else made to a friend or sibling is more reliable than one made to a cop o Minority view the entire statement should be admitted, if, as a whole, it is selfinculpatory Policy? Self-implicating statements are considered trustworthy Courts generally dont embrace statements against social interest This is different than party admissions because it can be used against someone other than the declarant

4 - Forfeiture by Wrongdoing 804b6 A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as witness (If party uses wrongdoing to make witness unavailability, other party can use unavailable witnesses statements against the wrongdoing party) Three Factors o The party offered against engaged or acquiesced in wrongdoing o That was intended to render the declarant unavailable as a witness and o That did in fact render the declarant unavailable as a witness Purpose prevent wrongdoers from benefitting from their misconduct The intent to render unavailable as a witness doesnt have to be for a specific trial, Wrongdoing is determined under 104a, preponderance standard

D. Hearsay exceptions availability of witness immaterial 803

Why? 803 proceeds on theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify non-production of the declarant even though he may be available

1. Present Sense impressions - 803(1) Key here is immediacy 911 calls may come in here May be a written statement if done shortly thereafter 2. Excited Utterance - 803(2) Key here is excitement Excited utterances allow for a longer time frame after the event than present sense impressions, simply must be made while under the stress of excitement o Lapse of time is relevant but not dispositive Policy the relationship between the event and the statement was so close that the happening impelled the words out of the declarant, with no time to lie or forget Criticism excitement increases likelihood of inaccuracy

3. Then existing mental, emotional, or physical condition - 803(3) Generally statements about the future, not the past Cant be offered to show plan or intention of someone other than declarant This exception has four distinct uses, to prove o A declarants then existing physical condition o His them existing mental or emotional condition Must be present condition, not past o His later conduct (plans about the future) When the performance of a particular act by an individual is an issue in the case, his intention (state of mind) to perform that act may be shown (Hillmon) o Facts about his will Hearsay may fit this exception if someone complains about pain or illness, but not for the purpose of medical diagnosis

4. Statements made for Purpose of medical diagnosis - 803(4) Three types of statements can be admitted o Medical history o Past or present sensations o Inception or general cause of the disease or injury (but only which are reasonably pertinent to diagnosis or treatment) Rationale rule focuses on the patient and relies upon the patients strong motive to tell the truth because diagnosis or treatment will depend in part upon what the patient says

Two part test to aid application o Is declarants motive consistent with the purpose of the rule (statement actually made for the purpose of seeking treatment?) o Is it reasonable for physician to rely on information for treatment (name of injuror may be relevant for rape, abuse; preventative treatment, not sending victim back to accuser; psychological treatment) Exception: may not come in if declarant doesnt understand important of telling the truth to doctor (young kids, retards) Also, statement doesnt need to be to a doctor, just for the purpose of obtaining treatment, so, could be statement to wife etc.

5. Recorded Recollection 803(5) Four elements must be met 1. The witness must have had firsthand knowledge of the event 2. The written statement must be a memoranda made at or near the time of the event while the witness had a clear and accurate memory of it 3. The witness must lack a present memory of it 4. The witness must vouch for the accuracy of the written memorandum To meet the fourth element, the witness must vouch for accuracy some way, like remembering recording it correctly, or that she had a habit of checking its accuracy, or that she wouldnt have signed it if it wasnt correct

6. Records of regularly conducted activity (Business) - 803(6) Purpose avoid the difficulty of finding witnesses who could speak from first hand knowledge about a business routine and often non-descript activities o Also, presumed accurate, records wouldnt help business if inaccurate Four requirements o Must be a business and a regularly kept record o Personal knowledge of source Person who makes the entry doesnt need personal knowledge o Contemporaneity Information must be recorded or gathered at the time of the event, or close to it, this isnt really enforced o Foundation testimony A witness with firsthand knowledge of the record keeping that describes the manner in which the records are kept. Allowed were people have mere circumstantial knowledge of the system. Doesnt require that person who made the record testify. Has to be what the business itself is saying, not recording what a customer or someone outside the business said

This is because business records are admissible because they are presumed accurate and there is a general lack of motive to falsify, but those assumptions dont apply to statements by third parties May be excluded if there are indica of untrustworthiness o This will happen if record was made in anticipation of litigation Sample Foundation o Record is relevant o Record is a memo or report or etc. o Witness is custodian, has knowledge of record system o Record was made by person with knowledge of facts, or made from info transmitted from someone with knowledge of the facts o Record was made at or near the time of the event/condition it records o Record was made as part of the regular practice of the business o Record was kept as part of the regular practice of the business

7. Public Records and Reports - 803(8) Purpose assumption that a public official will perform his duty properly and the unlikelihood he will remember details independently of the record 8038a embraces mundane documents describing activities of the office or agency generally uncontroversial items 8038b Covers matters observed by public officials. Must be observed pursuant to official duties about which they were bound to report. 8038c embraces factual findings by public officials o Factual Findings reports that include factual findings, which may include opinions and conclusions as well o may be excluded if they lack trustworthiness o cant be used against criminal defendants 803(8)b-c Debate concerning whether reports of law enforcement personal can be used against criminal defendant o Some say: absolute ban, and evidence cant come in under 803(6) either o Others: allow under 803(6) if routine and non-adversarial, but not cop at the crime scene stuff o Others: allow under 803(8) if routine and non-adversarial

8. Judgment of previous conviction 803(22)

Records of previous convictions, punishable by over a year, are admissible if the current crime requires conviction for a previous crime (felon in possession)

9. Residual Exception 807 Requisites of an exception to hearsay are necessity and circumstantial guarantee of trustworthiness Necessity unless hearsay statement is admitted, the facts it brings out may otherwise be lost, either because the declarant is dead or unavailable, or because the assertion is of such a nature that one could not expect to obtain evidence of the same value from the same person or other sources o Doesnt require impossibility of other evidence, but great practical inconvenience Trustworthiness 3 circumstances where hearsay is trustworthy o Where circumstances are that a sincere accurate statement would be naturally uttered, and no plan of falsification could be formed o Where, even though a desire to falsify might present itself, other considerations, such as danger of easy detection or the fear of punishment, would probably counteract its force o Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably be detected and corrected Near Misses a near miss is when a piece of evidence is close to fitting a hearsay objection but is kept out, possibly on a technicality. There are two schools of thought on whether a near miss can come in under the residual exception o if it is addressed by the rules but doesnt fit due to conditions on exception, it shouldnt come in under the residual because congress put those limitations there to kept certain evidence out o simply, if not admissible under 803/4, can try under 807 MOST courts follow this

Confrontation Clause
General Confrontation clause issues arise when out-of-court statements are admitted as proof of what they assert. Only applies to criminal defendants 6th amendment criminal defendants shall enjoy the right to be confronted with the witnesses against him Policy the primary goal of the confrontation clause was to remedy the civil law mode of criminal procedure, and particularly the use of ex parte examinations as evidence against the accused

Crawford v. Washington

Confrontation clause only applies to testimonial out of court statements Therefore, testimonial out of court statements must be excluded unless one of two exceptions are met 1. The declarant is available at trial for cross-examination 2. The declarant is unavailable and the defendant against whom the statement is sought to be introduced had an earlier opportunity to cross-examine the witness For non-testimonial out of court statements, they are admissible as long as they meet a hearsay objections

Testimonial Where does testimonial come from? o From witnesses against him according to dictionary, a witness is someone who bears testimony When is a statement testimonial? o If the person giving the statement would objectively/reasonably believe that it would be used in court o Prior testimony at a preliminary hearing, before a grand jury, or at a former trial When is a statement not testimonial o Casual remarks to an acquaintance, off-hand, over heard remarks, statements in furtherance of a conspiracy Other exceptions that continue o Dying declarations o Co-conspirators statement o Forfeiture Davis/Hammon o At least when the police are involved, the dividing line between testimonial and non-testimonial is on-going emergency o That is, when the primary purpose of the police interrogation is to aid an ongoing emergency, the statement is non-testimonial; when the primary purpose of the police interrogation is to establish or prove past events potentially relevant to later prosecution, the statement is testimonial. Forfeiture o Giles If evidence is kept out as testimonial under Crawford, to be allowed in under the forfeiture rules, defendant must have acted with the purpose of preventing the declarant from testifying o The difference is specific intent v. simple wrong doing that lead to unavailability o Specific intent to prevent testifying may be gleaned from domestic violence cases

o Also, doesnt have to be the only purpose Certificates and affidavits o Melendez-Diaz when certificates and affidavits are used, and are testimonial, whoever prepared them must testify Non-testimonial routine and non-adversarial Testimonial written at prosecutions request, intended for trial, primary purpose is to prove an element of the prosecutions case

Bruton Doctrine The Bruton Doctrine concerns the problem of an out-of-court admission made by an accomplice who is tried jointly with the defendant The confessing accomplices words are of course admissible against her as the statement of a party-opponent. If offered against the defendant however, the most likely fail confrontation clause scrutiny. Rule: if two defendants have a joint trial, and a statement against interest is used against one party that also implicates the other party, if the self-implicating party doesnt testify, that statement cant be used against the other party o The fact of the matter is that too often limiting instructions are intrinsically ineffective because the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors Cruz when a nontestifying codefendants confession incriminating the defendant is not directly admissible against the defendant, the confrontation clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendants own confession is admitted against him. o Even when defendant has confessed, a co-defendants confession can still harm, and jury still wont be able to follow limiting instructions Gray redaction of a co-defendants name doesnt cure a Bruton violation unless it removes any proof that someone else was involved o Its usually easy for jury to determine who the redaction refers too, the other defendant at the table o Dan and _____ robbed a store = not ok o Dan robbed a store = ok

Compulsory Process
The accused has the right to present witnesses in his own defense, also the right to crossexamine and compel attendance Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice

6th amendment also guarantees criminal defendants a meaningful opportunity to present a complete defense

Lay Opinions and Expert Testimony

Lay Opinions 701
Lay witnesses (non experts) can testify subject to three limitations 1. Limited to those opinions or inferences which are rationally based on the perception of the witness 2. Helpful to a clear understanding of the witness testimony or the determination of a fact in issue and 3. Not based on scientific, technical, or other specialized knowledge within the scope of 702 Witnesses must also have personal knowledge of what they are testifying about (602) Common objections to lay witness conclusions 1. Too conclusory 2. Speculation 3. Claiming specialized expertise

Finding the border between lay testimony and scientific, technical, or specialized knowledge
Witnesses who performed after the fact investigations are generally not allowed to apply specialized knowledge in giving lay testimony Lay witness may give specialized knowledge gained by virtue of his or her position in a business, but probably has to relate to the witnesses on specific business

Expert Witnesses 702, 703

1. Who is an expert? Under FRE 702 an expert is someone with specialized knowledge. One can be an expert without a degree or certification. This includes people with experience only. (E.g. property owners can testify about the price of their home.)

2. When can experts testify? When what he says will assist the trier of fact to understand the evidence or to determine a fact in issue. (FRE 702) Where expertise is only marginally helpful because the subject if familiar to all, the expert testimony may not add much. As such, a decision excluding such testimony is subject to FRE 403 balancing.

3. Bases for Expert Testimony

FRE 703 lets an expert witness base his testimony on facts or data of 3 sorts, provided they are of a type reasonably relied upon by experts in the particular field:

1. Data he learns by firsthand observation (E.g., doctor- diagnosis/prognosis) 2. Facts learned at trial (Testimony heard by the expert while sitting in the courtroom before taking the stand; info conveyed in hypothetical questions summing up evidence previously admitted) 3. Outside data (Data reasonably relied upon by other experts in the field. Note: FRE 703 was amended to block the proponent from disclosing to the jury otherwise inadmissible facts underlying expert testimony. (Unless FRE 403 balancing test sees more probative value.) Generally, FRE 703 does not allow a witness to report the opinion of others whom she considers reliable. (Because we cant cross-examine the other person). Expert must be giving THEIR opinion. They cant merely be a conduit for others ideas. Where evidence is unconstitutionally had (E.g blood test) not only should it not be admitted, but expert should not even be able to testify on the basis of it. 4. Formal Problems At common law witnesses could not testify to ultimate issues in the case, lest they invade the province of the jury. FRE 704 abolishes the ultimate issue rule. But modern courts continue to reject expert testimony concerning the proper application of legal standards. In 1984 Congress amended rule 704(b) to prevent an expert in a criminal prosecution from stating an opinion that the defendant had or lacked a mental state or condition constituting an element of the crime charged or of a defense. (This is for the jury; also there is some mistrust of experts)

5. Court-Appointed Experts FRE 706: Authorizes the court to appoint independent experts. The expert will advise the parties of his findings and submit to a deposition taken by any party. This is rare because of (1) the adversary system, and (2) the problem of compensation.

C. RELIABILITY STANDARD FOR SCIENTIFIC & OTHER TECHNICAL EVIDENCE For many years courts required that scientific evidence be generally accepted in the pertinent scientific community. (The Frye Standard) But this often kept progressive, but not yet generally accepted science methods out of court. In the light of the enactment of the FRE, Daubert discarded Frye for flexible rules based on the reliability of evidence. Kumho Tire expanded the Daubert standard to all expert testimony presenting technical or specialized material.

FRE 702 requires expert testimony to (1) rest upon sufficient facts or data, (2) to reflect reliable principles and methods, and (3) to embody a reliable application of these principles and methods.

Daubert v. Merrell Dow Pharmaceuticals (1993) The Court determined that the standard for admitting expert scientific testimony does not require general acceptance in the field. (Frye test) But, the judge should ensure that an experts testimony: (1) rests on a reliable foundation is specialized knowledge, and (2) is relevant will assist the trier of fact to understand or determine a fact in issue. Dissent: (1) This makes it unclear how a judge can determine reliability (distinguishing science from pseudo-science). (2) What about technical expertise? (Note: This was addressed in Kumho Tire) Daubert Factors on remand to determine reliability Whether the technique can and has been tested Whether the evidence/research has been peer reviewed The known or potential rate of error The existence and maintenance of standards controlling the techniques operation General acceptance in the relevant community.

GE v. Joiner (1997) Whether there should be a special high level of scrutiny for DC exclusions of evidence? Held: No. Like always we should use the abuse of discretion standard. Even when exclusions decide the case. Kumho Tire Co. v. Carmichael (1998) Kumho Tire expanded the judge-made determinations of the Daubert standard to all expert testimony presenting technical or specialized material. It is too difficult for judges to distinguish between scientific knowledge and technical knowledge. Focus is on reliability & relevance Concern: Daubert & Kumho Tire may lead to courts being flooded with junk science. But, judges can decide what to allow in connection with FRE 403 (weighing probative value against unfair prejudice) and FRE 611 (controlling the mode & order of presentation to make it efficient & to protect witnesses. Judges now determine issues of validity in pre-trial hearings. After Daubert, courts will reverse only for abuses of discretion.

Syndrome Testimony: (E.g. Experts re: battered women, rape, child abuse) Is on the border of what is allowable. Allows juries to accept testimony of victims where they may be less plausible. This is like someone saying You should believe the victim. This is allowed anyway because it:

1. Helps explain illogical behavior 2. Keeps abusers from going free 3. May be a case of forfeiture on the part of the abuser