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Professor Bascuas – Fall 2010
painstakingly compiled by justin wales
Basic Relevance and Unfair Prejudice Rule 401 – Relevance – Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. -‐Is evidence of flight relevant?: -‐Evidence of efforts to avoid capture is generally admissible in criminal trials. So evidence that someone was hiding in a closet when he had an outstanding warrant against him would be admissible. -‐It does not, however, create a presumption of guilt. Courts often will admit evidence if the defendant “had to know” he was wanted and he disappeared shortly after issuance of arrested warrant. -‐Similar kinds of proof include evidence that the accused employed false ID, destroyed or concealed evidence, faked evidence, killed threatened, or impeded witnesses, sought to escape detention, attempted suicide, tried to bribe an officer. Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible – All relevant evidence is admissible, except where otherwise provided by the Constitution, Congress, by these rules, or by other rules prescribed by the Court. -‐Example: Privileged evidence, Character evidence, hearsay statements, testimonial statements under Crawford. Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – Evidence may be excluded if it probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. -‐Advisory Committee Notes: -‐Surprise is not a reason to exclude evidence under 403 -‐In reaching a decision whether to exclude on grounds of unfair prejudice, consideration to the effectiveness of limiting instructions (Rule105), as well as the availability of other means of proof. Probative Value Substantial Risk of Unfair Prejudice JUSTIN WALES -‐ EVIDENCE 1
Old Chief v. United States – 1997, SCOTUS (403 Analysis/General Rule for Proof of convict status) Facts: ∆ was charged with being a felon in possession of a firearm. He wanted to stipulate to his felony charge, which was for aggravated assault, but the prosecution refused. Issue: Is the prior conviction relevant? Holding: Yes. It is because being a convict is an element of the crime. Issue: Is the use of the name of the prior conviction unfairly prejudicial under 403? Holding: Where the prior conviction is an element of the crime charged, evidence of a defendant's prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction. -‐We want to avoid the risk that a jury will convict a person on past acts. -‐Same motivation as 404(b) -‐An assessment of prejudice must be decided with reference to all other evidence. -‐While a prosecutor should be able to present his case however he likes, allowing ∆ to stipulate past conviction would not disrupt the narrative and could only be used to show Old Chief was a drunk and bad man.
Notes: -‐Old Chief does NOT mean that a ∆ can just offer to stipulate anything and have no evidence presented.
JUSTIN WALES -‐ EVIDENCE 2
LIMITED ADMISSIBILITY -‐Sometimes evidence can be used to prove one point, but is inadmissible to prove another point. Rule 403 allows a judge to exclude evidence if it is too prejudicial. Rule 105 authorizes a different approach: Allow evidence to come in but tell jury what it can and cannot be used for. Rule 105 – Limited Admissiblity -‐ When evidence is admissible for one purpose but not for another the court UPON REQUEST may restrict evidence to its proper scope and instruct the jury accordingly. -‐Bruton v. US – Said that even clear limiting instructions were not good enough when co-‐∆s were tried together and a statement was only admissible against one person, but not the other. COMPLETENESS
Rule 106 – Remainder of or Related Writing or Related Statements – When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. -‐Wants to make sure statements are not taken out of context. -‐Does not apply to conversations, only to writings and recorded statements. -‐Doesn’t mean you have to show the whole video, you just can’t show an excerpt that would be misleading. -‐Only applies when a party is being misleading. US v. Garcia – 5th Cir, 2008 (Rule 106 applies to written or recorded statements or testimony that is tantamount to the introduction of written or recorded statements) Facts: ∆ was caught smuggling drugs and was questioned by government officials. The interrogation was taped. At trial the government official testified from memory about what the ∆ said during the interrogation. ∆’s attorney tried to JUSTIN WALES -‐ EVIDENCE 3
Holding: FRE 106 doesn’t say exactly what “entirety” is. JUSTIN WALES -‐ EVIDENCE 4 . The officers then wanted to have the rest of the files admitted. and whether they might MISLEAD. the prosecutor may cross-‐examine about incidents from D’s past that could not be proved otherwise.introduce transcript of other portions of the interrogation into evidence. HERE. 1920. Testimony was not tantamount to the introduction of written or recorded statement. in that they were the only documents relevant to the RICO charges. witness testimony that he had a good reputation. 1990 (Completeness only includes relevant materials) Facts: Boston Police were indicted for accepting gifts from business owners for protection. The judge supplied limiting instructions three times for the jury not to assume what the circumstances/consequences of the arrest were. RELEVANCY OF CHARACTER EVIDENCE Michelson v. “Did you ever hear that on October 11th. the D. The documents were complete and not misleading. The prosecutor asked on cross-‐examination. US v. was arrested for receiving stolen goods?” All witnesses said no. US – 1948 (If ∆ brings up character. The documents that the police wanted to introduce were irrelevant. including accommodations. Holding: When the accused calls a character witness to testify to his good character. -‐Before 106 is triggered the judge has to do a fairness assessment and look at how these documents relate to the merits. Holding: The government official was testifying from memory as to a conversation and not reading direct quotations allegedly out of context. Issue: Prosecution wanted to introduce certain documents from the officer’s files. π can cross examine about specific incidents) Facts: Michelson’s bribery trial turned on the issue of whether the jury should believe the agent or the accused. D sought to introduce character evidence. Boylan – 1st Cir. and the court must define it practically and with common sense on a case-‐by-‐case basis.
Character of the Alleged Victim – To establish the defense of self-‐defense in a criminal case involving an attack by the ∆ on another person. 3. JUSTIN WALES -‐ EVIDENCE 5 . Notes on 404(a)(2) -‐∆ can introduce character evidence about the victim in a criminal case. and 609. EXCEPT 1. Cant introduce reputation for nonviolence at a trial for embezzlement. Π can introduce evidence of peacefulness in a homicide case to show that π was not first aggressor. the prosecution is entitled to introduce opposing character evidence. the ∆ is entitled to introduce evidence that the victim had a violent character.Rationalee: The ∆ assumes the risk of bringing up character evidence. -‐Can only introduce RELEVANT character traits. Rule 404(a) –Character Evidence (a) Character Evidence Generally – Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. -‐The prosecution is entitled to cross-‐examine these character witnesses by asking whether they have heard or know about SPECIFIC PAST ACTIONS by the ∆. -‐Π needs a good faith belief that specific act occurred. RULE 404(a)(1) & (2) are ONLY for criminal cases!!! Notes on 404(a)(1) -‐∆ can only introduce character evidence on his own behalf through testimony of witnesses who state an OPINION about the ∆’s general character or report on what REPUTATION the ∆ has in some community. -‐When a ∆ chooses to introduce testimony about his or her character. 608. Character of Witness – Character evidence that would otherwise be prohibited due to the general bar against propensity evidence is admissible for impeachment purposes under Rule 607. but π needs to be able to inquire about specific acts in order to verify the character. 2. -‐Prosecution can then introduce contrary character evidence about the alleged victim to refute ∆’s showing. the prosecution may respond with its own witnesses about the ∆’s character. Character of Accused – A criminal defendant may introduce evidence of “good” character related to the type of offense for which the ∆ is being tried. We want to let ∆s do this as a last resort. If the ∆ takes advantage of this opportunity.
proof may also be made of specific instances of that person’s conduct. but has introduced evidence stating that the victim was the aggressor. school. JUSTIN WALES -‐ EVIDENCE 6 . Information about specific past acts relevant to establishing a person’s character may be asked about on cross-‐examination. -‐404(a) allows Both Opinion and Reputation -‐405 allows Specific Acts where character is in issue. preparation. Must prove that the witness came from the same community (town. etc. -‐In homicide cases the prosecution can sometimes introduce opinion or reputation testimony about a victims character even if the ∆ did not open the door to character. however be admissible for other purposes. or when an accused is a witness and so requests. the court will strongly consider the proponent’s need for the evidence. work. Specific Acts to show an existence of a trait 2. claim. intent. opportunity.) b. -‐The prosecution can then introduce relevant character evidence of the ∆ that shows that he was first aggressor. wrongs. -‐Even if a ∆ has been acquitted of past charged crime. Hearings on other preliminary matters shall be so conducted when the interest of justice require. In evaluating the probative value of the evidence. Describe X’s Reputation a. evidence of a possible connection with those crimes can be used against him. or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Rule 405 – Methods of Proving Character (a) Reputation or Opinion – In every situation where character information is admissible. knowledge. plan. Witnesses Opinion that X has a trait 3. It may. identity. such as proof of motive. OTHER ACTS EVIDENCE Rule 404(b) – Other Crimes. (b) Specific Instances of Conduct – In cases in which character or a trait of character of a person is an essential element of a charge. Three Ways to Prove One’s Character 1. -‐403 analysis very important. Must show that the witness is familiar with the reputation. or defense. Wrongs or Acts -‐ Evidence of other crimes. Rule 104 – Preliminary Questions (c) – Hearing of Jury – Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. or absence of mistake or accident. it may be shown with opinion or reputation testimony.
Judge decides whether the evidence is offered for a proper purpose (Rule 404) 2. Gov’t trying to get in prior instances where D had possessed stolen goods under Rule 404(b).” Issue: What standard of proof is necessary before rule 404(b) lets evidence in? Holding: Before admitting 404(b) evidence the court must decide whether a rationale jury could rationalely believe that the ∆ committed the similar act. Judge decides whether it is relevant for that purpose 3.(d) – Testimony by Accused – The accused does not. The tapes were definitely stolen. Rationalee: Judge makes preliminary decision of whether a jury COULD believe that prior acts occurred. by testifying upon a preliminary matter. -‐Prior act must bear singular strong resemblance to the charged offense. Huddleston – 1988 (To admit evidence of past acts under 404(b) judge makes determination of whether jury COULD believe that past acts occurred) Facts: D convicted of selling goods in interstate commerce and possessing stolen property in interstate commerce. -‐Entrapment – Can show past acts to show that ∆ has committed previous similar crimes without government’s inducing him. US v. Judge decides whether its probative worth is outweighed by the risk of unfair prejudice (Rule 403) 4. JUSTIN WALES -‐ EVIDENCE 7 . Gives limiting instruction on request. Character Evidence use for PROPER PURPOSE: General Considerations – Four part test: 1. and similarities must be sufficiently idiosyncratic to permit inference of pattern. it is likely that the guy’s prior dealing with stolen goods is probative of the fact that he knew current goods were stolen. arguing that the evidence had “clear relevance as to D’s knowledge. should that block use of prior crimes? -‐Old Chief’s holding did not apply to prior crimes under 404(b). -‐Common in drug cases Modus Operandi/Identity -‐Can use past acts if it shows a “signature” or distinctive MO suggesting that the accused committed the act. The only material fact was whether D knew they were stolen. Here. (Rule 105) Intent: -‐If ∆ offers to stipulate. become subject to cross-‐examination as to other issues in the case.
Dowling v. Prosecution wants to introduce the testimony of a witness that these two guys robber her house in order to link the unidentified man to the identified man. United States – 1990 (404(b) evidence can include acquittals) Facts: 2 guys robbed a bank.. which is a higher standard that that which is needed to get something admissible into evidence. 2000 (Rule 404(b) evidence must go through 403 analysis) Facts: Arsonist accused of hiring someone to burn down his failing restaurant seeking to keep out GF’s testimony that he previously set his car on fire. Holding: Acquitted conduct can be 404(b) evidence. The prior acquittal is irrelevant because it didn’t determine an ultimate issue in this case. -‐Reverse 404(b): Ds can argue crimes of others strikingly resemble the charged crime and so the proof suggests that the other must be guilty of the offense charged to the D too. and must not include “bad character or propensity as a necessary link in the inferential chain” JUSTIN WALES -‐ EVIDENCE 8 . Hudleston says that 404(b) evidence can get in if a jury could REASONABLY CONCLUDE that ∆ committed past act. Rationalee: Double Jeopardy and Due Process do not bar testimony that a ∆ committed a crime for which he was acquitted. must (1) have “special relevance” to an issue in the case such as intent or knowledge. it gets in under 803(22) -‐Hudleston is informative: -‐The Rules do NOT require a preliminary finding by the court that the government proved a prior act. One can be identified. Prosecution’s evidence is relevant because it establishes a connection. Holding: To admit evidence of prior bad acts. -‐Proof of a prior act is relevant if the jury CAN REASONABLY CONCLUDE by preponderance that the act occurred and that the defendant was the actor. Varoudakis – 1st Cir. The judge must make a threshold decision whether the evidence is probative of a material issue other than character. In the home invasion charge the ∆ was acquitted. The acquittal said that ∆ didn’t commit crime beyond a reasonable doubt. but not the other. Proving Past Crimes -‐Its easy when a person was convicted. US v.
and his past sales do not indicate that he sold this time. 2006 (No propensity argument for reverse 404(b)) Facts: Williams convicted of possession of a firearm by a felon after police discovered a semiautomatic handgun in the bedroom where he was apprehended. but it was harmless error.. there are so many other ways of doing this that it violates Rule 403. A ∆ may introduce reverse 404(b) evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403’s consideration. JUSTIN WALES -‐ EVIDENCE 9 . US v. Williams – 3rd Cir. However. Friend’s knowledge of what cocaine is is not at issue. Rationale: Rule 404(b)’s proscription against propensity evidence applies regardless of by whom. US v.. The court should have admitted rape testimony. She also wanted to show evidence that she had been raped in prison and got a settlement to explain why she had so much money on her and why she was nervous around police. REVERSE 404(b) EVIDENCE Generally. 2003 (Reverse 404(b) evidence must still demonstrate something more than propensity) Facts: Lucas was caught with cocaine in her car and charged with intent to distribute. and degree of reasonableness to the crime charged. D was trying to introduce evidence that another individual with whom he was arrested had previously been convicted of possessing a firearm. this might change the analysis. Rationalee: The only proper purpose for linking the earlier fire was to show the nature of the relationship between dude and his girl friend. If other factors such as method the friend transported cocaine were the same in both cases. and against whom it is offered. Holding: Reverse 404(b) evidence may not be offered as propensity evidence.and (2) must pass muster under Rule 403 (probative value must outweigh danger of unfair prejudice). She contended that it was not her cocaine and wanted evidence to be admitted that her friend had prior cocaine convictions. Rule 403 doesn’t allow this to come in because it would have made it easier to blame the friend. Its obvious they were trying to make a propensity argument. Lucas – 6th Cir. Holding: Reverse 404(b) evidence is subject to the SAME standard analysis of 404(b) Rationalee: 404(b) is not really applicable. when the ∆ wants to admit past acts by other people to show that it was someone else who committed the crime. Two factors to determine probative value are remoteness in time of the other act.
Holding: Evidence allowed! Defendants have a constitutional right to a complete defense. for which Bowie was not charged. Rationale: 404(b) only applies to OTHER acts. Bowie – D. which is to protect the ∆ à the consequences of bringing in propensity evidence when bringing it to show something about ∆ is a serious risk that he will be sent to jail for character. 2005 (404(b) as a right to cross examine/showing of common plan or scheme) Facts: Two men were hired to drive a truck. Want to show that the boss was the mastermind. Evidence is admissible “for defensive purposes if it tends.. They wanted to cross examine their boss about an incident a few months p rior when marijuana was found in sleeping compartment of another truck. Inextricably Intertwined Evidence US v. acts or crimes. JUSTIN WALES -‐ EVIDENCE 10 . Holding: Evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-‐propensity purpose.Policy Debate: Should there be a different standard for 404(b) and reverse 404(b) evidence? -‐Concurrence in Lucas says to look at the purpose of the rule. was admitted in court by prosecution against ∆’s objection.C. alone or with other evidence. ∆ is limited to presenting only relevant evidence. -‐Class Notes: Different from Lucas where it could have been 1 of 2 people. US v. Montelongo – 10th Cir. 2000 (Inextricably intertwined ≠ Complete the story) Facts: Bowie was convicted of possession of counterfeit currency. Cir. If it is inextricably intertwined it is admissible because it is just evidence of the current crime. based on logic that would create a reasonable doubt. Rationalee: Evidence is used to show a common plan/scheme. 6th Amendment guarantees the right to cross-‐examine a witness. The incident took place 1 month before this one and dealt with a car crash where counterfeit money was found and then linked to a receipt at a lady foot locker. -‐Majority in Lucas makes a plain language argument. A prior specific incident. Here the ∆s are saying it is this one guy. in Lucas there was a relationship. They were pulled over and arrested after officers found marijuana in the sleeping compartment. to negate the ∆’s guilt of the crime charged against him. -‐Reverse 404(b) evidence applies to witness’ other wrongs. and the evidence in this case is relevant. -‐In Williams there is no relationship. ∆ only sought to cross-‐examine 1 witness on this discrete issue.” -‐403 Analysis: Not outweighed. There is no such risk in reverse 404(b) cases. Would not distract jurors.
The court in Bowie takes a restrictive look at the doctrine. which in this case it is not. Acts satisfy inextricably intertwined doctrine if they: -‐Complete the story of the crime on trial -‐Their absence would create a chronological/conceptual void in the story of the crime -‐They are so blended/connected that they incidentally involve/explain the circumstances surrounding. 2002 (Inextricably intertwined = Complete the story) Facts: SEC brought civil suit against brother man and had his assets frozen. investment fraud scheme. is if it the same crime. and other things. Wrapping it up: The “inextricably intertwined” doctrine basically says that if one crime is so related to the current crime the per son is on trial for then we do not have to go through a 404(b) analysis because 404(b) only deals with OTHER acts. The only exception. or tend to prove any element of the charge crime. but singular. The evidence is probative and not substantially prejudicial US v.. Rationale: The past acts were really part of a prolonged. Dude then used his funds for some investment scam and was charged with contempt of court. -‐403 Analysis: ∆s willingness to stipulate does not tip the balance in every case. Under Bowie it is damn near impossible to connect a past act to a current crime. HERE. the court says. obstruction of justice. Government wanted to offer evidence of ∆’s conduct (why evidence was frozen in the first place). the acts in question were a prelude to the current charge. Senffner – 7th Cir. -‐There is a legitimate reason for allowing the evidence under 404(b)…it establishes Bowie’s intent to defraud and his knowledge of the bills being fake. It also corroborates his confession to the FBI. Holding: 404(b) doesn’t apply to evidence that is inextricably intertwined to the current case. -‐REJECTS “Complete the story” rule as an exception to 404(b). It is either a part of the current JUSTIN WALES -‐ EVIDENCE 11 .
or it is not and you need a legitimate 404(b) reason for getting it in. -‐Criminal Exceptions: (b)(1) -‐ (A) Evidence of specific instances of sex by the alleged victim offered to prove that a person other than the accused was the source of semen. Rule 414 – Evidence of Similar Crimes in Child Molestation -‐ (a) Evidence of a ∆’s past sexual offense is admissible to support an inference that his commission of such an act in the past increases the likelihood that he or she committed the charged offense. and gets in as evidence. injury. and therefore get the evidence in without a 404(b) reason. evidence of the ∆’s commission of another offense or offenses of sexual assault is admissible. Rule 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation JUSTIN WALES -‐ EVIDENCE 12 .crime. -‐(B) Evidence of specific sexual behavior between victim and accused offered to prove consent -‐(C) Excluding it would violate the constitutional right of the ∆. prohibition does not apply if evidence of victim’s sexual behavior or sexual traits passes a balancing test. Where risk of unfair prejudice and probative value is close then evidence will be excluded. Under Senffner. -‐Civil Exceptions: (b)(2) – In civil cases. you can consider a past act that helps tell a complete story as part of the current crime. Character in Sex Offense Cases Rule 412 – Sex Offense Cases – In criminal or civil trials. evidence is inadmissible if offered to prove a victim engaged in other sexual behavior or had a sexual predisposition. and may be considered for its bearing on any matter to which it is relevant. or other physical evidence. Rule 413 – Evidence of Similar Crimes in Sexual Assault Cases -‐(a) In a criminal case in which the ∆ is accused of an offense of sexual assault.
2010 (FRE 412 and 413 MAY be unconstitutional) Facts: Cox convicted of sex abuse for sexually abusing his younger cousin.’ which define ’the community’s sense of fair play and decency. -‐Free from individual thought or judgment about how to do it. The state presented evidence of Cox’s prior sexual abuse of two other cousins. Cox – Iowa. -‐Example: Always parking in the same spot. Must be semi-‐automatic/2nd nature 2. Can argue about how many times. Supreme Court should look into it. It allows introduction of evidence of a party’s past sexual offense or child molestation to support an inference that his commission of such an act in the past increases the likelihood that he or she committed the conduct charged in the civil suit. -‐Some courts say its not unconstitutional because Rule 403 will get rid of evidence that violated DPC HABIT Rule 406 – Habit. Must be a response to a very specific situation -‐Same standard as Hudleston – A reasonable juror COULD believe that you have done this enough times in the same way that it becomes 2nd nature. Rule: An evidentiary rule violates DP if it "violates those fundamental conceptions of justice which lie at the base of our civil and political institutional. -‐One’s regular response to a repeated situation -‐TWO REQUIREMENTS FOR HABIT: 1. 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. whether corroborated or not and regardless of the presence of eyewitnesses. -‐Requires the task to be performed OFTEN.’" Rationalee: FRE 412 and 413 may violate DPC. -‐(a) Only provision in the FRE that allows character evidence to be I ntroduced in a civil case as relevant to the issue of someone’s out of court conduct. State v. JUSTIN WALES -‐ EVIDENCE 13 . Holding: Admission of prior bad acts soley to show a general propensity instead of a legitimate issue violates the DPC of Iowa’s Constitution. Routine Practice – Evidence of the habit of a person or of the routine practice of an organization.
such as proving ownership. a defect in a product’s design. π got doctor to say restarting JUSTIN WALES -‐ EVIDENCE 14 . and then taken off of medication before surgery. feasibility -‐Feasibility: Courts are split on whether feasibility must be technically possible (narrow. after an injury or harm allegedly caused by an event. evidence of the subsequent measures is not admissible to prove negligence. McDonald – (Md. or impeachment. Due to an emergency with another patient. control. -‐At trial. 1997) Facts: Guy had heart attack and went to hospital. if taken previously. control. Tuer v. EVIDENCE EXCLUDED FOR POLICY REASONS SUBSEQUENT REMEDIAL MEASURES: Rule 407 -‐ When. would have made the injury or harm less likely to occur. if controverted. Ct. Was put on medication. App. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose. culpable conduct. -‐Still subject to Rule 403 -‐Exceptions: Can come in to show ownership. measures are taken that. guy’s surgery was postponed and he was not put back on medication (due to hospital policy). or feasibility of precautionary measures. Dude died and hospital then changed its protocol. Tuer) or can’t be done after weighing overall benefits -‐Does subsequent remedial measures apply to products liability cases? -‐According to FRE 407 the exclusionary rule DOES apply. or a need for a warning or instruction. -‐Social policy of encouraging people to take steps in furtherance of added safety.. a defect in a product.
Companies want to make money. TECHNOLOGICALLY. -‐Feasibility Rule – Evidence admissible if ∆ contends that the measures were not PHYSICALLY. Rule: Feasibility is ALWAYS an issue in products liability cases Rationale: Policy purpose of 407 doesn’t apply to strict liability cases. An individual might not take action if it will be used against them. or amt of a claim that was disputed as to validity or amt. Rationale: The doctor did not make a blanket assertion that resuming the drug would be unsafe. Holding: π SHOULD be permitted to prove that afterwards the manufacturer changed the metal in gearboxes from aluminum to malleable iron because only acts as a shield against potential liability. and someone dies at T3 in a car produced during T1. 1974 (Different than FRE – SRM doesn’t apply to product liability cases) Facts: Vehicle plunged 500 feet to the bottom of a canyon. or ∆ claims the alternative wouldn’t have prevented the accident. Notes: GM makes a car at T1. or ECONOMICALLY possible under the circumstances.-‐-‐Evidence of the following is not admissible on behalf of any party. they improve the car at T2. Ault v.the medication would have been unsafe. Under FRE you can bring in evidence of the change because the remedial measure is only barred if it is SUBSEQUENT TO THE ACCIDENT. or to impeach through a prior inconsistent statement or contradiction: JUSTIN WALES -‐ EVIDENCE 15 . when offered to prove liability for. NARROW FEASIBILITY (Tuer) -‐ Disallow evidence unless ∆ contends measures NOT possible. -‐Feasibility is not controverted when: -‐∆ contends that the practice was chosen because of its advantages over the alternative. Π claimed it was because of a metal gearbox. International Harvester – Cal. rather he said that it would not be advisable. Holding: Evidence NOT admissible because doctor did not controvert her claim that it was feasible to administer the medication. Doctor made judgment call—impeachment cannot work because he is not lying. invalidity of. or ∆ merely asserts that the practice is acceptable. Civil Settlements: Rule 408 – Compromise and Offers to Compromise (a) Prohibited Uses.. Plaintiff argues that SRM is admissible to show feasibility and impeach doctor’s testimony that restarting meds would be unsafe. -‐Change in protocol did not suggest doctor’s believed judgment call not appropriate at the time. so they will therefore always want to avoid liability.
or enforcement authority. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Crim. negating a contention of undue delay. and proving an effort to obstruct a criminal investigation or prosecution. -‐Promotes policy of compromise -‐Hypothetical: Car accident involving 3 people. can π cross-‐examine X on the settlement? -‐Yes. Pro. in any civil or criminal proceeding. or comparable state procedure regarding either of the foregoing pleas.-‐-‐This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’ bias or prejudice. and Related Statements Except as otherwise provided in this rule. evidence of the following is not. -‐Civil settlements later used in criminal trials: -‐FRE 408 was amended in 2006 to apply when statements in civil settlement negotiations are later offered in criminal cases. (b) Permitted uses. investigative. Notes: -‐Reason we exclude is because offer to pay a small amount is not necessarily a concession of liability. admissible against the D who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later w/drawn. (2) a plea of nolo contendere.(1) furnishing or offering or promising to furnish-‐-‐or accepting or offering or promising to accept-‐-‐a valuable consideration in compromising or attempting to compromise the claim. except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory. such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously JUSTIN WALES -‐ EVIDENCE 16 . However. can use the settlement as proving bias of X. or (4) any statement made in the course of plea discussions with an atty for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later w/drawn. -‐Exclusionary rule doesn’t apply when someone is trying to obstruct justice PLEA NEGOTIATIONS: Rule 410 – Inadmissibility of Pleas. Can π introduce evidence that Driver paid off X to show his liability? If you call X as a witness. Plea Discussions. -‐A party cannot immunize factual information by talking about it in negotiations. (2)conduct or statements made in compromise negotiations regarding the claim. Driver pays off one of them. If the opposing party can get proof of the fact through another way it is admissible.
made the promised recommendation to the Atty Gen.. hospital. D waived objection to the admission of incriminating statements and gave confession. Particularly useful for insurance companies. or (ii) in a criminal proceeding for perjury or false statement if the statement was made any the defendant under oath. Atty Gen would ask for life imprisonment instead. or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Payment of Medical Expenses: Rule 409 -‐ Evidence of furnishing or offering or promising to pay medical. Pros. Holding: Waived statements may be used in the government’s case in chief Rationale: ∆ knowingly and voluntarily waived his right to object to statements made during failed plea negotiations under FRE 410. Notes: -‐Must be made to a prosecutor…not to detectives -‐You need an objectively good reason to believe this is a plea bargain -‐Test: 1. -‐Responsible behavior does not necessarily prove legal fault. -‐Such payment or offer is usually made from humane impulses and is not an admission of liability. on the record and in the presence of counsel. -‐This rule does NOT extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. -‐Statements accompanying an offer to pay medical expenses might not be excludable under 409. Liability Insurance: JUSTIN WALES -‐ EVIDENCE 17 . US v. promised him not to seek death penalty for the murder if D gave a full confession that could be used against him in trial. Later changed his mind and asked for new atty and went to trial. After consulting w/ atty. Sylvester – 5th Cir. SCOTUS said these waivers are okay. The expectation was reasonable given the circumstances -‐Exception: -‐Perjury and false statement prosecutions -‐Rule of completeness -‐Practical Manners – Many times a prosecutor will not bargain unless the ∆ waives his right to have the statements confidential.w/ it. To hold otherwise discourages assistance. 2009 (∆ can waive right to prevent plea from evidence) Facts: D on trial for murder. but such statements could be excludable if suggests that the parties were trying to settle under 408. Pros. ∆ exhibited an actual subjective expectation to negotiate a plea 2.
“Hearsay” is a statement.. Under it anything imbedded in a statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person. offered in evidence to prove the truth of the matter asserted . Wright offers evidence of 4 letters written to Marsden from others (now dead) to show that Marsden was competent under the theory that someone wouldn’t write a letter to a retarded person. Holding: The letters are hearsay because they imply a statement that the dead guy is sound. 2005 (NOT FRE -‐ Intention of declarent doesn’t matter) Facts: Eric’s murder trial. -‐Prevents the conflicting inferences that may be drawn—that more or less care was used b/c insured. Mother wants to testify that her child experienced behavior changes and said “is Eric going to get me?” JUSTIN WALES -‐ EVIDENCE 18 . A “declarant” is a person who makes a statement. such as proof of agency. (b) Declarant. Notes: -‐Wright is too broad. or control. . Maryland – Md. is hearsay. -‐Prevents jury from deciding cases based on a belief that the insurer will pay the judgment. (c) Hearsay. if it is intended by the person as an assertion. Tatham -‐ 1837 (No longer the law) Facts: Will dispute.Rule 411 -‐ Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. other than one made by the declarant while testifying at the trial or hearing. Stoddard v. assertions have to be intended. -‐This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose. or bias or prejudice of a witness. ownership. Doe d. Wright v. ASSERTIVE AND NON-‐ASSERTIVE CONDUCT Under the FRE. Rule 801 – Definitions The following definitions apply under this article: (a) Statement. HEARSAY an out-‐of-‐court statement offered to prove the truth of the matter asserted. whether deliberately or not. .
Rationale: The words are only relevant if stemming from a belief that she saw the D commit the murder. Impeachment – Prior inconsistent statements are not hearsay when offered to impeach. Since the matter asserted in the statement must be true. regardless of the truth. -‐A question may be a statement because it may communicate a factual proposition. the statement is hearsay. Since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn. Under FRE 801 – Stoddard is at odds with FRE. WHEN IS A STATEMENT NOT HEARSAY? -‐A statement is not hearsay when it is not used to prove the truth of the matter asserted. -‐An assertion cannot be an assertion unless intended to be one -‐Other Examples: v “I didn’t tell them anything about you” hearsay when offered to prove truth of implication that defendant was co-‐defendant in check fraud v statement “nice to meet you” hearsay when offered to prove truth of implication that declarant was meeting the listener for the first time and thus not a member of the drug conspiracy v letters detailing request for recipient to give false alibi testimony hearsay when offered to prove truth of implication that declarant and co-‐conspirator defendant were guilty v note found in garage by co-‐defendant that he was nervous was hearsay when offered to prove truth of implication that declarant had knowledge and possession of drug lab materials v question “does Peggy know I’m here?” hearsay when offered to prove truth of implication that declarant personally knew Peggy. Effect on listener or reader – What the effect declarant’s words had on the listener. 3. Holding: Declarant’s question “is Erik going to get me?” is hearsay b/c impliedly communicating that she had witnessed D assaulting the victim and was offered to prove the truth that the declarant had in fact witnessed the D assaulting the victim. JUSTIN WALES -‐ EVIDENCE 19 . a reduction in the risk of sincerity is not present despite the ACN. regardless of assertive aspect.Issue: Is statement hearsay or just used to show effect on the child? Rule: A statement is hearsay when offered to prove the truth of the implication of an assertion. Must offer sufficient evidence to establish X heard the statement. 1. If declarent didn’t intend to communicate that proposition. Verbal Acts – Words have independent legal significance. The intention of the declarant is irrelevant. the words are not hearsay. Under FRE a statement is only a statement if the declarent intended to communicate the factual proposition which the words are offered to prove. 2.
JUSTIN WALES -‐ EVIDENCE 20 . the wife didn’t testify because of state marital privilege. They are elements of a physical description. UNLESS ∆ had a prior opportunity for cross-‐examination. 5. We need not decide in this case whether the 6th Amendment incorporates an exception for testimonial dying declarations. -‐No problem if declarant is available to testify and can explain statements. Guarantees the right to cross-‐examine witnesses testifying against him. -‐Improper to show that the speaker actually believed it 6. -‐What is testimonial – Statements given to government with a reasonable expectation that they would be used in trial. Footnotes/Unanswered Questions: -‐Dying Declarations – Although many dying declarations may not be testimonial. there is authority for admitting even those that clearly are. Constitutional guarantees shouldn’t be left to the rules of evidence. Crawford v. in which she contradicted Crawford’s argument that he stabbed the man in self-‐defense. Crawford claimed this violated his 6th Amendment right to cross-‐examine. pointing and identifying someone. tags. Holding: The Confrontation Clause does NOT allow testimonial statements of an unavailable witness. HEARSAY AND THE CONFRONTATION CLAUSE -‐Confrontation Clause ONLY applies in CRIMINAL CASES. Washington – 2004 (Complete bar to testimonial evidence. 4. Prosecution played a tape of wife’s statement to police describing the stabbing. not subject to prior cross. Rationale: The Roberts doctrine was confusing. At trial. Circumstantial evidence of memory or belief – Child says father killed her brother indicates belief. Circumstantial evidence of state of mind – FRE 803(3) creates a hearsay exception for a statement describing a state of mind…such a statement can be admitted even if its hearsay. Verbal Objects – Logos. by an unavailable witness) Facts: Crawford stabbed a man he claimed tried to rape his wife.
or any pretrial motion or proceeding. Davis. Victim would not testify. but told police nothing was wrong. the CC allows statements made to police during investigation of a crime. Washington – 2006 (Ongoing emergency doctrine) Davis: 911 call at crime scene re: domestic disturbance. 2) the testimonial statements are not being used to prove the matter asserted. probably a reasonable person in the speaker’s position. Suspect had just fled. not the police. -‐Out of court statements can still come in without cross-‐testimony when 1) the statements were in furtherance of a conspiracy. -‐Primary Purpose Test – Not testimonial if primary purpose is to resolve an ongoing emergency. start off as non-‐testimonial and then turn into testimonial. -‐Testimonial Statements – Calm and akin to giving testimony on witness stand. If circumstances OBJECTIVELY indicate that there is no ongoing emergency. The Cross-‐Examination Factor • Both a deferred opportunity and a prior opportunity (when witness is unavailable) to cross-‐examine suffice. w/ fresh injuries. Crawford. Also. -‐Testimonial Statements -‐ when circumstances indicate no such ongoing emergency. Police arrived w/i four minutes and observed victim in shaken state. though not made with the intent to preserve evidence. JUSTIN WALES -‐ EVIDENCE 21 . Asked wife again what happened and she told them that the husband hit her and signed a battery affidavit Holding: Under Crawford. and police couldn’t testify as to the source of her injuries Hammon: Domestic disturbance. where the statement describes criminal acts and everyone knows they will be used in investigation or prosecution. Statements COULD. then it is testimonial evidence. to be admitted without allowing ∆ to cross-‐examine the person who made the original statement. Davis v. The husband told police they were in an argument. -‐NOT statements to friends -‐Who’s intention matters? -‐Probably the speaker. and the primary purpose of the interrogation is to establish or prove past events. and 3) dying declarations (although court didn’t officially rule on this. however. and primary purpose of interrogation is to establish or prove paste events for a criminal prosecution. Also embraces statements to a police officer. -‐On going emergency – Statements made during an ongoing emergency are not testimonial. The two were separated. -‐Testimonial – At least actual testimony given at trial or before a grand jury. Wife was found alone on front porch appearing somewhat frightened.
even if not mirandized. -‐A history of domestic violence can be used to show intent US v. Summers – 2005 (Statements to police. Rationale: FRE 804(b)(6) codifies forfeiture by wrongdoing. could be testimonial/Intent of assertion based on declarant’s intent) Facts: 2 guys robbed a bank. Forfeiture by wrongdoing only applicable when ∆ made declarant unavailable for the purpose of preventing testimony. it would be circular to rule that he killed her in order to prove that he killed her. Opportunity for cross must still be “full and effective.” JUSTIN WALES -‐ EVIDENCE 22 . and are not bound to the rule of evidence. in his concurrence. calls this circular. Can evidence be admitted even if she is not available? Holding: EVIDENCE NOT ADMITTED. Green (1970): Statement -‐ that D had called him (porter) to sell drugs and deliver them to him. Can now admit inconsistent statements (deferred cross). They went to an apartment of a 4th person. Court -‐ declarant now telling a different story in court. he claimed self defense. Souter. implying that there was a 3rd accomplice. They got into a moving car afterwards. -‐Judge must decide by a preponderance that ∆ killed witness with intent to stop witness from testifying. California – 2008 (Forfeiture by wrongdoing/Must show that ∆ prevented witness from testifying with the INTENT to prevent testimony) Facts: When Giles was tried in court for murdering his ex-‐gf. They were pulled over and one of the guys said “How did you guys find us so fast?” Issue: Whether the question “How did you guys find us so fast” violates the CC because the man who said it was unavailable to be cross-‐examined. Deferred Cross: o Some exceptions require the declarant to be cross examined at trial about something he said earlier. The ex-‐gf had previously given testimonial evidence to cops saying that Giles threatened to kill her. Declarant -‐ Porter. o California v. ***Rules 801(d)(1) and 803(5) -‐ exceptions to hearsay which only operate when there is a deferred opportunity to cross. Giles is innocent until proven guilty. -‐Judges decide in a pretrial conference.• Giles v. All 4 men left the apartment.
He wasn’t asking an ambiguous question for the purpose of eliciting a response. Stepfather charged but acquitted of the murder. HEARSAY UNDER RULE 801 Betts v.” Holding: The statement is not hearsay b/c it is admitted to indirectly and inferentially show the mental state of the child at the time of the custody proceedings. -‐Shows mental state (she hates the stepfather) regardless of the truth of the statement. but court says it was because the declarant was clearly intending to assert guilt. and the statement is (A) inconsistent with the declarant’s testimony. Shows that child w/ mother and stepfather would create a strained relationship. . Betts – Washington Ct. Rule 801(d) – Statements which are not hearsay (1) Prior statement by a witness. -‐Testimonial? A statement is testimonial if a REASONABLE PERSON in the position of the declarant would objectively foresee that his statement might be used in investigation or prosecution of a crime. violates CC. 1970 Facts: Dad sues to get custody of daughter who is in foster care after her little brother dies of injuries. -‐If admitted as a hearsay exception. must meet the reliability requirement (but doesn’t here b/c it’s NOT hearsay). -‐Dude was in police custody and the statement was so close to a confession that a reasonable person would foresee the statement used against him.. Foster mom testifies that daughter tell people re: stepfather “He killed my brother and he’ll kill my mommy too. Rationale: Not offered for truth of the statement. Crawford says the admission of testimonial hearsay by an unavailable declarant with no prior opportunity to cross. Requirements for Prior INCONSISTENT statement: 1) Witness must be cross-‐examinable concerning the statement JUSTIN WALES -‐ EVIDENCE 23 . or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. or (C) one of identification of a person made after perceiving the person . or other proceeding. and was given under oath subject to the penalty of perjury at trial. -‐An assertion is based on a declarant’s intent. App. hearing.Holding: EVIDENCE NOT ADMISSIBLE. or in a deposition. The declarant testifies at the trial or hearing and is subject to cross-‐examination concerning the statement. -‐Child’s state of mind is important in determining what is best of the child’s welfare (which is what a custody proceeding does). . Rationale: -‐Hearsay? Government says no.
ACN Notes: -‐Prior inconsistent statements have traditionally been accepted as admissible for impeachment. FRE 801(d)(1) allows them to come in as substantive evidence. -‐Risk of unreliability not there because declarant is available to explain and the past statements were made under oath. US v. Cisneros-‐Guiterrez – 5th Cir., 2008 (Prior inconsistent statements) Facts: Three people arrested for meth. One of them plead guilty and signed a factual resume that he had possessed the drugs and the other dude drove him to get drugs. During his plea hearing, the brother admitted the facts of the resume were true. At ∆’s trial, dude was called to stand but said he couldn’t remember. Prosecution wanted to bring in contents of factual resume under FRE 801(d)(1)(A). Holding: FACTUAL RESUME ADMITTED. The judge decides whether feighned memory loss can be considered inconsistent under Rule 801(d)(1). -‐A statement is NOT hearsay if the declarant testifies at trial or hearing and is subject to cross concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath. Rationale: A witness’ memory loss can be considered inconsistent under FRE 801(d)(1)(A). Judge decides based on a variety of factors if memory loss is real or not…relationship between parties, time frame, amount you forget, does it make sense. -‐“Inconsistent” does NOT mean diametrically opposed Requirements for Prior CONSISTENT Statements: 1) Witness must be cross-‐examinable 2) The statement bust be “consistent” with present testimony -‐Prior consistent statements do NOT have to be under oath 3) Must be offered to rebut a charge of “recent fabrication or improper influence or motive. -‐Incentive to fabricate must have occurred AFTER statements were made (Tome) -‐This is a way of getting consistent statements in as substantive evidence. JUSTIN WALES -‐ EVIDENCE 24
2) The prior statement has to be inconsistent with present testimony 3) The prior statement has to be made under oath in prior proceeding/depo
Tome v. US – 1995 (Time requirement for prior consistent statements) Facts: ∆ is charged with sexually abusing his daughter. ∆ countered that the allegations were concocted so daughter wouldn’t be returned to him (for custody). In order to rebut charge that testimony was fabricated so she could live with mom, prosecution presented witnesses who recounted out-‐of-‐court statements that daughter made. Holding: NOT ADMISSIBLE Statements offered to rebut under Rule 801(d)(1)(B) must be made before the charged recent improper influence or motive. Rationale: Here, statements were made after improper influence had arisen. US v. Prieto – 11th Cir., 2000 (Just talking to police doesn’t mean you are motivated to get a better deal…must be more for improper motive) Facts: Guys tried to rob UPS truck with a Corolla. Court admitted prior consistent statements of a witness to a police officer following the witness’ arrest. ∆ tried, and failed, to argue that a person under arrest is always improperly motivated to talk to police. Holding: Just talking to police, without talk about plea agreement, does not constitute a motivation to fabricate. Rationale: Witness was read his Miranda rights and cooperated with the police without any discussion of how he would benefit. Requirements for Statements of Identification: 1) Declarant testified at trial 2) The statement is one of identification of a person made after perceiving him Hawaii v. Motta (Hi. 1983) (Statements of Identification) Facts: Woman was robbed and gave description to sketch artist. Sketch was submitted as evidence. Holding: The sketch is a statement, but under 801(d)(1)(C) it gets in. Rationale: A sketch has the same effect as if the victim made a verbal description of the suspect’s physical characteristics. We admit this type of evidence because it is more reliable then description made months after event. ADMISSIONS BY A PARTY OPPONENT Rule 801(d)(2) – Admission by party-‐opponent -‐ A statement is not hearsay if-‐-‐ The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a JUSTIN WALES -‐ EVIDENCE 25
person authorized by the party to make a statement concerning the subject, or (D) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Individual Admissions – 801(d)(2)(A) -‐Any statement that is relevant and offered by opposing party. Includes guilty pleas, deposition testimony, or casual statements. -‐Declarant actually had to have wanted to make the statement—sleep talking wouldn’t count. -‐Doesn’t matter if declarant had knowledge of what he is talking about. Bruton v. US – 1968 (Confession by one co-‐∆ cannot be used to implicate other ∆) Facts: Bruton and Evans were arrested for armed postal robbery. A postal inspector testified that Evans made an oral confession while being interrogated in jail, saying “Bruton and I committed the robbery.” Lower Court admitted the evidence and gave limiting instructions saying confession only applied Evans. Bruton was convicted. Holding: Admission of co-‐∆’s confession that implicated ∆ at joint trial constituted prejudicial error even though lower court gave limiting instructions. Rationale: The statement was testimonial and Evans was unavailable to testify because he was a party to the crime. CC says you cant offer testimonial evidence against someone without declarant being able to cross-‐examine. -‐Limiting Instructions do not protect ∆ enough. -‐Not a co-‐conspirator statement because crime is over by the time Evans confessed. Problems: -‐Bruton suggests that the statements should be redacted. What if it is still possible to figure out who the person is within the redaction? Most courts say that this still is a violation and the confession has to be rewritten. JUSTIN WALES -‐ EVIDENCE 26
Vazquez v. Wilson – 3rd Cir., 2009 (Bruton violation occurs when jury can figure out who redacted confession refers to when viewed with other trial evidence) Facts: Guy is murdered and shot at while in cab. Three men in the car following this cab: Santiago, Vazquez, and Rivera. Santiago is caught and says V is shooter. S wants to use un-‐redacted version of his statement because it shows him helping police and putting V as shooter. Jury instruction was given not to consider S’s statement against V. Holding: Use of generic name in place of actual name is not sufficient to satisfy Bruton Rationale: In Bruton, we held that D is deprived of his rights under CC when non testifying co-‐D statement naming him a participant in the crime is introduced in their joint trial, even if the trial court instructs the jury to consider the statement only against the nontestifying co-‐D. Use of generic name in place of actual name is not sufficient to satisfy Bruton. Prosecutor had made it clear to jury that S had ID’d V as shooter and so no different if redacted or not. -‐ This case stands for the idea that redacting has to be totally sanitized. It’s so bad that you can only use it if you change words around, then it’s not clean redactions and you have to sever the trials. B/c redaction didn’t pick out exactly who it was, the fact that there were 3 guys and could still be the 3rd guy and not necessarily the other guy on trial, still not good enough and must sever trials. Jury will know it was either guy A or B. ADOPTIVE ADMISSIONS – 801(d)(2)(B) If X manifests his adoption or belief in the truth of a statement/writing of another, he becomes the declarant and the statement is his own. Adoption by Silence: 1. The party heard the statement 2. The matter asserted was within his knowledge 3. He was able to reply 4. The nature and occasion of the statement was such that he would likely have replied if he did not mean to accept what was said
JUSTIN WALES -‐ EVIDENCE 27
There was nobody else present. Statements made by persons authorized by party to make statements ARE admissible as substantive evidence if offered against that party. -‐Miranda Warnings is was protects you from silent adoptions. At trial. Holding: Silence in wake of Miranda warnings could be you just exercising your right. Ohio – 1976 (Silence after being given Miranda warning does not constitute an adoptive admission) Facts: ∆s were arrested and given Miranda warnings. ∆ had shown that he wasn’t afraid to confide in the guy in the past. Governs ONLY statements by agents who have speaking authority.” ∆ appeals based on the claim that this was inadmissible hearsay. ADMISSIONS BY AUTHORIZED SPEAKERS OR REPRESENTATIVES – 801(d)(2)(C) 1. This case: sometimes silence can’t be used against you (Miranda). viewed as admission by another 2. JUSTIN WALES -‐ EVIDENCE 28 . Doyle v.. ∆s were convicted in separate trials. Holding: Evidence OK. Statement was made in presence of another witness and appellant did not object when girlfriend made statement. a 5th witness testified that before the robbery ∆ told him his plan and that he saw ∆ 3 weeks later with money and diamonds. Hoosier – 6th Cir. The use for impeachment purposes of petitioner’s silence at the time of arrest and after receiving Miranda warning violates DPC of the 14th Amendment. At trial. -‐This does not apply to pre arrest silence though and court later upheld use of pre-‐arrest silence where police neither question the D nor deliver Miranda warnings (concluded that commentating on failure of D to take witnesses and violated his 5th). and is more than willing to talk about his crimes. If not Mirandized then silent adoption exception doesn’t kick in. -‐Evidence excluded if: -‐The party did not understand the statement or its significance -‐Some physical or psychological factor explains lack of reply -‐The speaker was someone the party was likely to ignore -‐The silence came in response to questions from the police US v. 4 witnesses ID him. Will testify that ∆’s gf said “that ain’t nothing. Rationale: Proper human behaior indicates that he would’ve and should’ve denied his GF’s statements ASAP. ∆s took the stand and gave a story he never told police. you should see the sacks of money in our hotel room. 1976 (Silent adoptions) Facts: ∆ was convicted of armed robbery.
Then meeting of directors where someone said “Sophie bit a child. He can speak for them. Statements were made during the course of the conspiracy 3. ADMISSIONS BY EMPLOYEES OR AGENTS – 801(d)(2)(D) 1. -‐You don’t need to have personal knowledge of facts under declarant’s statement. The statements were made in furtherance of the conspiracy § Available in both civil and criminal cases regardless of if there is a conspiracy charge. Declarant and ∆ conspired 2.” Are these statements admissible against the Wild Candid Survival Center since Mr. Even though agent lacked personal knowledge.” Later experts see that bites on child are not actually a wolf. the co. Poo-‐Sophie bit). Must be made DURING existence of employment § Once employment ends you can’t bind employer § Does not apply to government workers Mahlandt v. Wild Candid Survival – (8th Cir. -‐The board minutes will be out against Poos.. JUSTIN WALES -‐ EVIDENCE 29 . § Does not matter if conspirator is available or not § Conpiracy period ends before the concealment phase. Poo’s left message that says “Sophie bit a child that came in our yard. The president of the Wild Candid Survival was not in so Mr. 403 will still apply. Poo was an agent of them? In this case there is both the corporation D and the individual D.§ Statements must be within the SCOPE of agent’s speaking authority. adopted a belief in truth of his statements. Must be made within scope of agency/employment § No personal knowledge requirement 2. Holding: Mr. Poo was agent and this happened during scope of employment. Declarant does not need personal knowledge of what he is saying (Mr. 1978) (Admission of employees can be used against employers if employee made admission during employment period and within scope of employment) Facts: Wolf chained to fence and bites boy. so it is admissible against the corporation. -‐If this were an email/text. There the wolf stuff was clearly within the scope of his employment. it would count as an admission. CO-‐CONSPIRATOR STATEMENTS – 801(d)(2)(E) Statements admissible if: 1. but not to Poos statement. but they cannot speak for him.
Here. § CANNOT USE STATEMENT ALONE. can look at the statements sought to be admitted. The statements indicated that the friend had agreed w/ Lonardo to buy coke and distribute it. Bootstrapping: Using a piece of evidence for its own pre-‐condition of admissibility. in considering whether a conspiracy occurred for evidentiary purposes. in his car. were supported by other facts (∆ showing up at prearranged spot. Lonardo. who stated over the phone w/ an informant that he had a “gentleman friend” who wanted to buy drugs. MUST have other evidence. in making preliminary factual determinations. US – 1987 (Judge must decides by preponderance of the evidence whether the co-‐conspirator exception applies) Facts: Declarant. cocaine was picked up. -‐The judge must find that a conspiracy existed by a preponderance of the evidence. Bourjaily says that a judge. UNRESTRICTED HEARSAY EXCEPTIONS PRESENT SENSE IMPRESSIONS JUSTIN WALES -‐ EVIDENCE 30 . Holding: A court. Rational: Judge decides under Rule 104(a) whether coconspirator requirements are satisfied by a preponderance standard. This establishes existence of conspiracy. may examine the hearsay statements sought to be admitted to meet the preponderance standard. Also revealed that the friend would be at the hotel parking lot. and would accept the cocaine. the statements. had money in the car). Bourjally v. D was arrested after Lonardo placed a kg of coke into his car and the agents fond over $20. which can be considered.000 in cash in D’s car.
but cannot substitute it with an out of court oral narrative. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition. -‐Court thinks cop is just trying to get around the rule barring police reports. Holding: NOT a present sense impression. perceiving it Why is it reliable? Because you don’t have time to make up a story or lie if you are just saying what you are seeing. About the Event 2. Would be different if officer was involved in a car chase and was just speaking. (1) Present sense impression. Officer made a speaking report into the microphone of his dashboard camera. REQUIREMENTS: 1. An officer’s factual observations recorded on video at a DUI stop are not admissible under the present sense impression exception. the officer calculated what he was going to say. EXCITED UTTERANCES JUSTIN WALES -‐ EVIDENCE 31 . Here. or almost while. Here he was too calm. While. Fischer – Tex. Availability of Declarant Immaterial. observing the person off camera and then saying what he saw. Rational: The present sense impression doctrine is meant to allow in unreflexive utterances. Rule 803 – Hearsay Exceptions. Would walk back and forth. or immediately thereafter. 2008 (Police video does not equal present sense impression) Facts: ∆ was pulled over for not wearing seatbelt. There is also no problems of memory US v. An officer can testify in Court as to what he saw.
producing statements free from conscious fabrication. but that’s not enough. Cir. Statement influenced by startling event 3. not a quick statement. which was more than enough time to reflect. Time: The duration of the state of excitement is determined by the character of the event. Statement relating to the event Why is it reliable? Excitement stills the capacity for reflection. At trial his estate wanted to introduce narrative by his mom from a phone call she got about 30 minutes after her son’s confrontation with police. Statement wasn’t a spontaneous outburst. City of Oakland – Cal. A statement is not admissible as an excited utterance if the declarant is not under the stress of the event such that his reflective capacity is stilled. but could last hours ) JUSTIN WALES -‐ EVIDENCE 32 . There was at least 20 minutes between event and phone call. -‐He might have been upset. US v. Rational: The victim’s statement is a long narrative.. pulled over by police and claimed he was abused. Rule 803(2) – Excited Utterances – A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. Requirements: 1. He died before trial. Consider: § Lapse of time between event and statement § Apparent state of mind of declarant § Nature of the startling event – Life threatening situation? § Declarants age § Whether declarant had a motive to fabricate Boyd v. Jahagirdar – 1st. 2006 (Excited utterance must not be reflective) Facts: π was black double amputee. 2006 (The time for an excited utterance is usually minutes. Holding: Not an excited utterance. Startling Event 2.
Rational: -‐Excited Utterance – The girl remained upset following the flight. plan. The girl was then questioned by police. § 803(3) allows for the declarant’s out-‐of-‐court statements to be used under 4 exceptions: § Does NOT include statements of belief or memory o “I believe he is going to kill me” does not get in o “I loved him when I was younger” does not get in JUSTIN WALES -‐ EVIDENCE 33 . emotional. or physical condition (such as intent. emotion. this does not automatically take it out of the realm of excited utterances. revocation. but ∆ tried to impeach by showing she denied that to doctor. She woke up. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. Time increases the more horrific the event is. and therefore would be motivated for a civil suit. motive. identification. mental feeling. A statement of the declarant’s then existing state of mind. Although interview happened 90 minutes after event. Government offered evidence of the trooper who interviewed her at the scene that she said she was penetrated. sensation. or physical condition. design. although the excited utterance claim is weaker. told the flight attendant. and bodily health). -‐Prior Consistent Statements – It is okay here because there is no indication that the woman knew the guy who raped her was rich. or terms of declarant’s will. STATE OF MIND Rule 803(3) -‐ Then existing mental. and the man was arrested upon landing. pain. Holding: Statements come in as prior consistent statements or excited utterances. He also said she was making up the story cause he was rich. At trial she said he penetrated her vagina.Facts: Woman was fondled while sleeping on a plane.
The statement spoke to a past act and to an act by someone other than the speaker. intent to do something bears on whether she did something. Beliefs/assumptions about conditions in the world and expected behavior of other people. V. Subsequent Conduct • The exception permits use of words to prove intent. o What declarant said on Wed. Doesn’t have to be close to the time of injury. § Courts more often refuse to draw inferences about mental state into the past. just describing how he feels as he talks. § Doesn’t need to be said to a doctor. Cannot be a statement of memory. Then Existing Mental or Emotional Condition § Must be CURRENT mental state. • Difficulties: o Intent is complicated.Then Existing Physical Condition § Statements describing aches and pains. does not get in. so he poisoned me. Shepard handed me a drink and it was poison. JUSTIN WALES -‐ EVIDENCE 34 . named Walters. Not admissible. of his mental state on Mon. Dispute over whether the husband really died. § 403 Balancing test Shepard v. Implies many other things when considered w/ other facts. § Not dying declaration because not IMPENDING death. Insurers say body was of another man. Hillmon – 1892 (A person’s intention to do something can be used as trial) Facts: Wife trying to recovery insurance policies when husband died. Shepard has poisoned me") accusing her husband of poisoning (and killing) her was not a dying declaration and not admissible as state of mind evidence. § Described as a natural reflex of what may be impossible to show otherwise. Insurers trying to admit letters from Walters: 1) letter to sister that he intended to leave Wichita with a Mr. 2) letter to fiancée indicating his intent to leave Wichita with a man named H to start a sheep ranch. H for Colorado." à MEMORY. § People often describe intent in statements that make factual assertions Mutual Life Ins. § If she said "I was poisoned" à Gets in b/c she feels like she’s been poisoned. United States (1933): a statement by a dying wife ("Dr. § Only possible relevance is: "Dr. who was killed by the H.
Larry. Alcalde (Cal.. -‐When a person’s intent is a material fact to be proved. This means that you can’t use a letter by A saying he plans on going to the movies with B to prove that B went to the movies. 1944) (2nd Party Hillmon) Facts: Bernice’s statement: "I’m going out with Frank. that would be hearsay. the probability of a particular act not only by declarant but also by other person.Holding: Evidence Admitted! Whenever a person’s intention is of itself a fistinct and material fact in a chain of circumstances. Holding: When hearsay evidence concerns declarant’s statement of his intention to do something with another person. Traynor’s Dissent (NOW THE LAW): A declaration as to what one person intended to do cannot safely be accepted as evidence of what another probably did. The FRE’s notes explicitly say that a person’s intention can ONLY be used to show THEIR future conduct. it may be proved by contemporaneous oral or written declarations of the party." The purpose is to show she was with Frank the night she died. It’s offered to prove they were together so that "I am going to the parking lot" AND "Angelo is going to the parking lot. that he was going to the parking lot to meet Angelo. evidence that he expressed that intent is as directed as it gets when the person is dead. 1976 (NO LONGER LAW) Facts: Prosecution trying to get in statement from the victim. NO 2nd PARTY HILLMON IN FEDERAL RULES!!!!: Hilmon says that you can use a person’s intention to prove future conduct. evidence of his intent to leave with Hilmon. People v. Holding: The court lets this statement in because there is corroborating evidence. Pheaster – 9th Cir. STATEMENTS FOR MEDICAL TREATMENT JUSTIN WALES -‐ EVIDENCE 35 . Rationale: Letters from Walters to his sister and fiancé were natural." The case was tried right before the FRE were enacted. -‐Letters CANNOT be used as proof that HIlmon actually left. It is not harmless error that this statement came in. Hilmon doctrine requires trier of fact infer from state of mind from state of mind of declarant. Hearsay exception rationale (trustworthiness) cannot apply to prove what another person does. possibly only attainable. § CANNOT USE ONE PERSONS INTENTION AS PROOF OF ANOTHER’S INTENTION US v.
Becier – 8th Cir. § Does not have to be made by the person who seeks treatment. Three statements trying to get in. intake clerks. or sensations. § Reaches both PRESENT and PAST symptoms. Could be made by spouse or whoever takes person to doctor. Call to BF right after incident while victim was still crying. etc. 1.. Statements made for purposes of medical diagnosis or treatment and describing medical history. Rationale: Statements do not need to be made to physician.. 2005 (Covers anyone who is being seen for medical treatment) Facts: Kids see therapist and social worker after experiences sexual abuse. o If a person says “I hit my head while diving into an empy swimming pool” that statement comes in o If it says “I hit my head in an empty swimming pool that didn’t have any warning signs” then the warning signs bit probably wouldn’t get in. Holding: FRE 803(4) covers statements made to a psychotherapist for PURPOSES OF MEDICAL DIAGNOSIS OR TEATMENT. Rule 803(4) Statements for the purposes of medical diagnosis or treatment. US v. There is good reason to believe you will not lie when you are sick and want treatment. or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Kappell – 6th Cir. § Why its reliable: Because life/health may hang in the balance. 2007 (803(4) statements only get in for medical purposes) Facts: Adult rape case. US v. pain. She interviewed the children and got information. or past or present symptoms. nurses. JUSTIN WALES -‐ EVIDENCE 36 . Broader than 803(3) § Only reaches statements that are reasonably pertinent to the treatment of a medical problem. Covers anyone seen for the PRIMARY PURPOSE of treating or diagnosing patient. even though they aren’t doctor or nurse. Diagnosed with PTSD and anxiety. o Does not count if you are going to see a doctor to get an insurance policy § Reaches doctors.
2. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately. Must show that he “made” or “adopted” the statement JUSTIN WALES -‐ EVIDENCE 37 . Statement to DR is INADMISSIBLE! Doctor was basically gathering evidence. and (ii) the victim manifested understanding. Must show the witness lacks present recollection of the matter 2. 3. Requirements: 1. Statements to nurse at ER that she had been assaulted. Rationale: 1. It really matters what the person getting treatment thinks (if they think that it will affect their treatment —think about lying to doctor about whether you smoke or drink). Doctor: Long interview concerning details of the night. Nurse’s statements get in as seeking medical treatment 803(4) 3. If admitted. Doctor’s Intent: is that supposed to be the rule? NO -‐ rule says to look at the intent of the declarant. BF’s statements get in as an excited utterance under 803(2) 2. His notes were not related to treating victim’s assault. Must show that the statement reflects knowledge he once had 3. the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. BUT -‐ have to look at all circumstances of interview to figure out what’s going on in the declarant’s head. Holding: Statements of an assailant’s identity may be admissible only if the gov’t can demonstrate that (i) the physician made clear to the victim that inquiry into the abuser’s identity was essential to diagnosis and treatment. shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. PAST RECOLLECTION RECORDED Rule 803(5) Recorded Recollection.
and told Carol. § DECLARANT MUST TESTIFY. the memoranda can be read outloud to the jury. Freshness is a case-‐ by case analysis. Why its reliable: § The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Note: There would be no Crawford violation because. Michel – 2006 (What is fresh?) Facts: Dispute over a deed. o The opposing side can decide to introduce it if they want. Carol then gives handwritten recollection to police. Scott – 1972 (How much memory loss should allow PRS in?) Facts: Scott killed someone. This can be done through Rule 612 § When requirements are met. BUSINESS RECORDS JUSTIN WALES -‐ EVIDENCE 38 . Holding: Not admissible…too much time had past for this to be fresh. Factors include: Time. TWN v. so its OK. Party wrote affidavit 14 years after conflict. Must show he did so while the matter was “fresh” in his mind and that its accurate Procedure: § You usually would prefer live testimony. even though statements were testimonial she is subject to cross. but not introduced. ACN admits this is in the wrong section. Dissent (Bascuas): Witness did not unambiguously say she had no present memory of the events. so you should try to get witness to remember before you try to bring up this rule. Ohio v. and the impact of the event. ran into theater. Carol says at trial she cant remember details and then the prosecutor submits letter under 803(5) Holding: Admissible! (Although Bascuas says they got it wrong) Rationale: Court said she lacked sufficient memory.4. Rationale: The lawyers really wrote this. whether the memo came before litigation started (incentive to lie). and the prosecution made no effort to refresh her memory.
and calling of every kind. and schools. of acts. The term “business” as used in this paragraph includes business. all as shown by the testimony of the custodian or other qualified witness. Exception: Does not count if the document was prepared for litigation Note: Does not have to be a for-‐profit business. profession.Rule 803(6) Records of Regularly Conducted Activity. made at or near the time by. 1982 (Business records must be made from 1st hand knowledge) Facts: Guy got hernia operation from doctor but pain didn’t go away. REQUIREMENTS: 1. occupation. Went to a second doctor who discovered severed nerve. Rule 902(12). Foundation Testimony – Must be shown by testimony of the “custodian” or other qualified witness or a certification by such person § The person doesn’t have to have made the records or observed its preparation—must have 1st hand knowledge of the system and can describe usual means of preparation 5. Personal Knowledge of Source § Person doesn’t have to be the one who made the record. Not untrustworthy Why is it Reliable? People have an incentive to keep good records because they could get fired if they don’t. association. institution. or a statute permitting certification. hospitals.. unions. conditions. Π wanted to introduce statements from 2nd Doctor’s reports that talked about the severed nerve. A memorandum. opinions. events. report. 3. § Could be a 1 person business § Reaches records of illegal enterprise (drug dealers) 2. or from information transmitted by. or diagnoses. a person with knowledge if kept in the course of a regularly conducted business activity. Must be made within the REGULAR COURSE of business and it must be a REGULAR PRACTICE to make that record § Each person involved in its preparation must have been acting in regular course of business activity. Records must have been made close to the time of the event recorded 4. but they need personal knowledge of the source. record. and if it was the regular practice of that business activity to make the memorandum. Petrocelli v. record or data compilation. or by certification that complies with Rule 902(22). They need to rely on those records. report. Will reach churches. § If it seems untrustworthy through circumstantial evidence then it does not get in. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. whether or not conducted for profit. Gallison – 1st Cir. JUSTIN WALES -‐ EVIDENCE 39 . in any form. or data compilation. § Foundation Requirement – Must be someone with first hand knowledge of the system and how records are kept.
Holding: Admissible. record. unless the sources of information or other circumstances indicate lack of trustworthiness. statements. or data compilations.Holding: NOT ADMISSIBLE. • -‐ Says that failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Employees were acting as agents speaking at the time they were employed (admissible as not hearsay under 801(d)(2)(D)) and memo was made per standard investigatory procedure. 1999 (Hearsay within Hearsay) Facts: Sexual harassment claim on Exxon barge. however. The statements aren’t opinions based on observation. records are not representative of the physician. then used Rule 803(6). Hearsay within hearsay. report. records. or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. Company sent to investigate and took statements from 2 workers. in any form. if the matter was of a kind of which a memorandum. or data compilation was regularly made and preserved. kept in accordance with the provisions of paragraph (6) to prove the nonoccurrence or nonexistence of the matter. reports. or data compilations. but the π’s opinion is irrelevant under Rule 104(a) Norcon v. of public offices or agencies. Kotowski – Alaska. § π could have gotten the statements in under Rule 803(4). in any form. in criminal cases matters observed by JUSTIN WALES -‐ EVIDENCE 40 . setting forth (A) the activities of the office or agency. PUBLIC RECORDS Rule 803(8) -‐ Records. Lady worker wanted to get those statements from report in. There is no mention of symptoms leading to a conclusion that the nerve was cut. excluding. ABSENCE OF BUSINESS RECORDS Rule 803(7) -‐ Evidence that a matter is not included in the memoranda reports. Rationale: It seems like the reports were relaying what π or his wife told the reporting physicians when providing a medical history. No indication that alleged nerve documentation was based on 1st hand medical knowledge of the doctor.
§ Like Business Records. § Mundane Documents § Own activities of the office/agency 803(8)(B) – Matters Observed by public officials. Legislative preamble from a state law indicating a river is navigable. an “anti-‐dumping proceeding notice” by the Commissioner of Customs. ***The rule presumes admissibility w/ ample provision for escape if sufficient negative factors are present. factual findings resulting from an investigation made pursuant to authority granted by law. 803(8)(A) – Activities of the office or agency – Ex: Court transcripts to prove testimony given. Why is it Reliable? Exception rests on presumption that public servants go about their tasks with care. w/o bias or corruption. Reports by building inspectors indicating code violations.police officers and other law enforcement personnel. also unlikely that he will remember details independently of the record. and that the scrutiny and exposure. A “progress sheet” by Treasury describing the processing and mailing of government checks. transparency. Factors in admissibility of evaluative reports: (1) timeliness of the investigations (2) special skill or experience of the official (3) whether a hearing was held and the level at which conducted (4) possible motivation problems. or (C) in civil actions and proceedings and against the Government in criminal cases. Criminal: Comes in freely for civil cases. an order committing a criminal ∆. surrounding gov’t functions add assurance that public records are trustworthy. unless the sources of information or other circumstances indicate lack of trustworthiness. § The agent must have had an official duty to observe and report the event § Agency must have an official duty or purpose to report JUSTIN WALES -‐ EVIDENCE 41 . must be trustworthy. § Requirements: § Report must be based upon information obtained first hand by government. subject to certain restrictions – Ex: IRS assessment liens indicating unpaid taxes. Covers foreign governments. Civil vs. subject to trustworthiness requirement Authentication – Must be authenticated by a custodian or qualified witness. comes in for criminal cases only when ∆ wants to admit it against government. Comes in unless other side can show a reason why its not trustworthy.
Findings by Coast Guard as to which 2 crew members started a fight. § 803(8)(C) CANNOT be used by prosecutor § Includes conclusions. Rainey – 1988 (Finding of fact = fact based opinions) Facts: Navy Plane crashed. Rationale: The rule doesn’t distinguish between finding of fact or opinion. Reports on power tool accidents by Consumer Products Commission. Studies on TSS by the CDC.. Lower court determined the report was trustworthy Bridgeway Corp. V. Citibank – 2nd Cir. Report done by JAG said it was engine malfunction. Wants to use opinions from JAG report under 803(8)(C) Holding: Factual based conclusions and opinions are within the scope of 803(3)(C). v. 2000 (Burden shifting for trustworthiness) Facts: Liberian money vs. Minimum requirements for admission under 803(8)(C): 1) document contains factual findings and JUSTIN WALES -‐ EVIDENCE 42 . not just facts Types of Report Civil π Civil ∆ Criminal Prosecutor Criminal ∆ 803(8)(A) YES YES YES YES Activities of public office Matters observed and YES YES YES YES reported pursuant to legal duty by public employees except law enforcement personnel Findings from official YES YES NO YES investigations Matters observed and YES YES NO NO reported pursuant to legal duty by law enforcement personnel Beech Aircraft Corp. Person’s family then brings civil claim against plane manufacturer.§ 803(8)(B) CANNOT be used by prosecutor to show matters observed by LAW ENFORCEMENT OFFICERS! 803(8)(C) – Factual Findings from official investigations (civil only) – Ex: Findings of employment discrimination based on race/gender by EEOC. US money or something. Holding: State Department Reports are admissible under 803(8)(C). Report by state department trying to get in.
Those facts (the authenticity of death certificate and authority of medical examiner to sign it) were not disputed o Rule 803(8) -‐ Trial judge used 803(8) for redaction on perceived lack of credibility. which refers to matters like whether the evidence is self-‐authenticating or contemporaneously compiled by people of adequate skill/experience. Holding: The certifications are testimonial statements.. including matters such as genuineness of document.” a solemn declaration or affirmation for the purpose of establishing or proving some facts. Pellegrino – 1st Cir. Certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Dep’t of Public Health. The court didn’t base its ruling on the manner in which the cert. was completed. Means that the document was prepared in a trustworthy way by trustworthy people) Facts: Woman died with a piece of meat in her throat (lol). 2003 (Trustworthy does not mean accurate. the sources of info. the credentials of the person completing it. reporting weight of seized bags and that the bags were examined and contained cocaine. utilized. contained and this is impermissible. etc. Rationale: § Factors for reliability: 1. Whether a hearing was held 4. Rationale:Testimonial analysis under Crawford: The documents are really affidavits: “declarations of facts written down and sworn to by the declarant before an officer authorized to administer oaths. doing precisely what a witness does on direct JUSTIN WALES -‐ EVIDENCE 43 . Special Skills/Experience of the official 3. § Once this is shown. Holding: A judge may not rule on the admissibility of evidence based upon his view of the persuasiveness of that evidence. But the rule deals w/ trustworthiness. The certificates are functionally identical to live in-‐court testimony. the maker’s personal knowledge. – 2009 (Chemical analysts give testimony for CC analysis ) Facts: Jury found ∆ guilty for distributing cocaine and trafficking. Trial judge didn’t believe cause of death on death certificate so had it stricken.2) made pursuant to legal authority. Rationale: Trial judge based exclusion partly on 104(a). Mass. or how the record was maintained. Possible motivation problems Blake v. Timeliness 2. burden shifts to adverse party to show “lack of trustworthiness” (see factors below). Melendez-‐Diaz v. Really premised its ruling on the substance of what the death cert. and the analysts were “witnesses” for purposes of the 6th Am. Rule lets judge decide whether foundation is laid for admission. Gov’t submitted three “certifications of analysis” showing results of forensic analysis performed.
examination. § CC doesn’t apply b/c neutral. Breyer. CC’s guarantee is procedural. § CC doesn’t apply b/c not “accusatory. RECORDS OF VITAL STATISTICS JUSTIN WALES -‐ EVIDENCE 44 .” No third category of witnesses -‐ either those against the D or those in his favor in light of CC. § Relax requirements of CC b/c of necessities of trial. Just b/c not accusatory doesn’t make immune from CC. or confessions. Not admissible if the regularly conducted business activity is the production of evidence for use at trial. or. not in business. . That analysts didn’t observe the crime is not a limitation (other witnesses under this description are also subject to confrontation). depositions. . scientific testing is reliable. See Palmer where accident reports deemed calculated for use in court. § No violation b/c D could have subpoenaed the analysts. had a prior opportunity to cross-‐examine o Rejects all gov’ts arguments . Alito): Would limit Crawford and Davis to “ordinary witnesses”—witnesses who had seen the crime in question. prior testimony. if not. If the person died then evidence can’t get in. such as affidavits. § CC doesn’t apply b/c witness not “conventional. Analysts subject to confrontation if always consistent and honest w/ perfect methodology. by police request or interrogation is not a limitation b/c doesn’t make a difference if testimonial witness against D. • Concurrence (Thomas): Thinks CC only applies to extrajudicial statements contained in formalized testimonial materials. where events reported were not admitted w/o confrontation.” Doesn’t matter whether contemporaneous. Constitution is binding. See Davis. • Dissent (Kennedy. Ds will often stipulate to the nature of the substance for a variety of strategic reasons. Business records exception usually admissible b/c not testimonial. Cases are limited to the proposition that “formal statements made by a conventional witness—one who has personal knowledge of some aspect of the D’s guilt—may not be admitted w/o the witness appearing at trial to meet the accused face to face. t/f must be entitled to confront analysts at trial. Roberts. Voluntary vs. not on the D to get adverse witnesses into court. Wrapping Up Melendez-‐Diaz – If you have something (like a drug test) prepared for litigation then you need the person preparing the analysis to testify at trial. § Admissible b/c business/official records (803(6) & (8)). cannot disregard at convenience. not substantive. Constitutional right that burden on prosecution to present witnesses.
was regularly made and preserved by a public office or agency. deaths. contained in a regularly kept record of a religious organization.. or entry. or data compilation. divorces. E. relationship by blood or marriage. or marriages.g. statement. report. report. JUSTIN WALES -‐ EVIDENCE 45 . of births. if the report thereof was made to a public office pursuant to requirements of law. that diligent search failed to disclose the record. Rule 803(9) Records of vital statistics. statement. or testimony. or data compilation. in any form. ABSENCE OF PUBLIC RECORDS Rule 803(10) Absence of public record or entry. in any form. statement. marriages. in any form. • Includes situations in which absence of a record may itself be the ultimate inquiry. fetal deaths. RECORDS OF RELIGIOUS ORGANIZATIONS Rule 803(11) Records of religious organizations. or data compilation. or other similar facts of personal or family history. or the nonoccurrence or nonexistence of a matter of which a record. deaths. Statements of births. whether necessary papers were filed w/ the Secretary of State. legitimacy. ancestry. To prove the absence of a record. evidence in the form of a certification in accordance with rule 902. Records or data compilations. report.
Unlikely that false info. can use to show you were in a city that day.g. or tombstones. • Like public documents but more broad. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament. would be furnished on occasions of this kind. PROPERTY RECORDS JUSTIN WALES -‐ EVIDENCE 46 . Gets in a lot (e. just like business records exception. Like public records. wall where you keep kid’s height marked).• • • The person furnishing the info. • • Usually as proof of age in the absence of public or church records. made by a clergyman. engravings on urns. Statements of fact concerning personal or family history contained in family Bibles. etc. baptismal. and similar certificates. charts. FAMILY RECORDS Rule 803(13) Family Records. must be one in the business or activity. or the like. inscriptions on family portraits. confirmations. or other person authorized by the rules or practices of a religious organization or by law to perform the act certified. CEREMONIAL CERTIFICATES Rule 803(12) Marriage. crypts. genealogies. and purporting to have been issued at the time of the act or w/i a rsbl time thereafter. engravings on rings. extending to religious people and baptisms. public official.. no requirement that the informant be in the course of the activity.
ANCIENT DOCUMENTS JUSTIN WALES -‐ EVIDENCE 47 . The record of a document purporting to establish or affect an interest in property. • • • Merely recitals of fact that are germane to the purpose of the document. if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document.Rule 803(14) Statements of documents affecting an interest in property. Problem when offered for purpose of proving execution and delivery: Local laws would qualify for recording only docs shown by a specified procedure (acknowledgement/form of probate) to have been executed and delivered. Trustworthy in view of nonapplicability of the rule if dealings w/ the property have been inconsistent w/ the document. Must be received and delivered/executed properly. unless dealings w/ the property since the document was made have been inconsistent w/ the truth of the statement or the purport of the document. Age of document doesn’t matter. • • Statutory development to record title would be reduced to a nullity if couldn’t be received in evidence. as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed. STATEMENTS OF INTEREST IN PROPERTY Rule 803(15) Statements in documents affecting an interest in property.
Usually the best evidence. The question is whether the public relies upon the website to ensure accuracy. Statements in a document in existence twenty years or more the authenticity of which is established. contracts. practically speaking. certificates. MARKET REPORTS Rule 803(17) Market reports. records. lists. • • • • Lists prepared for use of a trade or profession & other kinds of publications (newspaper market reports. There must be a tremendous incentive to get it right. Foundation is usually stipulated but may need custodian from company to testify that their company is relied upon. Trustworthy by general reliance by the public and the motivation of the compiler to foster reliance through accuracy. Question re: Internet -‐ companies w/ websites. or other published compilations. Can get info. opponent will have ammunition to dispute. title documents. unlikely to be pivotal in litigation. Market quotations. Danger of mistake minimized by authentication requirements. If not true. generally used and relied upon by the public or by persons is particular occupations. • • • • Applies to letters. LEARNED TREATIES JUSTIN WALES -‐ EVIDENCE 48 . telephone and city directories). Special authentication provision (901(b)(8)) authorizing courts to accept such documents as genuine on the basis of how they look and where they came from (relaxed foundation requirements). etc.Rule 803(16) Statements in ancient documents. better evidence hard to come by. age affords assurance that the writing predates the present controversy. tabulations. maps. from a lot of different places. directories. Must be relied on by the public (or persons of a particular occupation) like a phone book. Must establish authenticity. commercial publications.
legitimacy. crashworthiness reports prepared by private lab for Dep’t of Transportation). divorce. death. marriage. inferior to live testimony b/c live experts can shed more light on technical problems than authors. Avoids this danger as only being admissible when an expert is on the stand & cannot be received as exhibit. adoption. • Trustworthy b/c written primarily and impartially for professionals. statements contained in published treatises. or marriage. Blackburn v. To the extent called to the attention of an expert witness upon cross-‐ examination or relied upon by the expert witness on direct examination. 1999 (Need to be familiar with community) JUSTIN WALES -‐ EVIDENCE 49 . technical knowledge evolves so quickly that treatises often become obsolete. REPUTATION CONCERNING FAMILY HISTORY Rule 803(19) Reputation concerning personal or family history. or in the community. Reputation among members of a person’s family by blood. • Besides technical books. medicine. periodicals. relationship by blood. w/ the reputation of the writer at stake. or marriage. or pamphlets on a subject of history. what does the exception embrace? Safety codes. Pinkus (1949). subject to scrutiny and exposure for inaccuracy. • Status of authority should be established (by any means). adoption. If admitted. Reilly v. adoption. too easily wrenched out of context leading to unfair tactics. or other science or art. • Not admissible as substantive evide nce but usable in the cross-‐examination of experts. or among a person’s associates. the statements may be read into evidence but may not be received as exhibits. established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. or other similar fact of personal or family history. concerning a person’s birth. ancestry. • BUT problem that it will be misunderstood or misapplied w/o expert assistance/supervision. UPS – 3rd Cir.Rule 803(18) Learned treatises.
He claims it was because he blew the whistle on some serious shit. still no evidence UPS knew of the relationship or that the company knew and did nothing about it. and that the basis of the reputation is on that is likely to be reliable. but it doesn’t appear to come w/i the prohibitions of the anti-‐nepotism policy. as to boundaries of or customs affecting lands in the community. • Michelson: Witness must qualify to give an opinion by showing such acquaintance w/ the D. o Rule 801(d)(2)(D) -‐ Admissions by Party-‐Opponent’s Agent (stmts by employees): Statements must concern a matter w/i the scope of the agency or employment. Must be a member of that community. REPUTATION CONCERNING CHARACTER JUSTIN WALES -‐ EVIDENCE 50 . Holding: A witness who wishes to testify about someone’s reputation w/i a community must demonstrate that he or she knows of the person and is truly familiar w/ the “community” in which the reputation has been formed. Can’t be too big. Reputation in a community. Proponent of evidence must establish that the reputation testimony arises from sufficient inquiry. Rationale: o Rule 801(d)(2)(A) -‐ Admissions by a Party-‐Opponent (HR supervisor): Admissions by a party-‐opponent need not be based on knowledge to be admitted. Court picks the branch the guy worked at. o Application: P does not appear to be familiar w/ persons named. § Trustworthiness. interactions. for the info. Π says UPS doesn’t enforce nepotism policy. o Rule 803(19) -‐ Reputation Concerning Personal or Family History: § What is the relevant community? “Associates in the community” encompasses one’s reputation at work. let alone a reliable one. and reputation as to events of general history important to the community or State or nation in which located. arising before the controversy. Needs interaction. to speak w/ authority. fails to identify the community involved. Also only admissible if the declarant is unavailable as a witness. that he is offering. and doesn’t establish any basis. REPUTATION CONCERNING BOUNDARIES Rule 803(20) Reputation concerning boundaries or general history. discussion.Facts: UPS said it fired π because he was related to another employee. Even assuming stmt from Zileski was a proffer testimony. Rumors/speculation insufficient for a trustworthy consensus. the community where he has lived and social circles. or familiarity among persons w/ personal knowledge of the/ matter. BUT only one statement P is trying to use is arguably relevant to the pretext issue. Would still need more details re: the alleged relationships and UPS’s failure to act on them to see if they are even relevant.
essential to the judgment. judgments against persons other than the accused. to prove any fact essential to sustain the judgment. In criminal cases. The court found that Jap law recognized self-‐defense. or general history. adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year. while permitting the accused to be held criminally liable for excessive force. The pendency of an appeal may be shown but does not affect admissibility. family or general history. but not including. entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere). § § § Character of a person is admitted to prove his out of court behavior Allows proof of reputation within community Aggregates what people in community say as proof JUDGMENT ON PREVIOUS CONVICTION Rule 803(22) Judgment of previous conviction. or boundaries. family. • • • • • Felony convictions may be used to prove facts essential to sustain the judgment. family. JUSTIN WALES -‐ EVIDENCE 51 . Judgments as proof of matters of personal. a crime punishable in Japan by imprisonment of more than a year. Reputation of a person’s character among associates or in the community. where the finding is essential to the judgment. Lloyd case -‐ the judge erred in excluding a Jap judgment convicting A of injuring L. Exception bars use of felony conviction based on nolo please JUDGMENT REGARDING FAMILY HISTORY OR LAND BOUNDARIES Rule 803(23) Judgment as to personal. the prosecutor cannot introduce prior convictions of third persons “for purposes other than impeachment. if the same would be provable by evidence of reputation. or boundaries. § Reputation evidence is one for judgment as proof of matters of personal.” FRE 609(a)(2) allows use of both felony and misemeanor convictions to impeach government and defense witnesses. Evidence of a final judgment.Rule 803(21) Reputation as to character. when offered by the Gov’t in a criminal prosecution for purposes other than impeachment. or boundaries. or general history.
Uniform Act provides a means where one state can obtain an order from a court in the state where the witness is found directing the witness to appear in court in the first state to testify (must pay a travel allowance and compensation). Rationale: π didn’t even try to get the testimony. Holding: Gov’ minimal efforts to contact witness was not reasonable or in good faith. Holding: The government must take all reasonable available means to get witnesses to testify For prisoners. 2009 Facts: G’s videotaped depo was taken by gov and ∆’s counsel. Page – 1968 (Must make reasonable efforts to obtain witness) Facts: B and W tried for armed robbery in state court. o Judge determines if testimony is unavailable IF… § FRE 804(a)(1): Exempted from testifying by court on grounds of privilege.] o B objected to gov’t use of a transcript of the testimony by W at the preliminary hearing and was convicted. When B was tried seven months later.HEARSAY EXCEPTIONS. At preliminary hearing. W was in fed’l prison in another state. but number didn’t work. and P didn’t cross. DECLARANT UNAVAILABLE AS WITNESS § Doesn’t require declarant be physically unobtainable. Gov’t made no effort to get W at trial (other than figure out he was in fed’l prison). although a lawyer for another D did. infirmity § FRE 804(a)(5) Unavoidable absence Barber v. P represented both Ds. it is the policy of the United States government to permit federal prisoners to testify in state court criminal proceedings with a writ of habeas corpus ad testificandum issued out of state courts. G went to mexico. W waived his privilege against self-‐incrimination. Each of the fifty states will do versions so they can cooperate and do business with each other. including 5th Amendment privilege. There. Tirado-‐Tirado – 5th Cir. Why we have a Uniform Act written by the ALI. [A state cannot order the fed’l gov’t to produce a witness. The right of the confrontation is not dispensed unless π made a good faith effort to obtain his presence at trial. Gov attempted to contact G by mail and telephoned him 8 days before trial.. § FRE 804(a)(2): Refusal to testify § FRE 804(a)(3): Lack of memory § FRE 804(a)(4) Death. no avail. and P w/drew as his atty but continued representing B. US v. just that the testimony be unobtainable. JUSTIN WALES -‐ EVIDENCE 52 . In his testimony at the preliminary hearing. illness. Gov contacted G’s brother. W incriminated B. o For non-‐prisoners. G gave contact infor and was informed he would be asked to be a witness.
preliminary hearings. Holding: π made reasonable efforts to secure ∆’s attendance. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. o Former Testimony Exception: Unless the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable. o Depositions. or. The government deposed him under FRCP 15(a) in a foreign country. JUSTIN WALES -‐ EVIDENCE 53 . o Predecessor in interest -‐ in vertical privity with the defendant in the current proceedings. if the party against whom the testimony is now offered. o Must have had a chance to cross examine.FORMER TESTIMONY EXCEPTION Rule 804(b) Hearsay exceptions. Witness wouldn’t come to US and testify and the governments of various countries either refused or lacked power to get witness over here. a deposition taken in accordance w/ the law of the host nation is taken in compliance with law for purposes of 804(b)(1). Grand jury testimony DOESN’T count. McKeeve – 1st Cir. o Difference between this exception and the one for prior inconsistent statements -‐ both require a chance for cross.. the exception for prior inconsistent statements in Rule 801(d)(1)(A) requires a present chance to cross-‐examine. or in a deposition taken in compliance w/ law in the course of the same or another proceeding. prior trials. Testimony given as a witness at another hearing of the same or a different proceeding. had an opportunity and similar motive to develop the testimony by direct. No one wants you out of jail as bad as you do! US v. 1997 (Unavailability) Facts: Foreign import criminal trial thing. cross. or redirect examination. a predecessor in interest. The deposition was properly within former hearsay exception. but the former testimony exception in Rule 804(b)(1) requires a prior chance to cross-‐examine the declarant. administrative proceedings count. Doesn’t apply in the criminal context. in a civil action or proceeding.
Two Shields – 2007 (Expectation of death can be inferred) Facts: Two Shields was really drunk in his Indian reservation trailer park. Duh. They just must think they are about to. o Declarant doesn’t actually have to die. the dyinc declaration exception does NOT apply because BB’s medical condition doesn’t support the inference that death was imminent.g.” Not enough to just be afraid of dying. BB never indicated he would thought he wouldn’t survive. All hope must be lost! Must speak “with the consciousness of a swift and certain doom. Don’t want to piss off god before you die. Rationale: o NO Statement Against Interest under 804(b)(3): Medical evidence showed that the victim was highly intoxicated and unable to recall simple facts like his age. doctor’s advice that there is no chance of survival. such that he couldn’t have been able to appreciate that the statement was against his interest. JUSTIN WALES -‐ EVIDENCE 54 . The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. his uncle Buffalo Boy. In a prosecution for homicide or in a civil action or proceeding. Everyone expected him to survive. SCOPE: ONLY for homicide cases and civil cases. concerning the cause or circumstances of what the declarant believed to be impending death. but the nature and extent of the injuries must be SO severe that obviously the declarnt must know he could not survive. a statement made by a declarant while believing that the declarant’s death was imminent. and asked if it was 2S and he said no. BB’s sister-‐in-‐law said she asked BB if he knew who hurt him and he nodded yes.DYING DECLARATIONS (et tu brute?) Rule 804(b) Hearsay exceptions. circumstances of how victim is found (e. Shepard has poisoned me case? o Cardozo says declarant must be shown to have spoken without hope of recovery and in the shadow of impending death. injuries were to face. Altercation broke out. Whether declarant had a settled expectancy of imminent death: nature of wounds. and fact of death within hours). • How imminent must the prospect of death be?: Remember Dr. seriousness of wounds. God hates lies. labored breathing.. Here. Why is it Reliable? People love god. and drunk-‐ass BB had a broken jaw and later died. US v. Holding: Declarant’s serious injuries can support an inference that he believed death was imminent.
Rule only covers pecuniary. 1. Corroborating circumstances § Use by Prosecutor in Criminal Cases – When a prosecutor seeks to use a declarant’s self-‐incriminating statements against the defendant in a criminal trial. Declarant must believe the statement 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 stmt. 2. 2. 2. Declarant must have first hand knowledge or believe what he said was true. Only needs to TEND to be against declarant’s interest. and penal interests. 4. propriety. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest. Declarant either had first hand knowledge. 3. § Use by Defendant in Criminal Cases – When a defendant seeks to use a declarant’s statement against penal interest as evidence of his OWN innocence 1. Declarant must have first hand knowledge or believe what he said was true. Declarant must be unavailable. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. (Must corroborate under proposed change) § § JUSTIN WALES -‐ EVIDENCE 55 . Use in Civil Litigation: 1. or to render invalid a claim by the declarant against another. Tends to be against Penal interest 4. Declarant must be unavailable 3. or at least believed what he said was true. Tends to be against Penal interest 4. or so far tended to subject the declarant to civil or criminal liability. Declarant must be unavailable 3.STATEMENT AGAINST INTEREST Rule 804(b) Hearsay exceptions. its not a statement against interest. litigational. § If it doesn’t cost you money or freedom.
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest. if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. the bulk of B’s statements were self-‐inculpatory. when made. 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. Declarant Unavailable (b) Hearsay exceptions. Holding: Evidence admissible. and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness. A declarant’s statements to a CI. B.Proposed Changes to Rule 804(b)(3): Pending for December 2010. US v. is a proposed amendment to FRE 804(b)(3) which would apply the corroborating circumstances requirement to all declarations against penal interest offered in criminal cases. schemed to buy illegal guns or something. DOES NOT CONSTITUTE TESTIMONY UNDER CRAWFORD. Therefore.. Saget – 2d Cir. o FRE 804(b)(3) allows statements against penal interest ONLY if the lower court finds that a reasonable person in the declarnt’s shoes would perceive the statement as detrimental to his own penal interest. The amendment extends the requirement to the admission of a declaration against interest statement introduced by the government. **Will be on the exam** Current Rule Proposed Rule Rule 804. Hearsay Exceptions. Rule 804. Hearsay Exceptions. B spoke with confidential informant and gave up a bunch of information. whose status is unknown to declarant. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. or so far tended to subject the declarant to civil or criminal liability. Rationale: Testimonial depends on whether declarant was aware or expected statements to be sued. Conversation was recorded and B was unavailable at Saget’s trial. JUSTIN WALES -‐ EVIDENCE 56 . the statements saying dude committed crimes alone were also because in context of his knowledge he exposed himself. Declarant Unavailable (b) Hearsay exceptions. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because. -‐ The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ***** (3) Statement against interest. This requirement presently applies to statement introduced under the rule by the defendant. 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 stmt. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ***** (3) Statement against interest. Here. or to render invalid a claim by the declarant against another. Gov wants to introduce the tapes under FRE 804(b)(3) as against dude’s penal interests. 2004 (Statements to CI not testimonial) Facts: Saget and his co-‐conspirator.
even though declarant had no means of acquiring personal knowledge of the matter stated. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (4) Statement of personal or family history.. Garcia – 7th Cir. Holding: Other driver’s statements should have gotten in as statements against his penal interest. Rationale: Three Part Test: 1. ancestry. STATEMENTS OF PERSONAL OR FAMILY HISTORY Rule 804(b) Hearsay exceptions. or other similar fact of personal or family history. Torres’ statements exculpating Garcia must be against Torres’ penal interest (Yes he said it was all his) 3. Torres must be unavailable to testify (Yes. the confession was voluntary and made after his Miranda warnings. of another person. JUSTIN WALES -‐ EVIDENCE 57 . or marriage or was so intimately associated w/ the other’s family as to be likely to have accurate info. There is no evidence here that Torres was fabricating shit. legitimacy. There must be corroborating circumstances which clearly show the trustworthiness of Torres’ statements (Yes. and death also. Torres repeated statements a bunch of times) § Doesn’t require statements themselves to be corroborated. adoption. concerning the matter declared. Just that under the circumstances it seems trustworthy. adoption. 1993 (Factors for corroborating—circumstantial) Facts: Two truck drivers pulled over. the two men hardly knew eachother. Garcia nevertheless convicted. marriage. he plead the 5th) 2. the other truck driver says its all his and Garcia had nothing to do with it. if the declarant was related to the other by blood. (A) A statement concerning the declarant’s own birth. no evidence that statements were made to curry favor with authorities. relationship by blood. divorce. found shit-‐ton of weed.US v. or (B) a statement concerning the foregoing matters. Torres. adoption. or marriage.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (6) Forfeiture by wrongdoing. turn to forfeiture exception. Moreno – Co.. Holding: The government must show calculated intent by the defendant to subvert the criminal justice process in order to show forfeiture by wrongdoing. STATEMENTS OF DECLARANTS UNAVAILBE DUE TO MISCONDUCT Rule 804(b) Hearsay exceptions. Under a state statute. it is violative of the CC. § § Not limited to criminal trials. e. The statute is therefore invalid.. the nature of the criminal acts against her. and would run against the “clear consensus” in non-‐murder cases that there must be a showing of an intent to prevent the declarant from testifying at trial o No clear evidence of wrongdoing by defendant to cause the victim’s absence. although mostly used by prosecutors. the manner in which he chose his victim. See Crawford. would violate Crawford. 2007 (Must intend for victim to not testify inorder for statements to come in) Facts: Sexual abuse child victim unable to testify because the chi ld would be so retraumatized that they are officially medically unavailable. People v. Rationale: To the extent that the statute allows for the admission of out-‐of-‐court testimonial statements without the defendant being afforded an opportunity to cross-‐examine. The statute says a child’s statement describing any act of sexual contact performed in the presence of the speaker is admissible in any trial for child abuse if the child testifies or is unavailable and there is corroborative evidence of the act described in the statement. and did. NOTE: The Giles case says that there is no confrontation clause problem when ∆ intended for witness not to testify. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to. CC only deals with testimonial statements. the absent child-‐victim’s video-‐taped interview is admitted into evidence. Giles mandated that the ∆ must intend to make witness unavailable. This case and the rule says you also can’t use a hearsay objection. subsequent threats made to her. procure the unavailability of the declarant as a witness. then. Must. Remember. JUSTIN WALES -‐ EVIDENCE 58 .g. o To hold there is a class of prosecutions (child sex abuse) where no CC right.
Does not excuse laziness. if the court determines that (A) the statement is offered as evidence of material fact. then let the person speak.SHOTGUN RULE – CATCH-‐ALL HEARSAY EXCEPTION Rule 807 -‐ Residual Exception -‐ A statement not specifically covered by Rule 803 or 804 (hearsay exceptions) but having equivalent circumstantial guarantees of trustworthiness. b. 3. behavioral changes. However. character of the child. particular indications of pain or emotional upset. including the name and address of the declarant. number and consistency of repetitions of the basic story. Requirements: 1. If a person is available to speak instead of admitting hearsay. general demeanor and affect incl. presence or absence of bias. o The catchall and child abuse prosecutions -‐ list of factors bearing on the determination of trustworthiness applying the catchall to statements by abused children: precocious knowledge and age-‐appropriate language. but statement against interest doesn’t apply because person is available to testify. Interest of justice 4. signs of tension or disagreement b/t the child and person accused of abuse. a. Rifle-‐shot child abuse exceptions generally must apply these trustworthiness criteria. a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. training and techniques of people talking to the child. spontaneity. More probative on the point than any other available evidence. JUSTIN WALES -‐ EVIDENCE 59 . the proponent’s intention to offer the statement and the particulars of it. and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Courts prefer live testimony. Material Fact 2. Have to make reasonable effort to get other evidence. is not excluded by the hearsay rule. (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. Notification to the adversary Notes: o Courts sometimes apply catchall to cases where a person confesses to a crime to exculpate ∆.
Should be 804(b)(6) forfeiture by wrongdoing. must be shown to have been made or adopted by the witness and to reflect that knowledge correctly had more to do w/ accurate reflection of declarant’s memory. Border patrol interviewed other aliens and 2 said he was leader and rest said he wasn’t. The statements were consistent with medical evidence. o Notes analogous to recorded recollections. Weaver wanted to introduce evidence of 3 women from a diner who heard the baby’s mother say that Weaver didn’t hurt the baby. 3 who said he was innocent). no reason for witnesses to lie. Dissent! (Important): Hearsay problem! The government removed the witnesses from the court’s jurisdiction so they couldn’t testify. It didn’t fall into any of the hearsay exceptions. only difference are that witnesses didn’t lose memories. they weren’t friends with her they were just customers. Witnesses had no reason to lie. but that doesn’t affect reliability. 2003 (DISSENT is important) Facts: ∆ was arrested with 14 others who cross border illegally. § JUSTIN WALES -‐ EVIDENCE 60 . Holding: Evidence admissible. Actual guide was the one w/ motive to lie which may explain why only one guy pointed the finger. Rationale: Factors to consider in making a trustworthiness determination: o Declarant’s propensity to tell the truth o Whether the declarant’s statements were made under oath o Assurance of the declarant’s person knowledge o Time lapse between event and statement by declarant o Motivation of the declarant to make the alleged statements o Corroboration o Reaffirming the statement by declarant o Credibility of the witness reporting the statement o Availability of the declarant for cross. ∆ was transferred to a hospital for frostbite and was interviewed there by border patrol.. Weaver – Iowa 1996 (Factors of trustworthiness under catchall rule) Facts: Weaver was a babysitter and accused of 1st degree murder. We still have good reason to believe the stmts are accurate b/c conducted by individuals trained to be accurate. All but 5 witnesses were sent back (2 who said he was guilty. Ramirez-‐Lopez – 9th Cir. they are unavailable. Secondly. After being taken into custody. undermined the government’s case. ∆ denied being leader of the group. but rather that the baby hit her head on the coffee table.Still must consider whether statements offered are testimonial under Crawford. US v. All three testimonies are more or less the same. Holding (Not Important): ∆ failed to show that evidence wasn’t cumulative. State v.
o Either mounted on cross or using extrinsic evidence w/o restriction on timing. (c) Leading questions. or a witness identified with an adverse party. permit inquiry into additional matters as if on direct examination. an adverse party. (b) Scope of cross-‐examination. (2) avoid needless consumption of time. interrogation may be by leading questions. and (3) protect witnesses from harassment or undue embarrassment. motivation. or corruption that might lead him to fabricate/shade testimony to help or hurt a party 2) showing defect in sensory/mental capacity (perception or memory) undercutting testimony (old lady in My Cousin Vinny) 3) showing he is by disposition untruthful • cross-‐examining target witness about nonconviction misconduct casting doubt on honesty (608(b)) • cross-‐examining re certain kinds of convictions (609) • testimony by character witness that the target witness is untruthful (608(a)) o Specific but Indefinite: Target particular misstatements or lies. Five Ways to Impeach a Witness o Definite & Nonspecific: Bringing out reasons to doubt his word in general (w/o pinpointing a particular error or lie in his testimony) 1) showing bias. The court may. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth. JUSTIN WALES -‐ EVIDENCE 61 . IMPEACHMENT Rule 611 – Mode and Order of Interrogation and Presentation (a) Control by court. o Also. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. 6th Amendment issue that D be able to present evidence on his behalf. When a party calls a hostile witness. in the exercise of discretion. Ordinarily leading questions should be permitted on cross-‐examination. Cross-‐examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. animus. but w/o suggesting reasons 4) showing prior inconsistent statement – FRE 613 requires that witness be allowed to explain prior statements 5) contradicting the witness – Show he is just plain wrong on 1 + point in his testimony.
Proof of membership makes existence of bias more probable. § Common source of bias involve family ties. § Government can only call witness testifying about bias if Mills denies being part of organization and claims he is not lying (impeachment). BIAS AND MOTIVATION IMPEACHMENT § The range of points an attacking party can raise in attempt to impeach for bias is large. Also if they are paid or received a reduced sentence for their testimony. the extent of permissible cross for bias is at the discretion of the judge. § Trial judge must permit ∆ to uncover basic identifying facts about π’s witness § Court may impose reasonable limits on efforts to show bias and cut off questioning when the point has been made. without affirmatively subscribing to tenants. o Court does not answer whether just being a member of such a gang. JUSTIN WALES -‐ EVIDENCE 62 .• Repairing credibility: subject to judge’s discretion. § Relevant under FRE 402 analysis. US v. § ∆ has a constitutional right to develop bias. would be enough under 608(b). financial ties. Rationale: Membership of Mills in the prison gang was sufficiently probative of Mills’ possible bias towards Abel to warrant its admission. Few rules. Wanted to call witness to show he and D were members of secretive prison gang. his credibility cannot be impeached. The trial court took sufficient steps to limit its prejudicial value under 403 (didn’t let them use name of gang). Holding: It is permissible to impeach a witness by showing his bias through common membership of D and witness in group pledged to lie. 608(b) allows cross-‐examiner to impeach a witness by asking him about specific instances of past conduct. the supporting (calling) party may examine the witness in an effort to refute points or explain away any aspersions. admissible subject to Rule 403) Facts: Witness testified that his own impeachment witness and the D were involved in Aryan Brotherhood. and membership to organizations. Abel – 1984 (Impeachment of witness for bias is proper even though NO RULE à Impeachment for bias evidence relevant. If Mills admits he is in gang. § OK to admit cross of Mills about gang to show that membership in the gang as past conduct has bearing on his veracity.
They claimed the LC erred by allowing the government’s cross that discredited ∆s by associating them with organized crime. US v. Osborne claimed that cops hit him because they had animosity towards him because his family had previously filed a Civil Rights suit against the police. Its error for π to draw a connection to a group engaged in criminal activity which serves no purpose. which sold drugs. HERE. ∆ denied being tied to Mitchell and the mob. known as the mob. Dickens – 9th Cir. π wants to introduce evidence by a former police officer that cops wont turn on other cops. Rationale: No direct evidence was offered which connected ∆s with the mob and such evidence doesn’t have any probative value in proving the crime charged. Holding: ADMISSIBLE! Evidence of a secrecy policy must come in especially since a jury would assume that cops wouldn’t lie and that P would. Rights of the criminally accused are not implicatedàDickens’ rationale that ∆’s guilt may not be proved by associating him with unsavory characters carries LESS WEIGHT IN A CIVIL SUIT. it was ∆. Government cross ∆ about his relationship with a guy named Mitchell. who was testifying and ∆’s association with mob does not show any motive for lying. and Mitchell’s business. not a witness. Osborne v. ∆’s relationship to a prison gang required its members to do ANYTHING to protect the others showed a powerful motive to slant testimony. City of Long Beach – 9th Cir. JUSTIN WALES -‐ EVIDENCE 63 . there is no requirement to show that the witness has subscribed to the tenants of an organization. does not bear on ∆’s truthfulness. 1988 (Can use evidence of code of silence to show bias against police) Facts: Osborne was arrested for being under the influence of PCP.. 1985 (Can’t discredit through MERE ASSOCIATION) Facts: ∆ and another were arrested with a bunch of drugs. o Evidence of association with others. ∆’s were convicted. § DIFFERENT FROM ABEL – In Abel. At trial. Relevant to show bias. ∆’s association with a group engaged in criminal activity is not a crime. Why similar to Abel: Similar to Abel because the cops had a code preventing them from testifying. Holding: ∆’s guilt may not be proved by associating him with unsavory characters. The cops claimed that while in their custody Osborne faked a fainting spell and fell and hit his nose and started to bleed.. Why different from Dickens: Evidence in this case DOES show a motive for bias in this trial. The court doesn’t let it in. § FRE 608(b) controls the extent of cross à allows examination into specific instances of a witness’ conduct if probative of the witness’ truthfulness. § For impeachment. even though others may have engaged in criminal activity. Osborne claimed cops hit him. and is not admissible for credibility impeachment under FRE 609. Mere membership is enough.
Rationale: Exclusion of evidence violated ∆’s constitutional right to defend himself because it would show the officer lied about the assault to cover up that the other cop arrested and inured ∆ for no reason. Tries to show witness only had brief chance to see/hear what she describes. Their general capacity to understand or see an event. 2006 (Exclusion of evidence affected ability to put on a complete defense) Facts: ∆ was arrested for assaulting his wife on a sidewalk.§ A witness’ status as a party is a factor for determining the probative value of bias evidence. When ∆ began to explain how he was hurt at trial. Attacking party can show that the witness was under the influence or mentally ill Extrinsic evidence is okay Impeachment is general. the LC judge cut him off because she didn’t see how the testimony was relevant because the case was about assaulting the wife.C. the defendant cannot be denied the chance to testify about his injuries. SENSORY AND MENTAL CAPACITY § § § § Shows defects in memory or perception to undercut testimony. McDonald v. § Unlike Dickens. etc. but they claimed it was just verbal and a cop rode up on a bike and beat them up. the code of silence doesn’t carry prejudicial complications associated with criminal gangs.. Holding: Evidence should be allowed so ∆ could present a complete defense. An officer across the street testified that ∆ was violent with his wife and that the officer on the bike put ∆ on the ground to arrest him. not police brutality. or that she had bad eyes and wasn’t wearing glasses. JUSTIN WALES -‐ EVIDENCE 64 . US – D. Where a criminal defendant is saying that he was injured during his arrest to support his theory that the police fabricated the charge against him.
Rule 608(b) – Evidence of Character and Conduct of Witness. if probative of truthfulness or untruthfulness. but proof other than this testimony is prohibits. FROM E&E: Past Bad Acts that Did Not Lead to Criminal Convictions – A witness may be questioned about past acts that did not lead to a conviction if they are relevant to the witness’ character for truthfulness. Specific instances of the conduct of a witness. Specific instances of conduct. or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-‐examined has testified. § You can only ask these questions if you have a basis to believe they’re true (all w/i judge’s discretion). Must focus on traits relating to veracity. § No pre-‐trial notice requirement. but 404 still bars evidence that he is by disposition violent. They may. in the discretion of the court. CHARACTER FOR TRUTH AND VERACITY § In general. be inquired into on cross-‐examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness. may not be proved by extrinsic evidence. § Can also ask questions on cross to character witnesses about their knowledge of specific instances of conduct concerning the truthfulness of the person they’re testifying about. other than conviction of crime as provided in rule 609. but showing a person’s untruthfulness is allowed by rule 404(a)(3) and is covered by 608 and 609. for the purpose of attacking or supporting the witness’ character for truthfulness. § Ex: If ∆ in a murder trial testifies. § May ask questions on cross about specific instances of conduct of a witness to prove truthfulness or untrutfulness. but can’t introduce extrinsic evidence. rule 404 bars character evidence to prove conduct outside of court. FRE 608 and 609 allows π to show ∆ is dishonest. however. JUSTIN WALES -‐ EVIDENCE 65 .
§ Middle – Behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity. Note: FRE 609 is more common because info is public. 1. 1999 (Three views of 608(b). Questioner must have good faith belief that the event actually occurred. (Embezzlement yes. It shows that he doesn’t care about perjury and that if he’d make other people do it..§ Three Controls on the use of information about a witness’ past acts that did not lead to a criminal conviction. 2. § Bias can be shown through extrinsic evidence. conduct displaying untruthfulness cannot. o Rejected. not during direct examination. The questions must be asked during cross examination. but if they deny it then the questioner must move on. § Threatening the witness is the same as committing perjury. May not introduce other proof about the alleged past act by testimony from other witnesses or by any other method. Holding: Asking a witness about his previous conduct concerning forcing witnesses to commit perjury is allowed for impeachment purposes. Too broad. PROVING PRIOR CONVICTIONS Rule 609 Impeachment by evidence of Conviction of Crime JUSTIN WALES -‐ EVIDENCE 66 . Judge blocked ∆ from crossing about the threats and ∆ was convicted. including robbery and assault. he’d do it himselfàprobative of his truthfulness. o AGREE! LC erred by perceiving the threats as probative only of violence because the witness’ threats also implicated his truthfulness. 608(b) is usually used when parties know each other. This means that they can ask. Rationale: Three views of FRE 608(b): § Broad -‐ All conduct indicating bad character indicates untruthfulness. § Narrow – A crime only bears on veracity if it involves falsehood or deception.” ∆ wanted to show he made repeated threats to witnesses testifying in a related case. § Specific instances of conduct are admissible ONLY if conduct reflects untruthful character. 3. threatening witness is same as perjury) Facts: ∆ was on trial for conspiracy to distribute coke and sought to cross co-‐offender who “fingered ∆ as a drug source. robbery no) US v. Manske – 7th Cir.
§ If a conviction or a release (whichever is later) took place 10 years or more before the trial. § If a witness is a criminal defendant. that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. certificate of rehabilitation. or (2) the conviction has been the subject of a pardon. FRAUD. such as PERJURY. annulment. or other equivalent procedure based on a finding of innocence. evidence of the conviction shall be admitted unless its probative value on the topic of the witness’ credibility is SUBSTANTIALLY OUTWEIGHED by the risk of prejudicial effect on the DEFENDANT. JUSTIN WALES -‐ EVIDENCE 67 . The court may. Advance notice is required. if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. unless the court determines. or certificate of rehabilitation. evidence of the conviction is admissible only if its probative value SUBSTANTIALLY OUTWEIGHS its prejudicial effect. Evidence of juvenile adjudications is generally not admissible under this rule. in the interests of justice. whichever is the later date.-‐-‐For the purpose of attacking the character for truthfulness of a witness. (d) Juvenile adjudications. evidence of a conviction more than 10 years old as calculated herein. annulment. however. is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon. and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.(a) General rule. and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year. and § If a witness other than a criminal defendant has been convicted of a felony. § If ANY WITNESS has been convicted of a crime involving dishonesty or false statements. § Is not limited to felonies (b) Time limit. However. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction. such evidence shall be admitted unless its probative value is outweighed in ANY DEGREE by the risk of prejudice. or other equivalent procedure based on a finding of the rehabilitation of the person convicted. evidence of the conviction shall be admitted with no balancing of probative and prejudicial impact. (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted. (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment. (c) Effect of pardon. EMBEZZLEMENT. annulment. in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. subject to Rule 403.
Evidence of the pendency of an appeal is admissible. then it can’t come in. Any Witness NO NO NO Christopher Walken building a Robot JUSTIN WALES -‐ EVIDENCE 68 . Is Evidence of a Witness’ Past Conviction Admissible? Type of Conviction. but that does not mean the evidence of the conviction doesn’t come in. • • • 609(c): If the crime was pardoned or excused. ANY WITNESS Crime did not involve truth telling: Any witness EXCEPT criminal ∆ Crime did not involve truth telling: Criminal ∆ Witness YES YES YES NO YES YES NO NO Any Crime more YES than 10 years old. 609(d): Juvenile convictions don’t get in unless it’s for a non-‐accused witness (according to the discretion of the court).(e) Pendency of appeal. 609(e): You can show that a conviction is being appealed. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Type of Witness Substantially More Probative More Substantially More than Prejudicial Prejudicial than more Probative Probative Prejudicial than than Probative Prejudicial YES YES YES YES Crime Involved truth-telling.
This Picture will not be on Exam 609(a)(1) notes: Felony convictions. probative value must be Defense witness substantially outweighed by danger of unfair prejudice. and § the importance of getting the D’s own testimony. waste witness of time. § the importance of credibility issues. § whether D’s record is otherwise clean as opposed to a continuing pattern of offenses. or undue delay. 609(a)(2) notes: o Misdemeanor convictions. Admission under 609(a)(1)? Subject to Rule 403 balancing. All witnesses have a prior conviction for robbery in the past 5 years. & Prosecution confusion of issues. § • JUSTIN WALES -‐ EVIDENCE 69 . Defendant The probative value must outweigh its prejudicial effect. w/o balancing language. o Factors of probativeness under 609(a)(1) against the accused: § nature of the conviction. are nevertheless so probative on credibility that they should be automatically and always proper subjects for cross. § recency or remoteness. o Requires proof of element of the crime that can readily be determined— shows intent to not look into the underlying facts. T/f most courts say that trial judges lack discretion to exclude for crimes involving “dishonesty and false statement" and that FRE 403 does not operate here. § whether it is similar to the charged offense. misleading the jury. cumulative. whether serious enough to be felonies or not. o Basic concept = some crimes.
§ Limits: 1. • After a witness’ character for truthfulness has been attacked with evidence in the form of reputation or opinion evidence. o Reputation – Must demonstrate knows person and truly familiar with community. Evidence may refer ONLY to character for truthfulness 2. ∆ moved to preclude Gov from using a conviction to impeach him if he testified. but must lay foundation. Rationale: To properly perform balancing test. CHARACTER WITNESS Crimes of falsehood must be admitted. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation. Usually character witness is from same community and knows witness personally. need period of personal acquaintance. Other witnesses may testify about the testifying witness’ positive character. the court must know the factual context. § Credibility of witness may be attacked or supported by evidence in form of opinion or reputation. NO BOLSTERING.g. US – 1984 (To raise and preserve for reviw the claim of improper impeachment with prior conviction ∆ must testify. o Opinion – Same.. Opinion and reputation evidence of character. 3. and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Sometimes courts allow inquiry into the underlying acts o Rule 608(a) -‐ Evidence of Character and Conduct of Witness. but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness. it can be rehabilitated. Coordinating 608 with 609: Questioning about specific acts of conduct w/o mentioning conviction. entitled to review LC’s ruling denying his motion to forbit the use of a prior conviction to impeach his credibility.• Luce v. Introduce testimony by a character witness that the witness in question is untruthful. E. who didn’t testify at trial. LC denied the motion. Issue is whether ∆. Evidence of truthful character admissible ONLY after character of witness for truthfulness has been attacked by opinion or reputation evidence. Here. making a false claim whether the formal charges rest on a statute that expressly references deceit. No Specific Acts. • Character witness can testify to opinion or reputation.) Facts: During trial. jury found him guilty. JUSTIN WALES -‐ EVIDENCE 70 . precise nature of ∆’s testimony and whether the government would have even sought to impeach the ∆ is unknown. ∆ didn’t testify. Holding: In limine evidentiary ruling in federal court are not reviewable when the ∆ does not testify.
So she would probably not call a rehabilitating witness after one of the other Runaways told the court about said bad reputation. whether written or not. the statement need not be shown nor its contents disclosed to the witness at that time. or the interests of justice otherwise require. (oh no. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. me me me me) SPECIFIC IMPEACHMENT Rule 607 -‐ Who May Impeach. me me. Rule 613 -‐ Prior Statements of Witnesses (a) Examining witness concerning prior statement. This provision does not apply to admissions of a party-‐opponent as defined in rule 801(d)(2). Joan Jett don’t give a damn about her bad reputation. In examining a witness concerning a prior statement made by the witness. no no no no no no. but they have to show the opposing counsel the prior statement if they request it in order to repair the damage done by the attacker if he distorted the statement or wrenched it out of context. the lawyer can ask the witness directly about a prior statement they made. • (b) Extrinsic evidence of prior inconsistent statement of witness. JUSTIN WALES -‐ EVIDENCE 71 . o On cross. then the witness has to be given the chance to explain it (doesn’t have to be done in any particular order and doesn’t have to be done if justice requires otherwise). The credibility of a witness may be attacked by any party. including the party calling the witness. but on request the same shall be shown or disclosed to opposing counsel. not me. • b) If you prove a prior inconsistent statement with extrinsic evidence.
∆ can waive the right to exclude plea bargaining statements when offered for this purpose. π can’t call witness it knows wont give useful evidence just to impeach with PIS (Webster). Holding: It is an abuse of rule 607 to call a witness you know won’t give useful evidence just to get around hearsay bar in the hope that the jury will miss the distinction b/t impeachment and substantive evidence. (DeLillio) Cannot call witness for purpose of impeaching (Morlang). Notes: o Morlang: A party can’t call a witness where his testimony is known to be adverse for the purpose of impeaching him to get before the jury evidence JUSTIN WALES -‐ EVIDENCE 72 . King’s te stimony. EVEN when offered to impeach: When § FRE 410 – Statements made during plea bargaining. Gov called King to the stand as a witness against ∆. such statements will be excluded. o Calling witness just to impeach with prior statement: In criminal cases. would have cleared ∆. government called King in good faith.. The prosecutor can call an adverse witness who is crucial to case. NOTES: o Prior inconsistent statements are admitted for the impeaching (nonhearsay) purpose of proving vacillation. 1984 (Can’t call a witness just to impeach him and get hearsay evidence in) Facts: Webster. o Here. o Aside from a claim that the evidence of prior inconsistencies is being used for substantive purposes. so Gov introduced PIS that King made to the FBI that inculpated ∆. It’s not allowed to bring a witness you know won’t give valuable evidence just so you can bring in an impeachment witness to bypass hearsay problems. was convicted of aiding and abetting a bank robbery committed by King. if believed. ∆. § D can still argue that the impeachment statement is excluded under 403 because the jury wouldn’t be able to only view it for impeachment purposes. the court looks to the subjective intent of the prosecutor and decides that he brought the first witness for a good faith reason (he thought he would implicate D as evidenced by asking judge to allow her to examine the witness outside the presence of the jury b/c didn’t know what he would say). Webster claims that government only brought King on to impeach him. Rationale: Here. § FRE 408 – Statements made during settlement negotiations. If they hadn’t it would have been a violation. • Concern that prior inconsistent statements will be taken as substantive proof may persuade a court to exclude. Webster – 7th Cir. o The prior inconsistent statement exception allows you to bring in evidence that’s otherwise hearsay. US v. Also excludable under FRE 410 or FRE 408. but the hearsay doctrine prohibits their substantive use to prove what they asserted.Adverse party (usually who called the witness) must have a chance to interrogate her.
contending that the D had committed the murder in retaliation for the robbery. JUSTIN WALES -‐ EVIDENCE 73 . Jenkins v. D claimed he had never sold drugs before and said on cross that he could not remember (inconsistent) about what he said in the stationhouse. Miranda and right to remain silent hadn’t attached. Some prior inconsistencies are admissible as substantive evidence— those that fit FRE 801(d)1(A) b/c they were given in proceedings under oath and the declarant is now cross-‐examinable regarding them. • Weir case: Questioning about post-‐arrest but pre-‐warning silence does not violate the 5th Amendment. the D waives his right to silence by testifying. D testified at the trial and the prosecution brought out his pre-‐arrest silence on cross to impeach his story of self-‐defense. He didn’t tell anyone about it for two weeks. o Fourteenth Amendment -‐ fundamental unfairness: CL traditionally allows witnesses to be impeached by their previous failure to state something which naturally would have been asserted. D objected the use of silence to impeach. Rationale: Fifth Amendment -‐ Right to remain silent: D wasn’t arrested yet.o not otherwise admissible. The D is subject to cross impeaching his credibility just like any other witness by getting on the stand. the gov’t can use the statements to impeach. No fundamental unfairness. Uses Harris to show that the privilege is not a right to commit perjury. Qualifies in the sense that impeachment is necessary to alleviate the harshness of subjecting a party to the mercy of a witness who is recalcitrant or may have been tampered w/. States can limit this w/ evidentiary rules. Holding: Prior inconsistent statements made after arrest but before Miranda are admissible only for impeachment purposes—not for direct purposes. NY – 1971 (Can’t use Miranda violation to lie on stand) Facts: Guy arrested for selling drugs and before he’s Mirandized he says he’s sold drugs before. Prosecution conceded the statements were inadmissible under the exclusionary rule. Holding: The use of pre-‐arrest silence of a criminal defendant is allowed for impeachment purposes under the 5th Amendment. No DP violation to permit cross for post-‐arrest silence after the D takes the stand for purposes of impeachments. But even still. No governmental action induced the D to remain silent before arrest b/c occurred before taken into custody and given Miranda warnings. Doyle distinguished b/c affirmative assurances do not induce the silence. Anderson – 1980 (Pre-‐Arrest silence constitutionally OK because NOT induced by any government action) Facts: D stabbed and killed a man who robbed him the night before claiming self defense. Harris v. o You can’t claim a right to not incriminate yourself if you maintain that there hasn’t been a crime. This is a valuable aid to the jury in assessing the D’s credibility Dissent: Worries this will undermine Miranda and deter police from giving warning. Rationale: Even though there was a technical Miranda violation and the statements were suppressed earlier.
∆ was arrested and his luggage was searched without a warrant. Rationale: ∆’s testimony on direct could easily be understood as a denial of any connection to McLeroth’s shirt and as a contradiction of McLeroth’s testimony. asserting that ∆ supplied him with shirt and sewed the fake paockets. gov called attention to these answeres and then asked whether ∆ had anything to do with sewing makeshift pockets on the shirt. custom officer searched McLeroth and found cocaine sewed into false pocket in a t-‐shirt he was wearing. Holding: A ∆’s statements made in response to proper cross reasonably suggested by ∆’s direct examination are subject to otherwise proper impeachment by the government. The gov on cross reasonably called attention to ∆’s answers on direct and then asked whether he had anything to do with the shirts. FRE 403 and 611 are read to limit this form of impeachment. taking the stand in his own defense. Gov asked whether he had a T-‐shirt with pieces missing in his luggage. The fact that you didn’t is essentially the same as you saying “I killed the guy” and then getting on the stand and saying you didn’t CONTRADICTION Impeaching a witness by contraction entails a showing that something he said in his testimony is not so. but because speaks to the merits of the case. not only because it contradicts. not only because it contradicts. Is done by cross or extrinsic evidence. Havens – 1980 (Constitutionally excluded evidence can be used to impeach) Facts: After ∆ and McLeroth arrived at MIA from Peru. • BASCUAS: If you inadvertently kill someone in self-‐defense you are going to call the police. acknowledged. the seized t-‐ shirt was admitted into evidence with limiting instructions only to consider it for impeachment. When McLeroth implicated ∆. Counterproof that CONTRADICTS and tends to prove some other impeaching point – Usually gets in. ∆ said not to his knowledge. albeit by evidence that has been illegally obtained and is inadmissible as substantive evidence of guilty. McLeroth. • 3 Types of Admissible Conterproof: 1. At the trial. so you aren’t contradicting trivial points. On cross. Counterpoof that ONLY contradicts – Usually excluded b/c lacks relevance. This cross grew out of ∆’s direct JUSTIN WALES -‐ EVIDENCE 74 . ∆ said he did not. • Sometimes limited by court. A t-‐shirt from which pieces had been cut that matched the pieces sewn to McLeroth’s shirt was found in ∆’s luggage and seized. 2. McLeroth’s prior testimony that the cocke was taped around his body. testified against ∆. but denied that he had “ever engaged in that kind of activity” with McLeroth. ∆. who plead guilty. in direct testimony. but also would show bias 3. Counterproof that CONTRADICTS and tends to prove a substantive point – Usually gets in. The seized shirt was suppressed prior to trial. US v. After rebuttal testimony for the government.
testimony à therefore. but still couldn’t use the tainted evidence to impeach. Rehabilitation evidence must directly rebut impeachment. o There is no difference of constitutional magnitude b/t D’s statements on direct and his answers to questions put to him on cross that are plainly w/i the scope of the D’s direct examination. Harris and Hass reasoning applies. The gov’t can’t use power of cross to predicate the admission of illegal evidence. Can’t attempt to repair character for truthfulness BEFORE attack – You can ONLY do this if a witness has already been impeached. Ds will be compelled to forego testifying. Dissent: This interferes w/ unfettered right to testify on own behalf. but evidence allows parties wide latitude in crossing witnesses -‐-‐-‐ thus. • What constitutes an attack on credibility that paves the way for repair? o Obviously credibility is attacked if the adverse party does 1 or more of the 3 attacks on character: JUSTIN WALES -‐ EVIDENCE 75 . the ensuing impeachment didn’t violate his constitutional rights. § A party anticipating an attack should out the impeaching fact first. o When D testifies. court requires cross be proper. The admission of suppressed evidence must be warranted by something the D said (something perjurious). Will prevent looking like you are hiding something from jury. Agnello’s testimony was rsbly linked to direct. the rules allow for the other party to attempt to repair the damage so long as 2 conditions are met: 1. o Can’t turn the case upon a link b/t direct and proper questioning in cross. he must testify truthfully or SUFFER THE CONSEQUENCES! This is for arriving at truth and proper questioning is for the proper functioning of the adversary system. Thus. REHABILITATION Rebuttal – 608(a) – When a witness has been impeached. 2. The repair should be made at the point of attack.
Gov called Russel. not for impeachment. She testified that ∆ asked her to file false claims. Russel embezzled from ∆’s company to start her own and she alone committed fraud. Medical Therapy Sciences – 2nd Cir. an unindicted co-‐conspirator and trusted employee of ∆. The government was eliciting prior conviction as background information. On direct. in anticipation of ∆’s impeachment. therefore did NOT impeach Russell. ∆’s cross could be attack on veracity because of allegations of embezzlement/fraud implicate lack of truthfulness. you can ONLY rehabilitate if there is an attack on character for truthfulness. Rationale: 608(a) should make supporting character evidence available to a party who elicits impeachment material on direct for impeachment purposes. ∆ claimed in scope of direct and aimed at bias.. Holding: REHAB OK! Under 608(a). 1978 (A party can try to diffuse anticipated cross attack by bringing up other acts) Facts: Trial for false Medicare payment and related charges. and thus prosecution should NOT have been able to call rehabilitating witness. 608 has no limits that stops a party from offering character evidence under circumstances where it anticipates impeachment. Crossing the target witness on non-‐conviction misconduct under 608(b) 2. not just bias. • Specific instances of behavior may be used to cross-‐examine reputation/opinion witnesses called to repair evidence of good character to test the knowledge and judgment of the good character witness under Rule 405 if has a reasonable basis for the questions. PRIOR CONSISTENT STATEMENTS JUSTIN WALES -‐ EVIDENCE 76 . which is outside the relevance of character evidence.1. You can only call character witnesses as characters for truthfulness if impeachment was an attack on character for truthfulness. Proving that the target witness has prior convictions under 609 Evidence of Good Character – 608(a)(2) – Authorizes court to admit opinion or reputation testimony supporting credibility AFTER character for truthfulness has been attacked. Adducing testimony by a character witness that the target witness has bad character for truth and veracity (provable by opinion/reputation under 608(a)) 3. ∆ used infor and claimed establishing Bias. US v. Gov brought out that Russell had 2 priors and ∆ had accused her of embezzlement.
but any proof that could support the required finding is allowed. Kalaydjian – 2nd Cir. US v. 1986 Facts: Muslim dude affirmed on Koran instead of bible. • Rehab use of PCS post-‐attack is BROADER than 801(d)(1)(B) PCS hearsay exemption. It is important to remember that authentication is only one requirement that must be satisfied for admission of an item of evidence. too prejudicial. JUSTIN WALES -‐ EVIDENCE 77 . Rule 901 – Requirement of Authentication or Identification (a) General Provision – When a party seeks to introduce a document or any object or thing.Prior consistent statements admissible to rehabilitate a witness. FORBIDDEN IMPEACHMENT Rule 610 – Religious beliefs cant be used to bolster or impair credibility. This requirement also applies to testimony about conversations. as long as the attacking party suggested that the testimony was tainted by recent fabrication or undue influence or motive. For example. The examples provided in this part of the rule are typical methods litigants use. the party must also provide a basis for finding that the document or object really is what the proponent claims it is.. Π tried to ask why Holding: Can’t do that under 610. • Best example of rehabilitating effect: If the witness made her PCS before the alleged motive of influence came into playàEvidence that she previously said the same thing that she says at trial suggests that her testimony shouldn’t be rejected as a fabrication or discounted on account of supposed improper motive. (b) Illustrations – It is extremely easy to satisfy the authentication requirement. AUTHENTICATION Authentication is offering evidentiary stuff to support a finding that the matter in question is what its proponent claims. an authenticated document may still need to satisfy the rules concerning hearsay and original writing.
if (A) in the case of a person. including self-‐identification. internal paterns. based upon familiarity not acquired for purposes of the litigation. Nonexpert opinion on handwriting – Nonexpert opinion as to the genuineness of handwriting. Public Records or Reports – Evidence that a writing authorized by law to be recorded or filled and in fact recorded or filed in a public office. by opinion based upon hearing the voice at any time under circumstances connected with the alleged speaker. 7. Comparison by trier or expert witness – Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated 4. whether heard firsthand or through electronic recording. a call or communication that seems to be a reply will be treated as authenticated as actually having been made by the person or business that was the recipient of the original call or communication. § As long as the proponent offers enough proof of authenticity it will be up to the jury. and (C) has been in existence 20 years or more at the time it is offered. Process or System – Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result 10. report. is from the public office where items of this nature are kept. 5. FRE 104(b) – Makes trial judge a filter. in any form. statement. the call was made to a place of business and the conversation related to business reasonably transacted over the phone. contents. (A) is in such condition as to create no suspicion concerning its authenticity. show the person answering to be the one called. 9. substance. JUSTIN WALES -‐ EVIDENCE 78 . or a purported public record. Voice Identification – ID of a voice. Ancient Document or data compilation – Evidence that a document or data compilation. 8.1. Distintive Characteristics and the like – Appearance. • A common authentication technique recognized by this example is the REPLY DOCTRINE. circumstances. or other distinctive characteristics taken in conjunction with circumstances. in any form. Methods provided by statute or rule – Any method of authentication or identification provided by Congress or Rules. Telephone Conversation – Telephone conversations. 3. Testimony of witness with knowledge – Testimony that a matter is what it is claimed to be. or data compilation. if authentic. 6. If there is testimony about a phone call or other communication to a particular person or business. 2. would likely be. or (B) in the case of a business. (B) was in a place where it. but gives ultimate decision of authenticity to the juryàwe should be able to trust a jury to decide whether an object is the real thing. by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business.
so long as there’s sufficient proof that the evidence is what it purports to be. ∆ claimed that the ax was admitted without being authenticated because Papse’s testimony is inadequate. Howard-‐Arias – 1982 (Its sometimes okay to miss a link in the chain of custody and the evidence will still be authenticated) Facts: ∆ was a crew member on a fishing boat. US v. Bascuas: This case was wrongly decided. Officials recovered a bunch of weed before it sank. Rationale: The dude was being hit with an ax. The person the bag was delivered to at the crime lab. The seizing officer 2. so there all you need is the arresting/seizing officer. the witness only need to ID something sufficiently. what do you expect? The rule is satisfied and the evidence should be admitted once a prima facie case has been made. after that point the jury will decide whether it is the right ax. Chain of custody is more strictly enforced in criminal than in civil cases. the matter is then given to the jury to decide if it is the right one or not. 3. JUSTIN WALES -‐ EVIDENCE 79 . Too prejudicial What do you need to authenticate a baggie of coke? 1. Holding: Showing the “chain of custody’ is not an iron clad requirement. tested. Holding: Authenticated. and the fact that there is a missing link doesn’t prevent the admission of real evidence. but there were others that didn’t. and at that point. Johnson – 1980 (The requirement of authenticity as a condition precedent to admissibility is satisfied by evidence to support a finding that the matter is what its proponent claims…doesn’t have to guarantee it is such) Facts: Johnson was convicted of assault for an attack with an ax on a victim named Papse.US v. The chemist who runs the test at the lab to determine it was coke § Different than the ax in Johnson because you can’t really tamper with an ax. ∆ claims government failed to establish a continuous “chain of custody” for the weed. who was rescued when the boat was having boat problems. At trial. and transferred weed testified. Some officers who seized. the gov called Papse as a witness and offered an ax that was seized from ∆’s home during the execution of a search warrant. He failed to distinguish why this was the ax that hit him and not just any ax. Rationale: The person who seized the stuff HAS to testify.
Need technician to say they are accurate and were taken under good conditions. § Response has to speak back to the original § You can’t use the reply doctrine to authenticate the 1st email in a series. If you can’t do that then you need to get into IP addresses and shit like that. the letter was addressed to ∆. ANYONE there could authenticate it. Contained several personal references. Bagaric – 1983 (REPLY DOCTRINE. Notes on Authenticating Emails – Method for authentication in ACT to FRE 901(b)(4) is the reply doctrine: A letter may be authenticated as coming from a person by showing that it replies to an earlier communication to that person. Notes on Authenticating Writings: Stylistic patterns can be used to authenticate documents. Unlikelihood of fraud in a situation where a letter is written on ∆’s letterhead and appears to be signed by him. Here. Also have to show that the voices are actually the persons voices. ∆ challenges the admission of additional evidence linking him to MB (a letter found during a search of ∆’s home after his arrest) because it wasn’t properly authenticated. Tape Recordings – The party introducing a sound recording bears the burden of showing it’s an accurate reproduction of the relevant sounds à Must show that the person operating the machine was competent and the set up was proper and functioning well. including “appearance. contents. Doesn’t matter if picture was taken later.US v. substance. provide that the earlier communication has been authenticated. X-‐Ray – More like recording than photographs. just need to make a prima facie case. Rationale: FRE 901(b)(4) allows authentication by circumstantial evidence. postmarked where MB lived. To authenticate an original email you could go to someone’s house with a search warrant and seize the computer. It began “Dear ∆” and was signed “Yours. MB was an unindicted co-‐racketeer who participated in the enterprise’s affair between 77-‐78. circumstantial authentication) Facts: ∆s were convicted of RICO violations. It’s also possible that very few other people knew the info.” The circumstantial evidence here is the contents of the letter—it contained evidence that only ∆ knew. Can be done by someone who heard the guy’s voice only once or twice. Photographs – All you need is to show that it is an actual representation of what the intersection looked like at the time of accident. MB’s alias”. JUSTIN WALES -‐ EVIDENCE 80 . FRE 407 problem if subsequent acts are evident from photo. Holding: Authenticated! There was ample demonstration that the letter was what the government claimed it to be. and other distinctive characteristics of the writing. but that’s okay because you don’t have to PROVE the evidence is authentic.
US v. or of a political subdivision. Pool – 1981 (Authenticating phone calls) Facts: 8 ∆s were convicted of drug charges. control. signs. One count was using phone to facilitate illegal importation. or origin (8) Acknowledged documents – Documents accompanied by a certificate of acknowledgment executed in the manner provided by law or by a NOTARY PUBLIC or other officer authorized by law to take acknowledgment. or of any state. officer. SELF-‐AUTHENTICATION Rule 902 – Self-‐Authentication – The items described in this rule’s examples are considered SO LIKELY to be what they seem to be that further proof is not required. Holding: A phone call out of the blue from one who IDs himself as X may not be. or other publications purporting to be issued by public authority (6) Newspapers and periodicals – Printed materials purporting to be newspapers or periodicals (7) Trade inscriptions and the like – Inscriptions. (3) Foreign Public Documents (4) Certified Copies of Public Records (5) Official Publications – Books. and a signature purporting to be an attestation of execution. Based on this convo. Here. tags. no voice comparisons were made. or Panama Canal Zone. or insular possession thereof. (2) Domestic Public Documents not under Seal – A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in (1) hereof. pamphlets. department. sufficient authentication of the call as in fact coming from X. DEA agent got a call from “Chip” (∆’s nickname) saying that X wanted the DEA agent to get a different boat. having no seal. commonwealth. in itself. pacific islands. JUSTIN WALES -‐ EVIDENCE 81 . circumstantial evidence may be used to meet this standard. The convo was not recorded and agent never met ∆-‐-‐only way agent made ID was through self-‐authentication. Rationale: The standard of admissibility of voice ID testimony is prima facie. there is NOT sufficient evidence to prove that the agent actually heard ∆’s voice because he never met ∆. if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. Could be possible it was all made up. or agency thereof. territory. and the use of a nickname doesn’t support it because tons of people know his nickname. or labels purporting to have been affixed in the course of business and indicating ownership. (1) Domestic Public Documents under Seal – A document bearing a seal purporting to be that of the US. district. the agent IDed ∆.
(12) Certified Foreign Records of Regularly Conducted Activity – Civil Cases Notes on Self-‐Authentication § Burden on the opponent to prove the lack of authenticity. human memory cannot summarize it with the precision often needed § Burden of requiring original writing is small compared to the increased accuracy that an original makes possible. signatures thereon. certifying that the record (A) was made at or near the time of the occurrence of the matters set ofrth by. and copies of writing have been viewed with suspicion.” needs actual evidence. Can’t just say “that’s not authentic. in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. Ex – Transcript of a court proceeding is prima facie correct as a statement of testimony taken and proceedings had but is not considered official. 3. § 902(10) – Makes certain documents presumptively or prima facie genuine or authentic. or from information transmitted by. a person with knowledge of the matter. document. JUSTIN WALES -‐ EVIDENCE 82 . and documents relating thereto to the extent provided by general commercial law (10) Presumptions under Acts of Congress – Any signature. or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic (11) Certified domestic records of regularly conducted activity – The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under 803(6) if accompanied by a written declaration of its custodian or other qualified person. Modern photocopying hasn’t always been available. is distinctly inferior § Language is complex. and (C) was made by the regularly conducted activity as a regular practice. The written word has special sanctity in legal affairs justifying more stringent proof requirements 2. (B) was kept in the course of regularly conducted activity. Any method of proving the content of a writing other than the writing itself. and the slighted variation of wording or punctuation can make a big difference § Unless a writing is very short. § Websters dictionary is not self-‐authenticating BEST EVIDENCE RULE Best Evidence Rule rests on 5 considerations 1.(9) Commercial paper and related documents – Commercial papers.
Requiring proponents to produce the original safeguards against forgeries 4. recording. as long as a genuine question is raised to the authenticity of the original OR under the circumstances it would be unfair to admit the duplicate instead of the original. A key question in the defendant’s conviction was what exactly he and his co-‐ defendant testified to during the subcommittee hearings. Rationale: The Best Evidence Rule is for writings that are sufficiently complex. by its terms or because of its policy reason. Examining the writing may help resolve disputes over authenticity. or photograph is not closely related to a controlling issue FRE 1005 – Prevents disruption of public recoding systems by making it unnecessary for litigants to produce the original of a public record. US v. through counsel. numbers. or words” that are “set down by handwriting” or in other ways. Meyers v. The defendant. Duffy – 1972 (Sometimes a writing isn’t a writing. Production of the original assures completeness and prevents segments from being removed from their contexts 5. FRE 1004(4) -‐ Provides an escape clause to FRE 1002 by dispensing with the requirement of producing the original when the writing. There was no chance that the reader would mistranslate 3 letters. The Best Evidence Rule. FRE 1002 – Codifies Best Evidence Doctrine and extends it to recordings and photos FRE 1003 – Allows duplicates to be admitted the same as original. • FRE 1001(a) – Defines “writing” as “letters. ∆ objected to the admission of the testimony about the shirt and asked government to produce it. argued JUSTIN WALES -‐ EVIDENCE 83 . FRE 1006 – Creates an exception for large volumes do documents. US – 1948 (Statements that are alleged to be perjurious may be proved by any person who heard them) Facts: The defendant was convicted of suborning perjury when he testified before a Senate subcommittee investigating fraud and war profiteering. Depends on how complicated…BER doesn’t apply to simple markings on chattel) Facts: Duffy was convicted of transporting a stolen car. At trial. local cop and FBI testified that the trunk of the stolen car had 2 suitcases and a shirt with the inscription “DUF”. Holding: REJECT BEST EVIDENCE CLAIM. is not applicable in this case because the marking wouldn’t under ordinary understanding be considered a writing. Doesn’t apply to simple inscriptions on chattels.
It was the contractor’s duty to level it but he wasn’t required by K to remove the excess sand. Rationale: Upon a proper showing of unavailability of the original. ∆ hired a general contractor to construct a parking lot. secondary evidence of its contents may be received. Best Evidence Rule only bars his testimony if he wasn’t present and was testifying about the transcript. the original must be produced unless its unavailable for some reason other than serious fault of the proponent. § Under BER. JUSTIN WALES -‐ EVIDENCE 84 .that the best evidence rule required that only the transcript of the subcommittee hearing be used to determine what was said during the hearing. but secondary evidence isn’t admissible unless the proponent of the testimony shows that a personable and diligent search has been made without success. Flanagan – 1965 (Need to do a reasonable search for original writing) Facts: π is a trucker and hauler of sand and gravel. Because the trial court used witness testimony and shorthand notes from a witness present at the hearing. who was present. in order to permit proof of secondary evidence. Π did the work and ∆ refused to pay so π sued for breach of K. Defendant objected to the other evidence and claimed the actual tally sheets should have been required. and the record in this case doesn’t show the LC made this necessary finding. the best evidence rule is limited to cases where the contents of a writing are to be proved. No one in this case thinks the Chief Counsel. Here. Rationale: Best evidence rule is limited to cases where the contents of a writing are to be proved. Sylvania Elec Prod v. which terms are material to the issue. There was a hill on the site which had to be removed. or by other means and not exclusively by an official transcript. there is not sufficient proof that the original tally sheets were unavailable or that a reasonable search had been made to find them. Perjurous statements may be proved by others who heard them. or by notes recorded in shorthand. the trial judge must make a preliminary finding that the original was unavailable. there was not an attempt to prove the writings. Π claims ∆ made an oral K whereby ∆ would haul the material away. Plaintiff offered evidence to prove his claim which was based on daily truck hour slips on tally sheets made at the job site. the defendant argued his conviction should be overturned. and in this case. Holding: In federal courts. Holding: In proving the terms of a writing. shouldn’t testify because he was testifying about what he heard.
Carmichael – Dow applies to all experts. or other specialized knowledge will help the jury understand then a qualified witness may testify. helpful to determining a fact at issue. § Kumho v. and are not based on special knowledge. § Daubert v. Rule 702 – Expert Testimony – If scientific. not just scientists JUSTIN WALES -‐ EVIDENCE 85 . technical. Merrel Dow – Judges are the gatekeeper of expert testimony. They can exclude their testimony if not based on actual science. then the testimony is limited to opinions and inferences that are rationally based on perception.OPINION TESTIMONY Rule 701 – Lay Opinion Testimony – If the witness is not testifying as an expert.
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