This action might not be possible to undo. Are you sure you want to continue?
com EVIDENCE OUTLINE CASEY – FALL 2009
Types of Courtroom Evidence A. Types of Evidence 1. Evidence i) Evidence = testimony, writings, material objects, or other things presented to the sense that are offered to prove the existence or nonexistence of a fact. ii) Evidence includes all of the information given to the trier of fact during trial, except for the questions and statements made by the attorneys and judges. iii) Evidence is divided into 6 different categories 2. Oral Testimony i) Fact Witnesses a) People who perceived facts related to the lawsuit and testify about those facts. ii) Expert Witnesses a) People who use specialized knowledge to interpret evidence or explain it to the jury. iii) Character Witnesses a) People who offer information about the good or bad character of a party or witness. 3. Real Evidence i) Real Evidence = any physical evidence that a party claims played a direct role in the controversy. ii) All real evidence must be authenticated – the proponent must offer some proof that the piece of physical evidence is what she claims it to be. 4. Documents i) Documentary evidence encompasses any type of writing or recording of information. ii) Documents must be authenticated to ensure that they are what the proponent claims them to be. iii) Some writings are self-authenticating. 5. Demonstrative Evidence i) Parties create demonstrative evidence to illustrate concepts or facts to the jury. ii) Charts, tables, pictures, maps, graphs, PowerPoint slides and computer simulations are common types of demonstrative evidence. 6. Stipulations i) To introduce a stipulation as evidence, both parties must agree to its exact language. 7. Judicial Notice i) If a fact is indisputably true, the trial judge can taken judicial notice of the fact. ii) To support judicial notice, the fact must either be generally known or capable of accurate and ready determination by consulting an unimpeachable source. iii) If a photo, video, or audiotape depicts the events of a controversy directly, it constitutes real evidence. B. Circumstantial Evidence 1. Circumstantial Evidence = any evidence that requires the jury to make an inference connecting the evidence with a disputed fact. 2. The distinction b/w circumstantial and direct evidence has no legal effect.
II. Federal Rules of Evidence: Why, Who, Where, When A. Why?
1. Evidentiary Rules Exclude Evidence i) To protect the jury from misleading information ii) To eliminate unnecessary delay and promote efficiency iii) To protect a social interest, such as a confidential relationship iv) To ensure that evidence is sufficiently reliable
Downloaded From OutlineDepot.com
1. The Federal Rules of Evidence come from 2 different sources: i) Notes written by the Advisory Committee a) Offers a nutshell explanation of the rules ii) Committee Reports and other legislative history from Congress C. Where? 1. Rule 101: Scope i) These rules govern proceedings in the courts of the United States, before the U.S. bankruptcy judges, and U.S. magistrate judges to the extent and with the exceptions stated in Rule 1101. 2. Rule 1101 i) The rules apply to all federal district courts and courts of appeals. ii) The rules do not apply to the U.S. Supreme Court. iii) Agencies are free to adopt the FRE if they choose. iv) A provision of the Internal Revenue Code directs that court to apply the FRE in certain proceedings. D. When? 1. Rule 1101(b) i) The FRE govern civil and criminal trials, and admiralty and maritime cases. ii) The FRE apply only to the trial. iii) Exempts a court’s exercise of summary contempt power from the FRE. 2. Rule 1101(c): Applicability of Rules – Rule of Privilege i) The rule with respect to privileges applies to all stages of all actions, cases and proceedings. 3. Rule 1101(d): Applicability of Rules – Rules Inapplicable i) The rules (other than with respect to privileges) do not apply in the following situations: a) Preliminary Questions of Fact (1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104. b) Grand Jury c) Misc. Proceedings (1) Proceedings for extradition or rendition (2) Preliminary examinations in criminal case (3) Sentencing, or granting or revoking probation (4) Issuance of warrants for arrest, criminal summonses, and search warrants (5) And proceedings with respect to release on bail or otherwise.
III. Structure of a Trial A. In the Courtroom
1. Pretrial Motions i) Motions in Limine a) Focus on whether or not info is admissible under the FRE b) “In Limine” is Latin phrase meaning “at the threshold” signaling the pretrial nature of the motions. ii) Motion to Suppress a) Claiming the opponent’s evidence was illegally obtained iii) Motion for Summary Judgment a) Argue that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 2. Jury Selection 3. Opening Statements i) An effective opening statement: a) Tells a compelling story, and b) Reflects the evidence that will unfold during the trial. 4. π’s/Prosecutor’s Case-in-Chief 5. Δ’s Case-in-Chief or Case-in-Defense 6. π’s/Prosecutor’s Case-in-Rebuttal
Downloaded From OutlineDepot.com 7. 8. 9. 10. 11. 12. Δ’s Case-in-Rebuttal or Case-in-Rejoinder Further Rebuttal and Rejoinder Closing Statements Instructing the Jury Deliberation Verdict
IV. Raising and Resolving Evidentiary Objections A. Disputing and Defending Evidence
1. Raising Objections i) Rule 103: Rulings on Evidence a) Error may not be predicated upon a ruling which admits or excludes evidence unless (1) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. ii) The rule establishes 2 mechanisms for disputing evidence at trial: a) By objection and by motion to strike (1) Motion to strike occurs after disputed evidence has already entered the record (2) Both formats claim that evidence is inadmissible. iii) Requires parties to challenge evidence in a timely manner a) Lawyers must object to evidence as soon as the ground for objection is known or reasonably should be known b) If a trial attorney fails to object promptly, an appellate court will not consider the evidentiary challenge. iv) Requires trial lawyers to state a specific ground for any objection a) If a trial attorneys fails to offer a specific ground for an objection, an appellate court will not consider the evidentiary challenge b) Requires attorneys to designate the portion of a document or witness’s testimony to which they object. (1) If the entire document or testimony is objectionable, the atty can object to the whole. (2) If just one part of the evidence is inadmissible, the atty must specify that portion. 2. Defending Evidence i) Rule 103(a): Rulings on Evidence a) Error may not be predicated upon a ruling which admits or excludes evidence unless (1) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. ii) When one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails. iii) A formal offer of proof is unnecessary if the substance of the evidence is apparent from the context within which questions were asked. 3. Maintaining Objections i) Rule 103(a): Rulings on Evidence a) Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. ii) Rule 103 abolishes the need for exceptions. a) Once trial counsel has made a specific and timely objection, and the judge has overruled the objection, the issue is preserved for appeal. 4. Shielding the Jury i) Rule 103(c): Rulings on Evidence
ii) The substantial right standard applies even when an appellate court reviews an evidentiary decision de novo. “Any Tendency” to Make a Fact “More Probable or Less Probable” i) “More Probable or Less Probable” indicates that an individual piece of evidence can be relevant even if it does not conclusively establish any fact on its own. 2. Relevance A. b) By Act of Congress c) By the FRE. from hearing about inadmissible evidence. as much as possible. or d) By other rules prescribed by the Supreme Court pursuant to statutory authority. Intro i) Appellate courts rarely reverse trial decisions based on evidentiary issues alone. ii) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. if the judge had made the correct ruling. expect as otherwise provided a) By the Constitution of the U. proceedings shall be conducted. Rule 402: Relevant Evidence Generally Admissible. 3.S. C. Response by the Judge 1. Irrelevant Evidence Inadmissible i) All relevant evidence is admissible. ii) Requires the parties to contest evidentiary issues in a manner that shields the jury. 4 . the court. The Rules 1. On Appeal 1. the judge tells the jury to disregard evidence. the judge gives the jury an instruction to explain that the evidence may be used for some purpose but not for others. the jury would have reached a different verdict.Downloaded From OutlineDepot. upon request. 3. so as to prevent inadmissible evidence from being suggested to the jury by means. 2. Rule 105: Limited Admissibility i) When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted. shall restrict the evidence to its proper scopie and instruct the jury accordingly. Definitions i) Sustain a) If the judge agrees with an evidentiary objection ii) Overrule a) If the judge disagrees with the objection iii) Curative Instruction a) If inadmissible evidence has inadvertently reached the jury’s ears. Rule 103: Rulings on Evidence i) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. iv) Limiting Instruction a) When evidence is admitted for specific. sometimes explaining why the evidence is misleading or inappropriate to consider. b) Rule 103 allows appellate judges to reverse a trial decision for evidentiary error only if the error affected a “substantial right” of one of the parties. to the extent practicable. Rule 401: Definition of ‘Relevant Evidence’ i) “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. ii) Evidence which is not relevant is not admissible. B. such as making statements or offers of proof or asking questions in the hearing of the jury. a) Appellate courts apply an abuse of discretion standard to most claims of evidentiary error. limited purposes. V.com a) In jury cases. i) Under Rule 103. An evidentiary ruling affects a party’s substantial right only if there is a reasonable probability that. 2. most evidentiary missteps constitute harmless error.
ii) A lawyer must consider carefully whether evidence is sufficiently important to outweigh the possibility of opening the door to undesirable opposing evidence. 2. or other respects to satisfy Rule 401. Unrelated Misdeeds i) Courts occasionally conclude that evidence is too far removed from the parties’ dispute in time.Downloaded From OutlineDepot. “Unfair” i) Unfairly prejudicial evidence lures the fact finder into declaring guilt or liability on a ground different from proof specific to the offense charged. B. ii) The extent to which the jury might overvalue the evidence. 6.” 4.com ii) A piece of evidence is relevant as long as it makes some fact of consequence “more probable” or “less probable. Prejudice. Judges are more likely to exclude evidence that triggers strong emotional reactions. “May” i) A judge may or may not exclude evidence under Rule 403 ii) Appellate courts rarely reverse Rule 403 rulings 3. confusion of the issues. ii) Courts generally should not create broad per se rules governing the relevance of whole categories of evidence. but the connection does not need to be as strong as the one connoted by the word “material” iii) The FRE usually exclude evidence used to show that a person has a propensity to act in a particular way. a fact that matters to someone who is trying to establish a fact that is “of consequence” to the lawsuit. despite an opponent’s attempts to minimize the impact of the facts by conceding them. or misleading the jury. In the Courtroom 1. 2. The Rule 1. Controversy and Consequence i) Evidence is relevant even if it addresses a matter that the opponent concedes. or needless presentation of cumulative evidence. or Waste of Time i) Although relevant. 3. or delay must “substantially” outweigh is probative value. 5 . waste of time. ii) Allows parties to introduce direct evidence of damaging facts.that is. confusion. Confusion. its unfair prejudice. In the Courtroom 1. Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice. Confusion. takes a piece of evidence which is only slightly relevant and gives it undue weight. evidence may be excluded if its probative value is substantially outweighed by the danger of a) Unfair prejudice. place. 5 factors frequently influence a judge’s decision when applying Rule 403: i) To extent which the evidence will arouse emotions or irrational prejudices among the jurors. Hindsight i) Courts try to eliminate the effect of hindsight on a jury’s decision. “Substantially Outweighed” i) For the judge to exclude relevant evidence. 4. Case-by-Case Determination i) Questions of relevance under Rules 401 and 402 are determined in the context of the facts and arguments in a particular case. Opening the Door i) Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. Must Be a Fact “of Consequence” i) The fact itself must be related to the cause of action. VI. or Waste of Time A. ii) The evidence must connect legal issues involved in the case. B. or by b) considerations of undue delay. 5. 4. Negative Evidence i) Judges frequently reject negative evidence. ii) Unfairness in this context means that the evidence will tempt the jury to decide the case on grounds different from those the law demands.
ii) The waste of time or confusion cause by introducing lengthy additional documents can substantially outweigh any probative value of the information. especially given the broad definition of relevance under Rule 401. while contributing little probative value. 6. cause undue delay.com iii) The strength of connection b/w the evidence and the elements of the case. 2. Flight i) Courts carefully analyze the circumstances surrounding flight in judging admissibility. Undue Delay. v) Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. like plea-bargaining or purchasing liability insurance. 3. If alternative routes are available. Waste of Time. Evidence that strongly supports the position of one party and damages the other is not unfair. iv) Whether the advocate can prove the same facts through less prejudicial or confusing means. because the evidence simply isn’t relevant. Subsequent Remedial Measures A. If the judge can redact prejudicial components of the evidence or instruct the jury to refrain from improper use of the evidence. giving no indication of how the crime occurred or who was responsible. Socially Undesirable Behavior i) Parties sometimes attempt to introduce evidence of an opponent’s unconventional lifestyle. and Needless Duplication i) The rule empowers trial judges to exclude evidence that would waste time. 5. the judge is likely to admit the challenged evidence. but will exclude photos that greatly increase emotional reactions without adding new information. it is just persuasive. Damaging Evidence i) Rule 403 permit exclusion of evidence that is unfair only in the sense that it inflames the jury’s passions or otherwise introduces an improper basis for decision. even when that evidence is highly emotional. Intro & Policy 1. hoping that the jurors’ biases will lead them to view the opponent negatively. the possibility of unfair prejudice is more substantial. or needlessly duplicate other evidence. a) Judges exclude some of these attempts under Rule 402. ii) The evidence targeted by these rules tends to cause a high degree of unfair prejudice.Downloaded From OutlineDepot. lifestyle evidence may have some bearing on issues in the case. Videos and Photos i) If a photo or video shows only the effects of the crime. ii) Courts will almost always admit some photos of the victim to illustrate elements of the crime. the prosecution can choose to present detailed evidence rather than accepting a Δ’s offer to stipulate. Judges are more likely to admit evidence that is closely related to essential elements of a case. Rule 407: Subsequent Remedial Measures 6 . he will be more likely to admit the evidence. 7. 4. B. Rules 407 to 411 furthers 2 goals: i) Each rule promotes a socially valuable activity. by protecting those who engage in that activity from evidence that might be used against them. ii) The presence of a stipulation may affect the balance of the unfair prejudice and probative value under Rule 403. VII. b) Other times. Stipulations i) Facts related to an element of a crime or civil claim are “of consequence” even if the parties do not actually dispute the element. iii) Rule 403’s balancing test a) Evaluate unfair prejudice and probative value in the context of the full evidentiary record b) With respect to most elements of a crime. courts will admit it. The rules apply Rule 403’s balancing approach to exclude particular categories of evidence. a) Where the evidence relates directly to the crime or other litigated issue. ii) Courts are very sensitive to the prejudicial impact of evidence that a party has expressed racist attitudes.
Negligence. C. measures are taken that. physical. 6. c) Firing or disciplining an employee who was responsible for the disputed injury may count as a remedial measure. Other Purposes: Ownership or Control i) If a Δ claims that it did not own or control the instrument that injured the π. such as i) Proving ownership. What is a “Measure”? i) Rule 407 bars evidence of “measures that if taken previously. including strict liability. evidence of the subsequent measures is not admissible to prove i) Negligence ii) Culpable conduct iii) Defect in a product iv) Defect in a product’s design. Other Purposes: Feasibility i) Rule 407 specifically permits a party to introduce evidence of subsequent remedial measures against a party who controverts feasibility. a) Taking products off the market or issuing recalls are also measures that fall within Rule 407. “If Controverted” i) The π cannot introduce evidence of subsequent remedial measures to prove ownership or control unless the Δ somehow denies that she owned or controlled the dangerous condition. b/c few people fix items that don’t belong to them. When is a Remedial Measure “Subsequent”? i) The rule shields only measures taken after the injury itself. Strict Liability. ii) The π cannot use the Δs design change to prove feasibility unless the Δ has argued that there was no feasible way to make the conditions safer. πs can readily use the conduct or products of other individuals to show feasibility. 7. control. 3. 4. a) Non-parties have no fear of implicitly admitting liability. or v) Need for a warning or instruction. iii) Δ doesn’t have to change a product or dangerous condition directly to engage in remedial measure. but it may mitigate harm suffered by the π ii) FRE 407 applies to any type of action regardless of the underlying theory of recovery. b) Evidence that the party did subsequently remedy the danger is strong evidence that the change was feasible. if controverted.com 1. ii) Parties injured after the 1st injured π may be able to rely upon evidence that is unavailable to the initial π. b) A policy change may also constitute a “measure” under Rule 407. and Other Mental States i) A remedial measure is unlikely to protect 3rd parties from injury. to encourage prompt remedial measures. 5. would have made the injury or harm less likely to occur. or feasibility of precautionary measures. ii) Most federal courts have held that Rule 407 only excludes evidence of subsequent remedial measures undertaken by a party to the lawsuit.Downloaded From OutlineDepot. In the Courtroom 1. 2. Remedial Measures by Non-Parties i) Central policy behind the rule. the π may introduce evidence of subsequent remedial measures. if taken previously. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose. 7 . or other constraints.” ii) Actions that would have made the injury or harm less likely to occur are remedial. but as evidence that the Δ did own or control that instrument. after an injury or harm allegedly caused by an event. When. not to prove that the original condition of the instrument was unreasonably dangerous. or ii) Impeachment. a) A party disputes feasibility when it claims that it could not have remedied a dangerous situation b/c of economic. would have made the injury or harm less likely to occur. 2. applies only when 1 party seeks to introduce evidence of a measure carried out by another party. c) When the product has many marketplace equivalents. so they do not need incentive of FRE 407.
D. B. or to impeach through a prior inconsistent statement or contradiction: (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.” iii) Rule 408 requires that the parties dispute some aspect of the claim. or to impeach through a prior inconsistent statement or contradiction. not even evidence of their own offers or statements. a) The claim must be disputed as to validity or amount. iii) One strategy is to avoid calling witnesses who were directly involved in remedial measures. 2. because they are particularly vulnerable to impeachment. iv) The rule protects all conduct or statements made in compromise negotiations. A judge is most likely to admit the evidence when: a) A witness makes a specific representation that conflicts with the subsequent remedial measure b) The witness makes and absolute declaration like the product was perfectly safe. Limits on Rule 408: What is Still Admissible? i) Rule 408: Compromise and Offers to Compromise a) Evidence of the following is not admissible on behalf of any party. Rule 408 doesn’t shield discussions they hold on other matters. not just the operative offers and acceptances. and (2) Conduct or statements made in compromise negotiations regarding the claim. the Δ can request a limiting instruction. If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability. v) Excludes statements and conduct made during compromise negotiations only when a party offers that evidence for 1 of 3 purposes. while restraining them from using that evidence to establish liability. the disagreement b/w parties must have matured into a “claim. and any consideration extended as part of the settlement. 8 . The Rule 1. Broadest Reach: What is Excluded? i) Rule 408: Compromise and Offers to Compromise a) Prohibited Uses. invalidity of. promises to accept. ii) For Rule 408 to apply. offers to accept.Downloaded From OutlineDepot. promises. or amount of a claim that was disputed as to validity or amount. Rules 105 & 403: Limiting Instructions and Unfair Prejudice 1. and/or c) The witness making the statement was personally involved in implementing the remedial measure. a) A party cannot introduce any evidence of settlement offers or negotiating statements. Settlements and Offers to Compromise A. iv) Statements or conduct must occur during compromise negotiations or while compromising or attempting to compromise the claim.com 8. Intro & Policy 1. The primary rationale behind Rule 408 is policy justification: to ensure that parties are not inhibited from making offers or statements during the settlement negotiation process. ii) Trial judges look for a closer fit b/w the remedial measure and the testimony it is supposed to impeach. Other Purposes: Impeachment i) Rule 407 allows a party to introduce evidence of subsequent remedial measures for the purpose of impeachment. acceptances. or amount of a claim that was disputed as to validity or amount. Evidence of the following is not admissible on behalf of any party. ii) Rule 408 applies to all parties. i) The instruction will attempt to explain the permissible uses of the subsequent remedial measures to the jury. when offered to prove liability for. iv) Another strategy is for defense witnesses to limit their testimony to general statements about safety. when offered to prove liability for. iii) It encompasses all offers. invalidity of. VIII. b) If both parties initially agree that liability exists and also agree on the extent of damages.
the prosecutor and Δ may introduce evidence from those negotiations in a subsequent criminal case. agency exercising its regulatory power a) But the prosecutor and criminal Δ can introduce evidence of other statements made during settlement discussions related to the regulatory enforcement action. 3. In the Courtroom 1. Examples of permissible purposes include: (1) Proving a witness’s bias or prejudice (2) Negating a contention of undue delay. Bias 9 . vi) Critical question to ask in evaluating admissibility under Rule 408: What is the party trying to prove by offering the evidence? 3. Settlements with 3rd Parties i) Rule 408 applies to all settlement discussions. iv) Prosecutors and criminal Δs are prohibited from introducing evidence of civil settlement offers. even if those occurred when negotiating with a gov. b) Permitted Uses. and the Δ settles with 1 of them. or enforcement authority. and (3) Proving an effort to obstruct a criminal investigation or prosecution. and d) Whether the parties used phrases like – w/o prejudice. 5. C. When do “Compromise Negotiations” Occur? i) Some of the factors that judges consider when deciding whether a statement occurred during compromise negotiations: a) Whether the statement was unilateral or occurred during bilateral discussions b) Whether either party made a concrete offer c) Whether attorneys were involved in the discussion. ii) Under most circumstances. 4. neither the prosecutor nor the accused may rely during a criminal trial on evidence from civil settlement negotiations. 2.Downloaded From OutlineDepot. the remaining π cannot introduce the settlement as evidence of the Δ’s liability. ii) If 2 πs sue a Δ. 6. Bias i) One of the most common “other” purposes claimed by parties under Rule 408 is showing that a witness is biased. A party may use evidence of settlement discussions to counter an argument that they delayed in pursuing their 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. This rule does not require exclusion if the evidence is offered for purposes not prohibited by sub (a). More Limiting Language i) Rule 408: Compromise and Offers to Compromise a) Evidence of the following is not admissible (1) Conduct or statements made in compromise negotiations re: the claim. iii) When the civil settlement discussions occurred in a civil proceeding that involved a government agency exercising its regulatory. even those conducted by parties who are no longer involved in the case. Other Purposes i) The rule permits use of evidence from settlement discussions for other purposes. Impeachment: Inconsistency v. promises and acceptances in criminal proceedings.com a) To prove liability or non-liability b) To establish the amount of damages. or c) To impeach a witness’s testimony through a prior inconsistent statement. investigative. or enforcement authority. ii) Most judges also agree that a claim arises once a party has hired and attorney and threatened to sue. iii) Evidence of 3rd party settlements is likely to confuse or unfairly prejudice the jury. ii) Courts have allowed parties to offer statements from settlement from settlement negotiations to support a claim that an opposing party engaged in frivolous or vexatious litigation. What is a “Claim”? i) A claim arises once a complaint has been filed. investigative.
Hospital. Rule 403 cannot rescue evidence that another rule has rejected. Furnishing. Preexisting Evidence i) This rule does not require the exclusion of any evidence otherwise discoverable merely b/c it is presented in the course of compromise negotiations. Medical Expenses A. B. Criminal Plea Bargaining A. but not the 2nd (inconsistency) ii) Specifically prohibits the use of settlements or settlement negotiations to impeach a witness through a prior inconsistent statement or contradiction. To Prove Liability i) Rule 409 only excludes evidence if it is offered to prove liability for the injury. 7. 10 . D. Rule 403’s balancing test serves as a back-up to Rule 409. ii) The rule does not cover offers to pay lost wages. Rule 403 1. the evidence is admissible. ii) The rule excludes the admission of evidence from civil and criminal trials. 2. Rule 409: Payment of Medical and Similar Expenses 1. and the rule allows parties to introduce evidence from these settlement discussions in a subsequent criminal prosecution. When Rule 408 allows introductions of evidence. a judge may still determine under Rule 403 that admitting the evidence would cause unfair prejudice substantially outweighing any probative value. neither the prosecutor nor the accused may introduce evidence from prior civil settlement negotiations for any of the purposes prohibited by Rule 408 a) Exception for settlement discussions conducted as part of a civil regulatory. When evidence passes Rule 409. Evidence of furnishing or offering or promising to pay medical hospital. however. 2. iv) The rule prohibits any party from introducing evidence against the Δ who participated in the plea bargaining but allows the Δ to introduce evidence from that process against others. Criminal Cases i) Any criminal settlement negotiations are not covered by Rule 408. ii) In most criminal trials. Opening Language i) Rule 410: Inadmissibility of Pleas. The Rule 1. i) If a party offers evidence of medical payments to prove some other fact of consequence. Offering. Rule 403 1. in any civil or criminal proceeding. In the Courtroom 1.Downloaded From OutlineDepot. C. Promising i) Rule 409 bars admission of offers and promises to pay medical expenses and actual payments of those expenses. iii) The rule precludes this evidence only when introduced against the person who. 3. 2. 3. or Similar Expenses i) “Similar Expenses” includes fees for all kinds of medical treatment and physical rehabilitation.com i) Rule 408 allows parties to use settlement evidence for the 1st type of impeachment (bias). evidence of the following is not. IX. Rule 403 operates as a final check on the fairness of admitting the evidence. Plea Discussions. 8. Medical. b) These are quasi-criminal proceedings. investigative or enforcement action conducted by a government agency. No other rule trumps Rule 408 to guarantee admission. X. and Related Statements a) Except as otherwise provided in this rule. to repair an auto. or similar expenses occasioned by an injury is not admissible to prove liability for the injury. admissible against the Δ who made the plea or was a participant in the please discussions. as a criminal Δ. or to compensate injured party for other types of economic or property damage. participated in the plea bargaining process.
R. or comparable state procedure re: either of the foregoing pleas. Prohibitions i) Rule 410: Inadmissibility of Pleas.Downloaded From OutlineDepot. specificity in “offers” vii) Evidence that 410 Does and Does Not Protect a) Plea Type: (1) Accepted Nolo Contendere (i) Plea Admissible? (a) No – 410(2) (ii) Statements during Bargaining Admissible? (a) No – 410(3) (iii) Statements during Plea-Related Court Admissible? (a) No – 410(3) (2) Withdrawn Guilty Plea (i) Plea Admissible? (a) No – 410(1) (ii) Statements during Bargaining Admissible? (a) No – 410(3) & (4) (iii) Statements during Plea-Related Court Admissible? (a) No – 410(3) (3) Accepted Guilty Plea (i) Plea Admissible? (a) Yes (ii) Statements during Bargaining Admissible? (a) Yes (iii) Statements during Plea-Related Court Admissible? (a) Yes (4) No Plea (i) Plea Admissible? (a) N/a (ii) Statements during Bargaining Admissible? (a) No – 410(4) (iii) Statements during Plea-Related Court Admissible? (a) N/a 3. and Related Statements a) Evidence of the following is not admissible: (1) A plea of guilty which was later withdrawn (2) A plea of nolo contendere (3) Any statement made in the course of any proceedings under Rule 11 of the Fed. or (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn ii) Protects guilty pleas that a Δ withdraws iii) Shields plea of nolo contendere or “no contest” iv) Protects statements made during a plea bargaining process if that process produced either a withdrawn guilty plea or a plea of nolo contendere a) All statements that the Δ made as part of the plea negotiation process or during the aborted court appearance are also inadmissible against that Δ v) Shields statements made during plea bargaining when no guilty plea results a) Limits its protection to plea discussions that occur with an attorney for the prosecuting authority b) Protects statements made during plea bargaining. Crim. Exceptions i) Rule 410: Inadmissibility of Pleas. Plea Discussions. and Related Statements a) Such a statement is admissible (1) In any proceeding wherein 11 . but only when the bargaining produces a withdrawn plea or no plea vi) Plea Discussions: Δ attorney present. P.com 2. Plea Discussions.
Plea discussions occurs if: a) The Δ displayed “an actual subjective expectation to negotiate a plea” and b) That expectation was “reasonable given the totality of the objective circumstances. 2. For What Purpose is the Evidence Offered? i) Rule 411 only precludes evidence of liability insurance if it is offered to prove fault. What is Liability Insurance? i) The rule only excludes evidence of liability insurance. ownership. In the Courtroom 1. Liability Insurance A. In the Courtroom 1. a) For this exception to apply. C. 2. Rule 403 1. 3. a) Under an indemnity agreement. disability ins. which admits guilt. courts often invoke Rule 403 to exclude similar evidence offered against the prosecution. B. may introduce some statements otherwise protected by the rule when necessary to prosecute a Δ for perjury or false statement. ownership. Δs may invoke Rule 403 when Rule 410 fails to exclude evidence offered against them.” 2. is still considered part of the plea negotiations if he has a reasonable expectation. or control. iii) If the Δ discusses the plea negotiations with another person. life ins. or control.Downloaded From OutlineDepot. and others fall outside the liability category. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose. 12 . to introduce statements made during plea bargaining even if the Δ does not take the stand at trial. 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. and bias or prejudice of a witness. Waiver i) Many waivers now allow the gov.” B. that person can be called to the witness to testify. a) A suspect who volunteers an immediate confession to the arresting police officer. the Δ must have made a statement “under oath. What are “Plea Discussions”? i) A plea discussion is one that occurs with an attorney for the prosecuting authority. Rule 411: Liability Insurance 1. iii) Courts are split over whether indemnity agreements qualify as liability insurance under Rule 411.com (i) Another statement made in the course of the same plea or plea discussions has been introduced and (ii) The statement ought in fairness be considered contemporaneously with it. R. or (2) in a criminal proceeding from perjury or false statement if (i) the statement was made by the Δ (ii) on the record and (iii) in the presence of counsel ii) The gov. one party agrees to reimburse another party for damages if a specified form of liability arises. is not engaged in plea discussions. or ii) Bias or prejudice of a witness. of Evidence does not apply to sentencing proceedings. ii) Letter from Δ sent to prosecutor. Rule 410 only bars plea bargaining evidence that is offered against a Δ. 2. and judges consider that evidence when calculating a sentence. such as i) Proof of agency. ii) Prosecutors frequently introduce statements from plea bargaining sessions to inform the court’s sentencing decision. Sentencing i) Fed. ii) Health ins. XI. ii) Permitted purposes: proof of agency. on the record and in the presence of counsel. ii) Majority jx use a two-tiered approach to analyze ambiguous situations.
Competence: Who Can Testify? 1. Rule 403 1. Remember. iii) Prohibits the judges from reporting evidence related to experiments they have conducted or visits they have made to a site related to the case. 2. by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so. Evidence of insurance can be prejudicial and its probative value is often slight.com iii) Any purpose other than proof of liability is permissible under Rule 411. Rule 603: Oath or Affirmation i) Before testifying. relating to opinion testimony by expert witnesses C. Personal Knowledge 1. State Law i) Rule 601: General Rule of Competency a) However. the judge may exclude that evidence under Rule 403. What About Jurors? i) Rule 606: Competency of Juror as Witness a) A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. XII. the opposing part shall be afforded an opportunity to object out of the presence of the jury. Experts and Personal Knowledge i) Rule 602: Lack of Personal Knowledge a) This rule is subject to the provisions of rule 703. consist of the witness’ own testimony. 4. ii) Rule 605 also prohibits the judge from offering commentary from the bench that amounts to testimony. Rule 604: Interpreters i) An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.Downloaded From OutlineDepot. every witness shall be required to declare that the witness will testify truthfully. Relate & Oath ii) Rule 602: Lack of Personal Knowledge a) A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter 2. Oaths and Affirmations 1. iv) Prohibition also applies to the judge’s law clerks and other employees. in civil actions and proceedings. 13 . Even when evidence is admissible under Rule 411. but need not. The Basic Rule i) Observe. The Basic Rule: Everyone is Competent i) Rule 601: General Rule of Competency a) Every person is competent to be a witness except as otherwise provided in these rules. with respect to an element of a claim or defense as to which State law supplies the rule of decision. b) If the juror is called so to testify. 3. B. 2. Putting a Witness on the Stand A. Can the Judge Testify? i) Rule 605: Competency of Judge as Witness a) The judge presiding at the trial may not testify in that trial as a witness b) No objection need be made in order to preserve the point. D. Interpreters 1. the competency of a witness shall be determined in accordance with State law. Establishing Personal Knowledge i) Rule 602: Lack of Personal Knowledge a) Evidence to prove personal knowledge may. 3. C.
Redirect examination must focus on matters raised during cross-examination. the judge will not allow the Δ’s lawyer to use leading questions as freely on cross-examination. and all parties are entitled to cross-examine witnesses called. 3. 3. An opponent may use redirect to rehabilitate that witness. Leading Questions on Cross i) Rule 611(c) a) Ordinarily leading questions should be permitted on cross-examination. Judges are more tolerant of leading questions on redirect examination than on direct. call witnesses. and it may make the order of its own motion. in the exercise of discretion. a) Cannot ask questions “beyond the scope” 2. Rule 615: Exclusion of Witnesses i) At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. Rule 614: Calling and interrogation of Witnesses by Court i) The court may. Judges rarely call their own witnesses. 2. and (3) Protect witnesses from harassment or undue embarrassment.com XIII. whether called by itself or by a party. iii) Objections to calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. ii) If the π calls the Δ for a witness. Redirect Examination 1. Direct Examination 1. ii) The court may interrogate witnesses. Beyond the Scope i) Rule 611(b) a) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. D. interrogation may be by leading questions. Rule 614 authorizes the judge to call her own witnesses and to interrogate witnesses called by parties. an adverse party. 2.Downloaded From OutlineDepot. ii) Questions related to impeachment are always fair game on cross-examination. 14 . Leading Questions i) Rule 611: Mode and Order of Interrogation and Presentation a) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony 2. on its own motion or at the suggestion of a party. Permissible Leading on Direct i) 4 contexts in which judges most often allow attorneys to lead witnesses on direct examination: a) To establish pedigree information b) To direct a witness’ attention to a relevant place and time c) To help a witness who is hesitant. C. or a witness identified with an adverse party. Examining Witnesses A. The court may. 3. Miscellaneous Issues 1. B. or has trouble recalling d) Hostile witnesses ii) Rule 611: Mode and Order of Interrogation and Presentation a) When a party calls a hostile witness. Cross-Examination differs from direct examination in 2 important ways i) Leading questions are allowed but ii) The cross-examiner may ask questions only about issues covered during the direct examination. iii) Other Rule 611 Objections a) 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 (2) Avoid needless consumption of time. permit inquiry into additional matters as if on direct examination. confused. Cross-Examination 1.
ii) An adverse party is entitled a) To have the writing produced at the hearing b) To inspect it c) To cross-examine the witness thereon. The adverse party may introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible. v) Except as otherwise provided in criminal proceedings by section 3500 of title 18. 2. the order shall be one striking the testimony or. 2. Rule 612: Writing Used to Refresh Memory i) If a witness uses a writing to refresh memory for the purpose of testifying. except that in criminal cases when the prosecution elects not to comply. and d) To introduce in evidence those portions which relate to the testimony of the witness.Downloaded From OutlineDepot.S. the atty should follow 4 steps: a) Establish the witness does not recall the answer to a question b) Describe the writing she wishes to use to refresh the witness’s recollection and ask if that writing would refresh the witness’s recollection c) Show the writing to the witness. U. excise any portions not so related. or b) An officer or employee of a party which is not a natural person designated as its representative by its attorney. the judge may allow the lawyer to lead the witness on direct examination. Intro & Policy 1. iii) Exceptions to the rule: a) Parties to the case b) Expert witnesses XIV. and ii) Seeing the writing will refresh her recollection B. Testifying from Original Memory 15 . Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. declaring a mistrial. and testify from her refreshed recollection. If a witness recalls the general outlines of an incident by it having trouble reciting details. i) Any document can be used. d) Before or during the process. Whatever kind of writing is used.C. or c) A person whose presence is shown by a party to be essential to the presentation of the party’s cause. 2. as long as the witness states that it will help her remember the necessary information.com ii) This rule does not authorize exclusion of: a) A party who is a natural person. In the Courtroom 1. or d) A person authorized by statute to be present. i) Rule 612 trumps other rules of evidence when an adverse party invokes it. the witness must first state that i) She does not remember the answer to the questions being asked. The witness will examine the writing and put it aside. if the court in its discretion determines that the interests of justice so require. Method of Refreshing Recollection i) In order to use a writing to refresh a witness’s recollection. C. iv) If a writing is not produced or delivered pursuant to order under this rule. either a) While testifying or b) Before testifying if the court in its discretion determines it is necessary in the interests of justice. iii) If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera. and order delivery of the remained to the party entitled thereto. Refreshing a Witness’ Memory A. The Rule 1. the court shall make any order justice requires. the rule gives the adverse party the right to introduce the writing for limited purpose of assessing the witnesses credibility. 3. Rule 612 allows an attorney to refresh a witness’s recollection with a document or other item. the atty must be sure to give the opposing counsel a copy of the writing.
ii) The writing does not have to be a writing at all. 2. Rule 607: Who May Impeach i) The credibility of a witness may be attacked by any party. hearsay. bad acts. 4. Show Bias i) Demonstrating a witness’s bias is essential to the truth-seeking function of a trial. What Type of Writing? i) Rule 612 does not limit the type of writing a witness may use to refresh recollection. courts have held that— unless the writing is admissible on other grounds—the jury may use the writing only to assess the witness’s credibility. confusion. 8. delay. then other parties may invoke Rule 612 for cross-examination. Confusion or Delay i) Rule 403 gives the trial judge discretion to exclude evidence based on prejudice. medical expenses. 3. it can be audiotapes. so the evidentiary rules make special exceptions to accommodate proof of bias. and unsupported opinion. Which witnesses? 1. 6. Clarify the Ambiguous Testimony i) Cross-examination is particularly useful to clarify the words used by a witness on direct examination. Collateral Matter – XVI. 7. Intro & Policy 1. competence. Introduce Expert Testimony About Evidence i) Expert testimony can aid several techniques. insurance. subsequent remedial measures. Using Prior Statements to Impeach Witnesses A. Claim Unfair Prejudice. XV. 10. opposing counsel usually does not challenge the witness. 16 . Attack the Witness’s Character for Truthfulness i) Trial attys sometimes try to discredit a witness by showing that the witness is a generally untruthful person. 5. including the party calling the witness.com i) If the witness refreshes memory from a credible source. Effect of Introducing the Writing i) If the adverse party does choose to admit the writing into evidence. Rebut the Evidence i) A party may introduce evidence that contradicts a witness’s testimony. or related grounds.Downloaded From OutlineDepot. 3. a) Allows any party who did not initiate the refreshment of a witness’s recollection to claim the rule’s protection. Show Impairment of Perception or Recollection i) A lawyer may try to show that an opponent’s witness perceived an event incorrectly or recalls it inaccurately. and the refreshed portions of testimony are brief. Demonstrate Inconsistencies i) Opposing counsel may try to undermine a witness’s testimony by showing that the testimony by showing that the testimony is internally inconsistent or contradicts earlier statements made by the witness. Adverse Parties i) If a party refreshes a witness’s recollection on direct examination. Impeaching Witnesses A. Extrinsic Evidence – i) any evidence other than testimony from the witness currently on the stand 2. 5. Complete the Story i) Sometimes additional info reduces or eliminates the negative effect of testimony. B. 9. person knowledge. A Toolbox of Ten Tactics 1. photographs and other media. Exclude the Evidence Through a Specialized Rule i) Potential grounds for exclusion include relevance. 4.
Prior Consistent Statements for Rehabilitation i) Prior consistent statements are most likely to assist the fact finder. Inconsistent Statements i) Judges usually allow parties to cross-examine witnesses only on their inconsistent statements. judges are more restrictive. On cross-examination. iii) Judges usually exclude extrinsic evidence of a prior inconsistent statement that relates solely to a collateral matter. 4. 6. or the interests of justice otherwise require… 3. Procedural Constraints on Extrinsic Evidence i) Rule 613(b) a) Extrinsic evidence of prior inconsistent statement of witness. delay. Disclosing the Prior Statement i) Rule 613(a): Prior Statements of Witnesses a) Examining witnesses concerning prior statement. Non-Extrinsic Evidence Extrinsic Evidence Non-Collateral Cross-Exam – Allowed. non-extrinsic evidence may be used to probe collateral and non-collateral matters. 2. when parties use them to rehabilitate a witness who has been discredited on cross-examination. 5. not on consistent ones. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless (1) The witness is afforded an opportunity to explain or deny the same (2) And the opposite part is afforded an opportunity to interrogate the witness thereon. 3. subject Prohibited under Rules 403 and Matter to some outer limits under 611. C. ii) If a party wants to introduce extrinsic evidence of a prior inconsistent evidence of a prior inconsistent statement. 17 . Allowed subjected to Rule 613 Matter Collateral Cross-Exam – Allowed. then the potential for prejudice. Judges use their discretion under Rules 403 and 611 to prohibit extrinsic evidence of a prior inconsistent statement on a purely collateral matter. In examining a witness concerning a prior statement made by the witness. The rules allow parties to present extrinsic evidence of prior inconsistent statements related to noncollateral matters. or confusion substantially outweighs the probative value of admitting extrinsic evidence of the previous statement. 2. warranting admission under Rules 402 and 403. i) Evidence of this nature causes delay and confusion that substantially outweighs its probative value (Rule 403) and disrupts the orderly presentation of evidence (Rule 611). (2) But on request the same shall be shown or disclosed to opposing counsel. (1) The statement need not be shown nor its contents disclosed to the witness at that time. whether written or not.Downloaded From OutlineDepot. When Is an Issue Collateral? i) If an inconsistency relates solely to a collateral issue. 4.com i) relevant to the case solely because it impeaches a witness 3. Rules 403 and 611 B. Substantive Constraints on Using Extrinsic Evidence i) Judges give parties considerable freedom to ask witnesses about prior inconsistent statements. Showing the Statement to the Witness i) Judges sometimes exercise their general authority under Rule 611 to require a crossexamining attorney to show the statement to the witness. The Rules 1. In the Courtroom 1.
and driving over the speed limit.” 4. For the purpose of attacking the character for truthfulness of a witness. XVIII. and Rule 611 allows the court to “exercise reasonable control over the mode of interrogating witnesses to protect witnesses from harassment or undue embarrassment.Downloaded From OutlineDepot. i) Character Evidence Generally. Opening Provision i) Rule 609: Impeachment by Evidence of Conviction of Crime a) General Rule. Rule 608: Evidence of Character and Conduct of Witness i) Specific instances of conduct. 2. except a) Character of a Witness. ii) Examples include using a false name. the jury may consider that conviction only to assess the witness’s character for truthfulness. for the purpose of attacking or supporting the witness’ character for truthfulness… may not be proved by extrinsic evidence. 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. Rule 404: Character Evidence Not Admissible to Prove Conduct. be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness B. Using Criminal Convictions to Impeach Witnesses A. an attorney must have a good faith belief that the incident occurred. The Rules 1. as provided in Rules 607. Good Faith Belief i) Before asking a witness about a specific incident suggesting untruthfulness. Judicial Discretion i) Rule 403 authorizes judges to exclude evidence when its unfair prejudice substantially outweighs its probative value. ii) Rule 609 applies only when a party uses a criminal conviction for a particular purpose: to suggest that a witness has an untruthful character. Evidence of the character of a witness. although immoral or illegal. a) A good faith belief is one that rests on some evidence. They may however. The Rule 1. Specific instances of the conduct of a witness. if probative of truthfulness or untruthfulness. even if the evidence would not be admissible in court. a) The cross-examiner must accept whatever answer the witness gives. Other Crimes. 2.com XVII. the jury should not use the conviction as evidence of guilt or liability. Probative of Truthfulness or Untruthfulness i) Many actions. 3 Rules for 3 Categories i) Felony Convictions/Any Witness Except an Accused a) Rule 609: 18 . Extrinsic Evidence i) Rule 608(b) permits attorneys to cross-examine witnesses about acts that demonstrate a character for untruthfulness. in the discretion of the court. 3. a) Some courts have allowed inquiry into drug trafficking as conduct establishing untruthfulness. and failing to file tax returns. a) If the witness is also a party in the case. sexual proclivities. Exceptions. 2. iii) When a party does rely on Rule 609 to introduce evidence of a prior conviction. lying on employment or loan application. drug use. Revealing Character on Cross-Examination A.” ii) Rule 608(b) permitting cross-examination on specific instances of a witness’s conduct only “in the discretion of the court. In the Courtroom 1. 608 & 609. iii) Some things that have been prohibited asking about murder. are not related to truthfulness.
When Prejudicial Effect… Is less than probative value Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Rule 403 Admits the evidence Admits the evidence Admits the evidence Excludes the evidence Rule 609(a)(1) Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence ii) iii) Crime of Dishonesty or False Statement/Any Witness a) Rule 609: (1) For the purpose of attacking the character for truthfulness of a witness (i) Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment. in the interests of justice. not any other types of prejudicial effect. not only when prejudicial effect substantially outweighs probative value. is not admissible unless the proponent gives 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. (i) 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 b) Prior felony convictions are admissible against a criminal Δ who takes the stand but only if the judge makes a distinctive finding that probative value outweighs prejudicial effect. if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted. (1) The judge retains the discretion under Rule 403 to exclude a conviction if a party persuades the judge that the conviction’s unfair prejudice will substantially its probative value. b) Prior felony convictions are generally admissible to impeach witnesses other than criminal Δs.Downloaded From OutlineDepot. (3) Places the burden on the prosecutor to demonstrate that probative value outweighs prejudicial effect so that evidence of a prior conviction should be admitted. unless the court determines. (1) 3 barriers to using convictions that are more than 10 years old: (i) The party seeking to use the conviction must give adverse party advance written notice 19 . (2) Excludes evidence whenever prejudicial effect equals or exceeds probative value. Felony Convictions/Criminal Accused a) Rule 609: (1) For the purpose of attacking the character for truthfulness of a witness. evidence of a conviction more than 10 years old. Time Limits i) Rule 609: a) 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. (1) Standard weighs only the prejudicial effect of the evidence on the accuse. 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 3. b) However. whichever is the later date. subject to Rule 403.com (1) For the purpose of attacking the character for truthfulness of a witness. that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. (i) Evidence that a witness other than an accused has been convicted of a crime shall be admitted.
Pendency of an Appeal i) Rule 609: a) The pendency of an appeal therefrom does not render evidence of a conviction admissible. b) The court may. that the probative value of the conviction substantially outweighs its prejudicial effect. 2. and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of 1 year. Special Balancing Test for Accused i) Rule 609 creates a special balancing test to determine when prior felony convictions are admissible to impeach a criminal Δ who takes the stand. Defining Felonies i) Felonies = crimes punishable by death or imprisonment in excess of 1 year.Downloaded From OutlineDepot. When Prejudicial Effect… Is substantially less than probative value Is somewhat less than probative value Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Rule 403 Admits the evidence Admits the evidence Admits the evidence Admits the evidence Excludes the evidence Rule 609(a)(1) [conviction less than 10 y/o] Admits the evidence Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence Rule 609(b) [conviction more than 10 y/o] Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence 4. 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 6. or other equivalent procedure based on a finding of the rehabilitation of the person convicted. unless they are part of a pattern of criminality c) Similarity between the prior crime and the charged one 20 . Annulments & Certificates of Rehabilitation i) Rule 609: a) Evidence of a conviction is not admissible if: (1) The conviction has been the subject of a pardon. B. or (2) The conviction has been the subject of a pardon. others relate to its prejudicial impact: a) Impeachment value of the former crime (1) A crime that relates to truth telling has more probative value than one that does not. or other equivalent procedure based on a finding of innocence 5. Pardons. ii) Witness does not need to receive such a sentence for impeachment to occur. annulment. In the Courtroom 1. Juvenile Adjudications i) Rule 609: a) Evidence of juvenile adjudications is generally not admissible under this rule.com (ii) The judge must find specific facts and circumstance supporting the convictions probative value (iii) The judge must determine in the interests of justice. annulment. certificate of rehabilitation. b) Time of the prior conviction and subsequent criminality (1) Convictions that occurred long ago have less probative value. Evidence of the pendency of an appeal is admissible. ii) 5 factors – some factors that affect the probative value of the prior conviction.
Opinion or Reputation Evidence of Untruthful Character A.com (1) When the prior crime is similar to the charged one. iii) Parties are allowed to cross-examine fact witnesses about incidents that might reveal untruthfulness. Crimes of Dishonesty and False Statement i) Rule 609(a)(2) admits prior conviction for crimes of dishonesty or false statement. 2. e) Centrality of credibility (1) If guilt turns on a swearing match b/w the Δ and the prosecution’s witnesses. Rule 608: Evidence of Character and Conduct of Witness i) Opinion and reputation evidence of character. but subject to these limitations: a) The evidence may refer only to character for truthfulness or untruthfulness. ii) 10 year limit to the date of conviction or the release of the witness from the confinement imposed by that conviction whichever is later. A party may introduce evidence of a witness’s truthful character only after that character has been attacked. ii) Dishonesty or false statement must be an element of the crime. C. Rule 608 only allows general opinion or reputation evidence of character. Opinion or Reputation Evidence i) When a character witness offers an opinion about a fact witness’s character for truthfulness. even if they were misdemeanors and without any consideration of undue prejudice. B. XIX. In the Courtroom 1. the prosecutor’s interest in impeaching the Δ is higher and the jury may have greater need of that testimony. the attorney will first lay a foundation by showing that the character witness knows the fact witness well enough to have formed an opinion about the fact witness’s truthful or untruthful nature. and b) 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. 3 Limits: i) Evidence must be in the form of opinion or reputation only ii) Evidence must relate to the witness’s character for truthfulness or untruthfulness iii) Testimony about a witness’s character for truthfulness can only be elicited after his character has been attacked. Intro & Policy 1. b/c the jury may use the prior conviction not just to judge credibility but to reason that the Δ has a tendency to commit this type of crime d) Importance of the Δs testimony (1) The risk that a Δ will forego testifying should always count as an element prejudice. Time Limits i) Presumption against allowing impeachment with crimes that are more than 10 years old. 3. 5. and they may present character witnesses who offer opinion or reputation evidence about the fact witness’s truthfulness. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation. but they may not elicit specific details from the character witnesses on direct examination. that testimony may be particularly important to help the Δ present his case.Downloaded From OutlineDepot. Limiting Instructions i) Courts admit evidence of prior convictions under Rule 609 for a limited purpose: to suggest that a witness has an untruthful character. not testimony giving specific instances of conduct related to a witness’s truthfulness or deceit 2. Character for Truthfulness and Untruthfulness 21 . The Rule 1. 2. In some case. 4. ii) Rule does not allow parties to ask character witnesses questions on direct examination that focus on specific examples of a fact witness’s untruthfulness. the likelihood of prejudice is particularly high.
i) Although the party who calls a character witness may not ask the witness questions about specific incidents on direct examination. Rule 608(b): Evidence of Character and Conduct of Witness i) Specific instances of conduct. In the Courtroom 1. 5. 4. The rule allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness’s behavior. Specific instances of the conduct of a witness. 4. Applicable Only to Witnesses i) Rule 608(a) only admits evidence related to a witness’s character. 3. Intro & Policy 1. the party may not offer extrinsic evidence. 2. The Rule 1. offered by a rebuttal character witness. may not be provide by extrinsic evidence. ii) If an individual does not testify in court.Downloaded From OutlineDepot. parties cannot rely upon Rule 608 to attack the person’s credibility. a) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. but they may not offer extrinsic evidence of that conduct. a party may introduce evidence to show the witness’s truthful character. When has a Character been Attacked? i) Rule 608(a)(2) allows parties to bolster a fact witness’s credibility with evidence of a truthful character. but only after the witness’s character for truthfulness has been attacked by opinion or reputation evidence or otherwise. parties must limit their inquiry to the witness’s character for truthfulness or untruthfulness. for the purpose of attacking or supporting the witness’ character for truthfulness. if the probative of truthfulness or untruthfulness. but opposing counsel may ask the character witness those specifics on cross-examination. an opposing party may ask about specifics on crossexamination. other than conviction of crime as provided in Rule 609. They may. b) Just as when a party cross-examines a fact witness on specifics. B. in the discretion of the court. Cross-Examining the Character Witness A. An attorney may not ask a character witness about specifics of a fact witness’s conduct on direct examination. A character witness offered under Rule 608(a). also elicited from the fact witness on redirect examination iii) Opinion or reputation evidence suggesting a character for truthfulness. XX. the crossexaminer must accept the character witness’s denial. Once a fact witness’s character for truthfulness has been attacked.com i) When examining a character witness under Rule 608(a). 22 . 3. be inquired into on cross-examination of the witness. Cross-Examination of the Character Witness i) Extrinsic Evidence a) Parties may cross-examine character witnesses about a fact witness’s specific conduct. The evidence may take the following forms: i) Specific incidents suggesting a character for truthfulness. ii) Rule 608(a)(2) allows a party to call a positive character witness only when a fact witness’s character for truthfulness has been attacked. Limited Purpose i) Evidence of untruthful character admitted under Rule 608(a) is admissible only to assess the credibility of the witness’s courtroom testimony. may not give specific examples of the fact witness’s untruthful behavior. elicited from the fact witness on redirect examination ii) Any extenuating circumstances related to the convictions. such as docs or testimony from other witnesses that shows specific instances of a fact witness’s untruthfulness. ii) A cross-examiner cannot ask these questions on cross-examination unless she has a good faith basis for believing that the specific acts occurred. 2. C. however. Apart from introducing evidence of criminal convictions.
Downloaded From OutlineDepot.com
Religious Beliefs and Impeachment A. The Rule 1. Rule 610: Religious Beliefs or Opinions i) Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced 2. In the Courtroom i) Rule 610 bars evidence of religious beliefs only when offered to attack or buttress a witness’s credibility. ii) The rule does not preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages or motive. Rule of Completeness A. The Rule 1. Rule 106: Remainder of or Related Writings or Recorded Statements i) 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. 2. Rule 106 allows a party to introduce qualifying portions of a writing or recorded statement as soon as the opponent offers the first portion. 3. Applies only to writings and recorded statements, it does not apply to other forms of evidence, such as oral conversations, photos, and physical objects. 4. May use the rule to introduce whole writings or recordings when necessary to understand another document offered by the opponent. 5. Uses a fairness principle: it admits portions of writings or recorded statements that “ought in fairness to be considered contemporaneously with” those offered by an opponent. B. In the Courtroom 1. Oral Statements i) Courts sometimes invoke other rules to create a similar completeness principle for other evidence ii) Some courts use Rue 403 to admit missing portions of an oral statement when necessary to avoid unfair prejudice or confusion. a) Other courts use Rule 611(a) which gives the trial judge power to control the presentation of evidence. 2. Timing or Admissibility i) When Rule 106 applies, allows a party to introduce portions of a writing or recorded statement as soon as the opponent offers the initial piece of evidence.
XXIII. Character Evidence and the Rules A. Character, Reputation, & Actions
1. Character traits are internal; they reside within a person 2. Reputation is external; it reflects what other people think about an individual 3. Since reputation often corresponds to character, a party can use that evidence to argue that the witness has an untruthful nature. i) In the courtroom, reputation and specific acts often appear as circumstantial evidence of character.
B. Four Categories of “Character Evidence”
1. Proof of a Witness’s Propensity to Lie or Tell the Truth i) Under some circumstance, Rules 608 and 609 allow parties to introduce evidence related to a witness’s character for untruthfulness a) Based on this evidence, the party asks the jury to make this chain of inferences: (1) This witness has an untruthful character (2) A person with an untruthful character has a tendency to lie (3) Therefore, this witness lied on the stand.
Downloaded From OutlineDepot.com ii) Parties usually use evidence of a dishonest reputation or a criminal conviction to suggest an untruthful character, so the chain of inferences has 4 links: a) This witness has a reputation for untruthfulness. Alternatively, this person has committed a crime that involves dishonesty. b) Someone with a reputation for untruthfulness (or who has committed a crime of dishonesty) probably has an untruthful character. c) A person with an untruthful character has a tendency to lie. d) Therefore, this witness lied on the stand. iii) Evidence depends on the notion of propensity. a) Propensity reasoning from character evidence consists of 2 steps: (1) An assumption that someone with a particular character tends to act in a particular way, and (2) A conclusion that the person acted consistently with the that tendency on a particular occasion. 2. Proof of Conduct by Propensity i) Depends on the concept of propensity ii) Rule 404(a) bars most attempts to prove conduct by propensity iii) The use of evidence to suggest a witness’s character for truthfulness or untruthfulness is itself an exception to the general rule against use of evidence to show propensity. 3. Proof of Character or Reputation as Elements i) A party may offer evidence of character or reputation for reasons that do not depend on an inference of propensity. ii) Legal claims or defenses that require proof of character or reputation to establish an element are rare, but do exist. iii) When parties offer evidence of character or reputation to establish an element, Rule 405 allows that evidence. 4. Proof of Other Acts for Non-Propensity Purposes i) Evidence of a person’s actions, can establish facts other than character and can support inferences other than one based on propensity. ii) When parties offer evidence of an action for a purpose other than to prove character and a propensity to act in a particular way, Rule 404(b) often allows that evidence.
XXIV. Evidence to Prove Character as an Element A. Policy
1. When character is an element of a crime, claim, or defense, then all evidence related to that character is central to the case. B. The Rule 1. Rule 404(a) only prohibits character evidence when it is used to suggest that a person acted consistently with their character one a particular occasion. 2. Rule 405 outlines the permissible way to prove character as an elements of a crime, claim, or defense. 3. Rule 405: Methods of Proving Character i) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. a) On cross-examination, inquiry is allowable into relevant specific instances of conduct. ii) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. 4. Rule 405(b) explicitly confirms that specific instances of conduct are admissible to prove character as an element of a crime, claim or defense. 5. Rule 405 makes clear that parties may prove character through specific actions, as well as through more general reputation or opinion testimony, when character is a disputed element of the case. C. In the Courtroom 1. Foundation for Opinion or Reputation Testimony
Downloaded From OutlineDepot.com i) The foundation required for opinion or reputation testimony offered under Rule 405(a) the examining attorney must 1st establish that the witness knows the person whose character is at issue or knows that person’s reputation. a) After establishing that knowledge, the witness will offer a brief opinion or reputation report about the person’s character. Good Faith Belief for Cross-Examination on Specifics i) If a party uses opinion or reputation testimony to show a character trait, Rule 405(a) allows the opponent to cross-examine the witness about specific incidents related to that character trait. a) The cross-examiner must have a good faith belief that the incidents actually occurred. Proof of Specific Incidents i) When character is at issue in the case, the parties need not limit themselves to general statements of opinion or reputation. a) Nor are they limited to probing specific acts on cross-examination; they can introduce the latter evidence in their case-in-chief through direct examination of their own witnesses. Relationship to Rule 403 and Other Rules i) Even though Rules 404 and 405 do not bar character evidence used to prove an element, another rule may still prohibit the proffered piece of evidence. ii) Rule 403 limits a party’s ability to offer character evidence. iii) Even when character is a centrally disputed element of the case, a judge may exclude some types of character evidence b/c the danger of confusion, delay, or unfair prejudice substantially outweighs any probative value. What is “Character”? i) Character seems to include almost any personality trait, including honesty, mendacity, cautiousness, recklessness, aggressiveness, and passivity or peaceableness. When is Character an “Element”? i) Most difficult issue is determining whether character truly is an element of the controversy. a) 4 Categories of cases account for almost every lawsuit in which character is an element: (1) Defamation (2) Child custody (3) Criminal cases re: Entrapment (4) Negligent entrustment claims
Using Character Evidence to Prove Propensity A. Intro & Policy 1. Character evidence offered to show propensity does not prove an elements of the case directly i) The evidence suggests that, b/c a person has a tendency to act in a particular way, the person was more likely to have committed a particular act on a specific occasion. 2. Allowing parties to introduce character evidence and make propensity arguments based on that evidence would run a serious risk of compromising this fundamental principle of justice. 3. Rule 404(a) broadly prohibits the use of character evidence when offered to show propensity. i) The basic principle of Rule 404(a) declares that parties may not use character evidence to prove that, b/c a person had a propensity to act in a certain way, the person was more likely to have acted in that way on a particular occasion. B. The Rule 1. Rule 404(a): Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes i) 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. 2. If the evidence is being offered to prove “action in conformity with [the character trait] on a particular action,” it is being offered as propensity evidence and will almost always be barred.
C. In the Courtroom
1. Good Character and Bad
Character Evidence Admissible to Prove Propensity in Criminal Trials – Rule 404(a) Type of Character Evidence Pertinent Trait of the Accused Trait of Peacefulness of Alleged Victim When May the Accused Offer this Evidence Any time When May the Prosecution Offer this Evidence? To rebut character evidence of the same trait offered by the accuse. ii) Character of alleged victim. 2. 3.Downloaded From OutlineDepot.com i) Rule 404(a) bars evidence of both bad and good character if that evidence is offered to prove that a person acted consistently with their character on a particular occasion. N/a. The Rule 1. B. Any Person i) Rule 404(a) bars the use of character evidence to prove the propensity of any person to act in a particular way. Rule 404: Character Evidence Not Admissible to Prove Conduct. XXVI. or b) By the prosecution to rebut the same. 4 key points about provisions to rule: i) Exceptions to the no-propensity rule apply only in criminal cases ii) Exceptions allow only proof of “pertinent” character traits. iii) Subsections of Rule 404(a) allow proof about both the Δ’s character and the alleged victim’s character iv) Subsections distinguish between when the Δ may introduce these types of evidence and when the prosecutor may do so. In a criminal case. Other Crimes i) Character evidence generally. would help defend his innocence. In a criminal case. 2 exceptions to the “no propensity” rule apply only to criminal prosecutions. If a criminal Δ believes that proof of his good character. evidence of the same trait of character of the accused offered by the prosecution. Δ can testify about his own character 3. a) Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused. unless barred by Rule 412 (rape shield) Other Pertinent Trait of Alleged Victim 26 . or b) By the prosecution to rebut the same. and subject to the limitations imposed by Rule 412. OR to match character evidence that the accused offers about the alleged victim Homicide: To rebut any evidence that alleged victim was 1st aggressor Other Cases: To rebut character evidence that the victim was not peaceful Only to rebut evidence of the same trait offered by the accused. then the mercy rule weighs in favor of the Δ presenting the evidence. evidence of a pertinent trait of character offered a) By an accused. accused would not introduce this evidence Any time. Character Evidence to Show Propensity in Criminal Prosecutions A. a) Prohibition applies even to people who never appear in the courtroom. or c) Evidence of a character trait of peacefulness of the alleged victim by the prosecution in a homicide case to rebut evidence that the alleged victim was the 1st aggressor. 2. Exceptions. or of an alleged victim’s bad one. or c) If evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2). Intro & Policy 1. 2.
or c) Δs aversion to risk and gambling in a gambling prosecution.com 4. In the Courtroom 1. the prosecution can introduce character evidence to show propensity only after the Δ has done so ii) Rule 404(a)(2) loosens this restrictions slightly in homicide prosecutions XXVII. Intro & Policy 1. Character Evidence Admissible to Prove Propensity in Criminal Trials – How the Prosecutor Case Respond If the accused… Introduces evidence of his on good character… Introduces evidence of the victim’s bad character… Introduces evidence that the victim in a homicide was the 1st aggressor… Then the prosecutor can: Introduce evidence of the Δs bad character for the same character trait Introduce evidence of the victim’s good character for the same character trait AND evidence of the Δs bad character for the same character trait. the prosecutor may rebut that evidence by showing that the victim lacked that trait or held the opposite one. battery. a) Prosecutor may also introduce evidence that the Δ held the trait that the Δ attributes to the victim. Proof of a Witness’s Propensity to Lie or Tell the Truth i) Parties can attempt to show a witness’s truthful or untruthful nature in 3 different ways: a) 608(b) – allows parties to cross-examine witnesses about conduct that suggests a truthful or untruthful character. or other violent acts b) Δs honest character in a prosecution for fraud. Pertinence i) Character evidence admitted must be “pertinent” to the crime or defense. ii) If the Δ introduces character evidence about the alleged victim. (1) The questioner must accept the witness’s answer (2) The cross-examiner cannot introduce extrinsic evidence proving the conduct occurred. Introduce evidence of the victim’s peaceful character. the rape shield law 5. the prosecutor may rebut that evidence with proof that the Δ lacks the trait or holds and opposite one. the government may response to any evidence that the deceased attacked 1st. homicide. i) If the Δ offers character evidence about herself. ii) Examples of pertinent character traits include: a) Δs peaceful character in a prosecution charging assault. the prosecutor may rebut that evidence with proof that the Δ lacks that trait or holds an opposite one. iii) In a homicide case the prosecutor may offer evidence that the deceased victim was a peaceful person in response to any evidence that the deceased was the 1st aggressor. Accused has considerable freedom to introduce character evidence about herself or the alleged victim i) The only limits on Δs ability to introduce character evidence are a) The evidence must relate to a “pertinent” character trait. it must offer evidence on traits that match those raised by the Δ 3.Downloaded From OutlineDepot. 6. a) Prosecutor does not have to wait for the accused to introduce character evidence. C. Matching Traits i) When the prosecution introduce character evidence under the exceptions in Rule 404(a). Methods of Proving Propensity in Criminal Cases A. Homicide Cases i) In most trials. iii) Many courts say that the pertinent standard is the same as Rule 401’s definition of relevance 2. and b) The evidence must comply with Rule 412. 27 . The prosecutor may introduce character evidence about herself.
2. 2. Rule 405: Methods of Proving Character i) Reputation or Opinion. The Rule 1. 2. Rule 405 outlines the methods of proving character traits at trial. C. Extrinsic Evidence i) A party who cross-examines a character witness about specific conduct under Rule 405(a) must accept the witness’s response. 28 . he can forego presenting character witnesses. ii) Courts prevents parties from staying too far from the main controversy by disputing the existence of prior acts. 4. Proof of Character or Reputation as Elements i) Rule 405 allows parties to present both opinion/reputation testimony and extrinsic evidence of specific instances of conduct related to character ii) The opposing party may also ask about specific instances of conduct during cross-exam iii) Prosecutor cannot introduce evidence of the ∆’s prior criminal convictions unless the ∆ took the stand as a witness. a) Cross-examiner cannot introduce extrinsic evidence. It allows proof of specific acts to show specific acts to show character. proof may be made by testimony as to reputation or by testimony in the form of an opinion. B. the opposing party may decimate that witness by asking questions related to specific bad acts. the judge will attempt to explain distinction to jurors that the act itself is not relevant to the case. a) ∆s providing evidence of their good character risk devastating cross-exams in which the prosecution asks the character witness about specific instances of misconduct. On cross-exam. In the Courtroom 1.com b) 608(a) – allows parties to offer reputation or opinion testimony about a witness’s truthful or untruthful character. 5.Downloaded From OutlineDepot. Laying a Foundation i) An atty examining a character witness must lay a foundation showing that the witness has sufficient knowledge to offer an opinion about character or reputation. Cross-Examination on Specific Acts i) Parties in criminal cases run a serious risk if they call a character witness to testify about a ∆s or victim’s good character. 6. the judge might allow the affected party to introduce extrinsic evidence disproving the incident. In all cases in which evidence of character or a trait of character of a person is admissible. only the fact of the witness’s knowledge is relevant. Limiting Instructions i) When parties cross-examine character witnesses. ii) On cross-exam. (1) If a ∆ does not want to open the door to cross-exam on particular instances of misconduct. inquiry is allowable into relevant specific instances of conduct. Good Faith Belief i) A cross-examiner cannot ask a character witness about speculative or imaginary acts a) The atty must have a good faith belief that the incidents occurred. when a mistaken inference of bad behavior would be highly prejudicial. but only when character is an element. Relevant Acts i) Although 405 allows attys to cross-examine character witnesses about specific acts. the examiners may ask only about acts that are relevant to the character trait described by the witness. but the opponent may inquire about them on cross-exam. iii) Under unusual circumstances. (1) The party offering the testimony cannot ask the character witness to cite specific examples of conduct supporting her opinion. a) Limit reflects 611(b)’s restriction of cross-exam to subjects raise on direct exam. 3. c) 609 – allows parties to introduce extrinsic evidence of some prior criminal convictions to suggest a witness’s character for untruthfulness. (2) Neither side may offer any extrinsic evidence of conduct asked about on cross-exam. 3.
C.com 7. intent. Rule 409 bars evidence of an offer to pay medical expenses if a party presents that evidence to show liability. b) Assuming that the evidence shows a prior act that is bad or immoral. which in turn is used to show propensity. to prove identity. intent. Evidence of other acts may be admissible for other purposes. Evidence of conduct related to character may be admissible to prove motive. 2. of the general nature of any such evidence it intends to introduce at trial. preparation. the jury may develop a negative view of the person. or Acts A. and other facts in Rule 404(b). Rebuttal Witnesses i) Parties in criminal case may present rebuttal character witnesses. or acts is not admissible to prove the character of a person in order to show action in conformity therewith.Downloaded From OutlineDepot. The Rule 1. Requires prosecution to provide reasonable notice in criminal trials of its intent to introduce evidence of prior crimes or other acts in the manner sanction by the rule 6. or other negative qualities substantially outweighs its probative value. provided that a) upon request by the accused. i) If a party can find any use of character evidence other than one that relies upon propensity reasoning. ii) It may. Other Crimes i) Other crimes. Other Crimes. identity. she has a chance of admitting the evidence. 3. the prosecution in a criminal case shall provide reasonable notice in advance of trial. wrongs. however. or acts. Rule 404(b): Character Evidence Not Admissible to Prove Conduct. potential for confusion. motive. 2. ii) Judges tend to construe the “other purposes” in Rule 404(b) rather broadly. wrongs. preparation. Wrongs. Applies to criminal and civil 5. In the Courtroom 1. B. not about specific act. Evidence of other crime. but she cannot prove these specific acts with extrinsic evidence c) The cross-examiner is stuck with the witness’s answer. opportunity. Rule 404(a) – a party may introduce “character evidence” for any purpose other than to prove that a person acted consistently with their character on a particular occasion. such as proof of motive. Character evidence is not admissible to prove that a person act “in conformity” with their character. knowledge. Intro i) The rule allows parties to introduce evidence that delivers 2 separate blows a) The evidence accomplishes its stated purpose. or a similar fact. 3. 4. opportunity. i) A party may not evade this prohibition by introducing evidence of specific acts that prove character. or during trial if the court excuses pretrial notice on good cause shown. Identity 29 . Intro & Policy 1. i) A judge may exclude evidence under 403 if it’s unfair prejudice. b) The opponent may ask about specific acts on cross-exam to test the witness’s knowledge. XXVIII. ii) A rebuttal character witness is treated exactly the same as any other character witness. Exceptions. or absence or mistake or accident. Plan i) Another prior act that is to show a common plan or scheme 4. intent. Motive i) A prosecutor sometimes argues that a previous crime or other bad act is admissible b/c it motivated the charged crime. a) The party calling the witness can ask only about opinion or reputation. 2. a) The character witnesses testify that the ∆ or victim has a character trait contrary to one present by another character witness. plan. be admissible for other purposes.
ii) The court’s current position with respect to the admissibility of prior acts to show intent. or acts may also be admissible to prove that a ∆ possessed the intent necessary to commit a crime. such as access to a protected place or to special tools. and if the ∆ has engaged in other acts incorporating that feature. ii) Unless the timing of the actions affects their relevance. 6. ii) If a charged crime has an unusual feature. or acts. both prior and subsequent acts are admissible under 404(b) Civil Cases i) The majority of cases arising under404 are criminal. wrongs. ii) The use of prior acts to prove intent. intent. a) Prosecutors often city “knowledge” as a purpose for introducing evidence of other crimes or bad acts when knowledge of a particular fact is an element of the crime. Opportunity i) Commission of a crime sometimes requires a particular opportunity. the evidence is not barred by Rule 404. (1) Evidence of another crime sometimes demonstrates that the ∆ possessed the knowledge. rather than mere possession of the drug. then these common characteristics tend to show the ∆s identity as the perpetrator of the charged crime. Knowledge i) As long as the other act evidence proves a relevant fact w/o using the propensity inference. the evidence is admissible regardless of what it is called. Any Other Non-Propensity Purpose i) “Preparation” overlaps with plan. 8. ii) The “other occasion” might consist of a prior crime or bade act.Downloaded From OutlineDepot. Intent i) Evidence of other crimes. 7. and Acts i) Most of the “other acts” offered as evidence as evidence under 404(b) occur before the charged crime. knowledge. a) As long as the litigant can come up with a purpose that is relevant to the case and avoids the propensity inference. while “absence of mistake” and “absence of accident” both overlap with intent. despite the presence of propensity inference. motive. Subsequent Crimes. iv) The “identity” prong of 404(b) works only if 2 conditions are met: a) Identity must be at issue. etc) and 5. but the rule applies to civil and criminal actions. and b) There must be strong similarities b/w the charged and other crimes. a) They are admissible to prove any relevant fact other than one that requires propensity reasoning Rule 403 i) Evidence that litigants offer under 404(b) is relevant for at least 2 purposes: a) 1 permissible purpose (knowledge. and knowledge. 12. 11. Wrongs. 10. wrongs. in civil and criminal cases: a) Judges rather freely admit this type of evidence seems to rely upon a forbidden propensity inference. a) But as long as the evidence establishes a needed opportunity.com i) Signature elements of a crime may allow a prosecutor to prove identity by introducing evidence of the ∆s other crimes or bad acts. motive. iii) To prove a ∆s intent to distribute illegal narcotics. it avoids the propensity inference forbidden by the latter rule. leading to an objection that the evidence violates 404(a). 30 . prosecutors frequently rely upon evidence that the ∆ sold narcotics on previous occasions. and opportunity. ii) The rule offers a non-exclusive list of permissible purposes for evidence of other crimes. Good Acts i) 404 applies to bad and good acts ii) Litigants sometimes refer to evidence of good accts as a “reverse 404(b)” use/ iii) 404 treats evidence of good and bad acts identically. iii) Determining whether the features of one crime are similar enough to those of another to constitute proof of identity requires judges to scrutinize the facts closely. is particularly well established in drug cases. 9.
Allows admission of habit evidence whether corroborated or not and regardless of the presence of an eyewitnesses i) A person can testify about her own habit even if no one else has ever seen her act in that way. Habit and routine practice are not defined. The rules try to preclude evidence of sexual reputation and prior sexual acts when that evidence aims primarily at tarnishing the alleged victim’s character. repeated responses to a particular situation or stimulus. 2. General Prohibition i) Rule 412: Sex Offense Case a) The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 31 . then a court will accept that practice as evidence that the organization acted that way on a particular occasion. XXIX. B. Not Just Admissible. 2. B. C. XXX. Rule 406: Habit. ii) Habit may be all that is needed to prove beyond a reasonable double that a person acted a certain way on a certain occasion. Routine Practice i) Evidence of the habit of a person or of the routine practice of an organization. Habit A. Rules allow Δs to offer exonerating evidence when used for a proper purpose. Habit evidence tends to be morally neutral. Limiting Instructions i) When a judge admits evidence under 404(b).Downloaded From OutlineDepot. To distinguish habit from propensity. 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. Routine Practice of an Organization i) Routine practice is the organizational equivalent of personal habit. focus on 3 factors: i) Specificity of the conduct ii) Distinctiveness of the situation producing the conduct iii) Regularity of the conduct 6. Intro & Policy 1. The Rule 1. Intro & Policy 1. Very specific conduct that arises regularly in an identifiable context is most likely to constitute habit. Habit refers to specific. Rape Shield Law A. 4. whether corroborated or not and regardless of the presence of eyewitnesses. 2. the trial judge will turn to 403. i) Means that an individual who is placed in a particular situation will respond over and over again with the same specific behavior. he or she gives a limiting instruction to the jury. ii) The existence of habit is a question of credibility. 13. Courts allow attys to prove habit through opinion testimony and specific instances of conduct. 3.com b) 1 inadmissible purpose (propensity) ii) In deciding whether the unfair prejudice of the propensity inference substantially outweighs the probative value of the permissible purpose. ii) If a litigant can show that an organization always (or frequently) acts a certain way under designated circumstances. 2. 5. Habit evidence is admissible in that this evidence has a higher probative value than propensity evidence. But Possibly Sufficient i) Fact finders may accept uncorroborated habit evidence as conclusive even when the disputed actions are not as routine as lab testing or regular machine maintenance. 4. 3. The Rule 1. Rule 406 allows use of other acts to prove an individual’s habit or an organization’s routine practice. In the Courtroom 1.
d) Evidence of sexual acts or sexual predisposition faces a reverse 403 test in civil cases: (1) The evidence is admissible only if its probative value substantially outweighs the unfair prejudice to any party. injury or other physical evidence (ii) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct (a) Offered by the accused to prove consent or (b) By the prosecution. or any other relevant fact. evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger (i) Of harm to any victim and (ii) Of unfair prejudice to any party (2) Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim. allowing introduction of an alleged victim’s sexual acts or reputation under these circumstances: b) The Rule 412: Sex Offense Cases – Exceptions (1) In a civil case. 32 .com (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior (2) Evidence offered to prove any alleged victim’s sexual predisposition. d) Allows the prosecutor to offer evidence of prior sexual encounters b/w the Δ and complainant for any purpose. e) Allows evidence of sexual acts or reputation in criminal cases if excluding them would violate the constitutional rights of the Δ. e) Court weighs the danger to the alleged victim. if otherwise admissible under these rules: (i) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the course of semen. c) Cannot offer evidence of an alleged victim’s sexual acts or reputation to prove propensity. ii) The rule encompasses both civil and criminal proceedings. ii) Civil Cases a) Single exception for civil cases. intent. (1) The Δ may offer this kind of evidence for just 1 purpose. whether or not she is a party to the litigation. (1) The prosecutor can offer evidence of other non-consensual encounters in order to show Δs motive. but the prosecutor may offer this evidence for any purpose. iii) The rule applies only to trial “involving alleged sexual misconduct” iv) Bars both types of evidence that rape Δs previously offered to show propensity: it prohibits evidence both of specific acts (“other sexual behavior”) and of reputation or general character (“sexual predisposition”) v) Broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which a litigant offers that evidence.Downloaded From OutlineDepot. In a criminal case. to prove consent. The Exceptions i) Criminal Cases a) Rule 412: Sex Offense Cases (1) Exceptions. and (iii) evidence the exclusion of which would violate the constitutional rights of the Δ b) Allows proof of a complainant’s prior sexual conduct when that evidence suggests that someone other than the accused was responsible for semen or other physical evidence. the following evidence is admissible. c) Admits evidence of prior sexual encounters b/w the complainant and Δ. 2. (1) The judge is to weigh the harm to any victim as well as the unfair prejudice to any party. identity.
or other physical evidence. ii) 412 applies to civil. Civil Cases i) When civil π complains about sexual assault. iv) 412 applies to sexual harassment suits even when the π claims no sexual assault or other physical contact. The “Catchall” Exception i) Criminal ∆s most often invoke the catchall exception to show that the alleged victim has made prior false claims of sexual assault.Downloaded From OutlineDepot. a) Sexual behavior includes any kind of intimate contact b/w the complainant and the ∆ ii) The exception even covers statements that the complaint made about the ∆. 2. b) The court must hold a sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible. iv) Most courts reject evidence of the alleged victim’s promiscuous reputation to prove that the ∆ reasonably believed that she consented to the sexual contact. 4. What is “Sexual Behavior” Under 412(b)(1)(B)? i) The 2nd exception for criminal cases allows ∆ to admit evidence of specific instances of sexual behavior b/w the complainant and the ∆ to prove consent. and the alleged victim 14 days before trial. injury. ii) Defense attorneys also attempt to use the catchall exception by arguing that the complainant manufactured a rape claim to protect an existing intimate relationship. opposing counsel. 3. ∆s may try to offer evidence of the πs sexual history and reputation for purposes similar to those in criminal cases. iii) Courts tend to stretch the catchall provision to protect the ∆s rights. 3. or injury (3) Evidence of a pattern of prior sexual conduct by the complainant (4) Evidence of bias or motive to fabricate the sexual assault (5) Evidence offered to prove that the accused had a reasonable but mistaken belief in the complainant’s consent (6) Evidence of prior false accusations of sexual assault by the complainant (7) Evidence of prior prostitution. 5. C. Gender and Sexual Orientation i) 412 applies regardless of the alleged victim’s gender or sexual orientation.com f) Reputation evidence is admissible in civil cases involving alleged sexual misconduct only if the alleged victim has opened the door by presenting evidence of her own reputation. State Rules i) Broad Prohibition with Specific Exceptions a) Most states have adopted rape shield laws that follow the federal pattern of generally prohibiting evidence of prior sexual conduct or sexual reputation. but gives judges somewhat greater discretion to admit the contested evidence. 33 . iii) 412’s exception for civil cases allows the judge to admit evidence if its probative value substantially outweighs both any unfair prejudice to the parties and harm to the alleged victim. pregnancy. then listing specific instances in which evidence can be admitted. Physical Evidence i) Allows ∆ to introduce evidence of victim’s sexual acts when relevant to show that another person was the source of semen. a) Reverse 403 standard highlights the low probative value of most evidence related to a πs sexual conduct in sexual harassment cases. In the Courtroom 1. ii) Barring Evidence Offered for a Specific Purpose a) Several states’ laws use more traditional structure for evidentiary rules: (1) They bar evidence of sexual reputation or conduct only if it is offered for a specific purpose. Procedure i) 2 step procedure for determining the admissibility of any evidence of an alleged victim’s sexual activity or reputation: a) A party intending to offer this evidence must give notice to the court. b) The exceptions vary from state to state but include provisions such as: (1) Evidence of prior sexual conduct b/w the complainant and the accused (2) Evidence of an alternative source of semen. 6.
courts seem more reluctant to exclude the evidence under 403. Rule 403 i) 3 Factors that courts consider when applying 403 to evidence admitted under 413-415 are similar to one we have studied in other contexts. regardless of whether formal charges were ever brought for the prior conduct. v) Although 413 and 414 supersede 404 general propensity bar. In the Courtroom 1. Propensity in Sexual Assault and Child Molestation Cases A. 2. The Rules 1. Intro & Policy 1. States Not Following Suit 34 . Courts consider: a) The length of time that has passed since the other acts b) Reliability of the witness testifying about the other acts c) Similarity of the other acts to those charged d) Whether the gov. but give courts broad discretion to admit or preclude any evidence of the victim’s prior sexual conduct or sexual reputation. 2. they do not override other rules such as hearsay and privilege. and may be considered for its bearing on any matter to which it is relevant. 413 allows prosecutors to introduce evidence of other sexual assaults committed by the ∆ and to use that evidence for any purpose. ii) Rules apply only to criminal cases in which the ∆ is charged with either sexual assault or child molestation.Downloaded From OutlineDepot. including to suggest that the ∆ has a propensity to commit sexual assaults B. XXXI.com (i) 2 most common prohibited purposes are: (a) To prove the alleged victim’s consent (b) To attack the alleged victim’s credibility iii) Judicial Discretion a) 9 states have no codified rape shield law. including propensity. a) The judge must decide whether the unfair prejudicial effect of Rule 413/414 evidence substantially outweighs its probative value. evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in 413 and 414. vi) 414 defines a child as a person below the age of 14 y/o. including to suggest that evidence for any purpose. 3. could make similar points with less prejudicial evidence ii) When the facts of another assault or molestation more closely resemble the charged crime. Rule 413/414: Evidence of Similar Crimes in Sexual Assault [Child Molestation] Cases i) In a criminal case in which the ∆ is accused of an offense of sexual assault [child molestation]. Rule 415: Evidence of Similar Acts in Civil Cases Re: Sexual Assault or Child Molestation i) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation. but a judge may exclude conduct that occurred many years ago under 403. Prior Crime Need Not Be Proven i) Any conduct that constitutes an offense of sexual assault or of child molestation is admissible under these rules. ii) Rule 415 allows the π in a civil case involving sexual assault or child molestation to introduce other similar conduct of the ∆ to prove propensity or any other relevant fact C. iv) Evidence is admissible for any relevant purpose. a) This rule shall not be construes to limit the admission or consideration of evidence under any other rule. evidence of the ∆s commission of another offense or offenses of sexual assault is admissible. ii) 413-415 have no time limit. iii) Each rule allows admission of a single type of evidence: a) Evidence showing that the ∆ committed another offense of sexual assault or child molestation.
the trial judge decides the factual issue w/o any deference to the jury. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. how the evidence affects its decision in the case. 412 bars most evidence of the alleged victim’s sexual acts or predisposition. which requires witnesses to testify from their personal knowledge. 4. even after applying 104(b)’s liberal standard ii) Evidence of Other Acts under Rule 404(b) a) 404(b). also generates questions of conditional relevancy. Hearings on other preliminary matters shall be conducted when the interests of justice require. Many questions of admissibility depend on contested facts. by testifying upon a preliminary matter. XXXII. In making its determination it is not bound by the rules of evidence except those with respect to privileges. the existence of a privilege. iv) Other Sexual Assaults by Δ under Rules 413-415 a) 413-315 raise preliminary factual issues subject to the conditional relevance of 104(b) 35 . B.com i) Some courts find creative ways to admit evidence of prior sexual assaults or child molestations. subject to the provisions of sub (b). When resolution of the factual issue does not affect relevance. or when an accused is a witness and so requests. (1) The rule allows the ∆ to introduce that evidence under specified circumstances. Section (c): Hearing of a Jury i) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. 2. The Rule 104: Preliminary Questions 1. i) Preliminary questions concerning the qualification of a person to be a witness. or subject to. iii) Factual Determinations under Rule 412 a) In sexual misconduct cases. Section (a): Questions of admissibility generally. Intro & Policy 1. 2. Section (b): Relevancy Condition on Fact i) When the relevancy of evidence depends upon the fulfillment of a condition of fact. Rule 104(b): Relevance Depending Upon the Fulfillment of a Condition of Fact i) Personal Knowledge under Rule 602 a) 602.Downloaded From OutlineDepot. In the Courtroom 1. frequently stretching their applications of 404(b) to admit evidence as proof of intent or motive or common plan or scheme. 3. offers a straightforward example of an evidentiary rule that generates factual disputes governed by Rule 104(b) b) Sometimes the absence of personal knowledge is so clear that a judge will exclude the testimony. (1) The jury then determine whether the factual condition is met and if it is. C. Preliminary Determinations A. i) The evidence is relevant if a factual predicate turns out to be true. which governs admissions of “other acts” to prove facts like motive or knowledge. Section (d): Testimony by Accused i) The accused does not. b) Judges admit “other act” evidence as long as a reasonable jury could find the factual condition that makes the evidence relevant. 3. 5. but not if the factual predicate is false. the court shall admit it upon. become subject to crossexam as to other issues in the case. Section (e): Weight and credibility i) This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. When a factual dispute affects the relevance of evidence – conditional relevance. or the admissibility of evidence shall be determined by the court.
a) Use of the preponderance standard means that a trial judge can admit evidence under 104(b) even when a previous jury has rejected the evidence under a reasonable doubt standard. and the ∆ denies those assaults. Standard of Proof i) Whether the judge resolves a factual issue independently under 104(a) or determines merely the sufficiency of the evidence “to support a finding” under 104(b). firsthand testimony is made under oath in a formal. b) The judge determines whether an individual’s conduct was sufficiently regular and specific to constitute a habit admissible under 406. Hearsay’s 4 Concerns i) Perception ii) Memory iii) Clarity iv) Sincerity 2. ii) Whether Repeated Conduct is Propensity or Habit under Rule 406 a) Many preliminary decisions that judges make under 104(a) present mixed questions of law and fact. and if the evidence meets that threshold. (1) Separating admissible habit from inadmissible propensity evidence may depend on answers to factual questions. the conflict affects the relevance of the proffered testimony. B. will allow the jury to determine the existence and probative value of the alleged assault. (1) The preponderance standard governs civil and criminal cases. The Rules 36 . iii) Under 104(b). XXXIII. and (2) It applies to issue resolved under 104(a) and 104(b) ii) A judge who resolves a preliminary factual issue under 104(a). a) Court has held that a simple preponderance of the evidence standard applies to all preliminary factual issues resolved under 104. will ask whether the fact governing admissibility has been established by a preponderance of the evidence. 104 is silent about the standard of proof applicable to those decisions. Rule 104(a): Questions of Admissibility Unrelated to Relevance i) Timing of Remedial Measures under Rule 407 a) Deciding a dispute over the timing of a remedial measure under 407 does not affect relevance.com b) If a prosecutor or π offers evidence of other sexual assaults committed by the ∆. confusion and delay may affect a judge’s fact finding decisions under 104(a) and 104(b). 4. (1) The judge will determine whether a reasonable jury could find that the other assault occurred. 5. What Is Hearsay and Why Don’t We Like It? A. Rule 403 i) 403’s concern for prejudice. the judge will ask whether a reasonable jury could find by a preponderance of the evidence that a fact governing admissibility exists. under 104(a) 3. Intro & Policy 1. solemn setting. iii) Other 104(a) Determinations a) Judges resolve existence of dispute or compromise negotiations sufficient to invoke 408. Burden of Proof i) Judges usually place the burden of proof on the party offering the evidence. 2. so the court decides that issue w/o deference to the jury.Downloaded From OutlineDepot. Prefer firsthand testimony to secondhand reporting because: i) Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying ii) Firsthand testimony can be tested by cross-examination iii) The fact-finder can better evaluate the confidence and sincerity of the info if they can watch the individual report it firsthand iv) At trial.
Declarants and Witnesses i) All witnesses are declarants ii) But declarants are witnesses only when they testify under oath at a trial or hearing iii) The first step in applying the hearsay rules is to suspect any testimony that refers to a statement may anywhere but on the witness stand in the current proceeding. Witness’s Prior Statement i) A declarant referring to themselves in the 3rd person can create hearsay because instead of testifying about what was perceived. they testify about prior statements they made. even if a witness quotes her own out-of-court statement. A is the declarant who makes a statement about another declarant a) Statements of both of personal knowledge b) A has personal knowledge of hearing B’s statement. C. (2) offered in evidence to prove the truth of the matter asserted b) A “declarant” is a person who makes a statement. Rule 801: Definitions i) The following definitions apply under this article: a) “Hearsay” is a statement. Who Declared What? i) If A state’s B stated something. 3. 3. B has personal knowledge of whatever he saw/heard 2. Hearsay Requirements i) Hearsay requires a statement ii) The statement must be made by a declarant in a context other than testimony at trial iii) A party must offer the statement to prove the truth of the matter asserted. Evidence Relevant for Multiple Purposes i) Many out-of-court statements are relevant to prove more than one fact. Intro & Policy 1. the statement is not hearsay. it is hearsay. Focus on the personal knowledge of the speaker B. In the Courtroom 1. In the Courtroom 1.Downloaded From OutlineDepot. it is inadmissible hearsay. b) If the declarant makes a statement reporting the info outside the courtroom. 2. The “Truth of the Matter Asserted” A. ii) All out-of-court statements are hearsay. Rule 801: Definitions i) “Hearsay” is a statement. (1) Other than one made by the declarant while testifying at the trial or hearing. XXXIV. Recognizing Declarants i) A declarant is a person who has firsthand info about a fact relevant to a case a) If the declarant offers that info while testifying at trial. 37 . and someone repeats the statement at trial.com 1. 4. Rule 802: Hearsay Rule i) Hearsay is not admissible except a) As provided by these rules or b) By other rules prescribed by the Supreme Court pursuant to statutory authority or c) By Act of Congress 2. Some common purposes for out-of-court statements that do not depend on the truth of the matter asserted i) Knowledge of the speaker ii) Notice to a listener iii) Publication in a defamation case iv) Effect of the listener v) Legally Binding Statements C. The Rule 1. the statement is hearsay. offered in evidence to prove the truth of the matter asserted 2. other than one made by the declarant while testifying at the trial or hearing. If a litigant offers the statement to prove the truth of the matter asserted.
iii) Ask when distinguishing b/w assertive and non-assertive conduct: a) Do we need to assess the actor’s sincerity in order to rely upon the conduct? (1) If we do. Audiotapes i) Tapes are analogous to a witness who repeats out of court assertions. 2. then the assertion is a statement subject to the hearsay rule.com ii) Judge will admit evidence that is admissible for one purpose as long as any unfair prejudice does not substantially outweigh probative value. iii) Examples: a) Time given by a watch – no assertion b) Thermometer reading – no assertion c) Telephone conversations – assertion d) E-mail transmissions – assertion e) Bank silent alarm – assertion f) Order receipt – assertion 38 . Photos and Videotapes i) Unlike audiotapes. ii) If a photo or tape does convey verbal assertions or assertive behavior. Rule 801: Definitions i) A “statement” is a) An oral or written assertion or b) Nonverbal conduct of a person. most photos and videotapes shown in the courtroom do not portray human assertions. and are statements subject to the hearsay rules. Non-Assertive Conduct i) Individuals almost always intend certain gestures. A declarant can make a statement orally or in writing. Declarants can also make statements through actions – such as nods and assertive behaviors. 2. if it is intended by the person as an assertion ii) An assertion is any action undertaken by the declarant that is intended to communicate a fact. 3. Intro & Background 1. 5. Assertive v. then those assertions are statements subject to the hearsay rule. the conduct contains an assertion and the hearsay rule applies. What is a Statement A. ii) Recorded statements are hearsay only if offered for the truth of the matter asserted. a) If a person communicated a fact through a machine. the assertion is a statement even though it is transmitted through a machine. b) If the machine generated info according to its own internal processes. 4. ii) Actions like nodding or pointing do assert something because they convey matters that have a truth. Machine Readouts i) Info conveyed by a machine is usually not a statement. C. such as nodding and finger-pointing. a) Rule 403 balance tilts in favor of admissibility and often admits evidence with hearsay and non-hearsay purposes. B. i) Actions like moving forward at a green light or answering a phone are non-assertive behavior and there is no truth of any matter to assert. In the Courtroom 1. as assertions. ii) Some gestures are more ambiguous and the court must look at the context to see if the declarant intended to assert a fact through her action.Downloaded From OutlineDepot. The Rule 1. ii) If a machine conveys an assertion made by a person. Implicit Assertions i) Assertions are sometimes hidden within some actions. XXXV. offered for the truth of the matter asserted. a) Key is whether the declarant intended to communicate a fact through her conduct. then the machine’s output is not an assertion by a person.
if a hearsay statement were irrelevant to the case.” 3. Rule 803 is the largest category of hearsay exceptions. ii) Substantially depends on reliability rather than the need for evidence. The statements are hearsay. Admissible Hearsay A. Rule 801(d) defines 2 types of out-of-court statements as “not hearsay” i) Prior statements by witnesses. i) Crawford only applies in criminal cases. Each hearsay exception refers to circumstances that confer special reliability and/or necessity to the hearsay statement 5. 6th Amendment guarantees a criminal Δ the right “to be confronted with the witnesses against him. 801(d) Exemptions i) Prior statement by witness ii) Statement of party-opponent 2. Four Categories of Exceptions 1. it would be barred under Rule 402. 807: Residual Exception i) Other statements having equivalent circumstantial guarantees of trustworthiness 4. and courts admit them b/c special considerations trump the rule against hearsay. i) Death/Dying ii) Privilege 4. 803: Availability of Declarant Immaterial B. and the policy principles supporting the exception 6. 2. but have some similar guarantees or trustworthiness.com iv) Need the assurance of courtroom appearance and cross-exam when info transmitted by a machine originated with a human decision maker. and ii) Statements made by opposing parties. Proponent of a hearsay statement bears the burden of proving by a preponderance of the evidence that the statement fits into a given exception. Some hearsay statements are more needed than others. Some hearsay statements are more reliable than others. 3. When applying an exception. Rule 804 recognizes 5 exceptions to the hearsay rules – they apply only if the declarant is unavailable to testify in court. Every exception has its own conditions that must be fulfilled before the exception will apply 2. Hearsay Exceptions – 31 1.Downloaded From OutlineDepot. 3. 4. Underlying policy of wanting to find the truth allows some hearsay. C. The judge decides these questions under Rule 104(a) 3. 31 hearsay exceptions. 804: Declarant Unavailable i) Former testimony ii) Statement under belief of impending death (dying declaration) iii) Statement against interest iv) State of personal or family history v) Forfeiture by wrongdoing 3. Exceptions to the hearsay rule can raise constitutional issues in criminal trial. XXXVI. 23 exceptions i) These exceptions apply even if the available declarant testifies. E. 2. or unavailable to testify. A Word About the 6th Amendment 1. Intro & Policy 1. Who Decides? 1. Washington that raises new constitutional questions. 2. In 2004 the Supreme Court decided Crawford v. prior cases construing that exception. D. 39 . Rule 807 creates a residual exception that allows court to admit some statements that fall outside the other 30 exceptions. judges look to the language of the rule. The admissibility of hearsay statements does not depend on their relevance. a) Excited utterances b) Commercial publications c) Learned treatises 5. 4.
C. “Subject to Cross-Examination” 40 . and iii) Pre-trial identifications of a person 3. The Rule 1. and similar certificates xiii) Family records xiv) Records of docs affecting an interest in property xv) Statements in ancient docs xvi) Market reports. baptismal. XXXVII. i) Out-of-court identification has the unusual characteristic of being more reliable than in-court identifications. B. Parties usually offer a witness’s prior statement when the witness can no longer remember the specific incident directly. Rule 801(d)(1)(C) allows introduction of any identification of a person. 4. or changes her testimony.com i) Present sense impression ii) Excited utterance iii) Then existing mental. The rule recognizes 3 types of prior witness statements that are admissible: i) Statements that are inconsistent with the witness’s courtroom testimony ii) Statements that are consistent with that testimony. hearing. commercial publications xvii)Learned treatises xviii) Reputation concerning personal or family history xix) Reputation concerning boundaries or general history xx) Reputation as to character xxi) Judgment of previous conviction xxii)Judgment as to personal. A statement is not hearsay if – a) Prior statement by witness (1) The declarant testifies at the trial or hearing (2) And is subject to cross-examination concerning the statement (3) And the statement is (i) Inconsistent with the declarant’s testimony. as long as the person who made the identification testifies at trial and is subject to cross-examination on the identification. and iii) It occurred at a deposition or during a trial. 5. or in a deposition (ii) 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. emotional or physical condition iv) Statement for purposes of medical diagnosis or treatment v) Recorded recollection vi) Records of regularly conducted activity vii) Absence of entry in records kept in accordance with provisions of the previous exception viii) Public records and reports ix) Records of vital statistics x) Absence of public record or entry xi) Records of religious organizations xii) Marriage. family. Rule 801(d)(1)(A) exempts a witness’s prior statement if the statement satisfies 3 conditions: i) It is consistent with the witness’s current testimony ii) It was made under oath. Rule 801(d)(1) i) Statements which are no hearsay. and was given under oath subject to the penalty of perjury at a trial.Downloaded From OutlineDepot. In the Courtroom 1. (iii) one of identification of a person made after perceiving the person. claims a privilege against testifying. hearing. or other proceeding. ii) Exemption for prior identifications thus rests on both reliability and need. or general history or boundaries. Intro & Policy 1. Hearsay Exemption – Prior Statements by Witnesses A. Rule 801(d)(1)(B) maintains the hearsay bad when a prior consistent statement would merely repeat the witness’s testimony. or other proceeding. 2.
iii) Procedural Rules of 613 still apply. parties also use that rule to introduce prior consistent statements rehabilitating a witness’s credibility. at a trial. Rule 613 Any prior consistent statement related to a fact of consequence is admissible Statement is admissible only to impeach the witness’s credibility Judge will instruct the jury to use the prior statement only to assess credibility Rule 801(d)(1)(A) Prior inconsistent statement must have been made under penalty of perjury. iii) Statements under 613 are not introduced to prove the truth of the matter asserted. 2. the prior statement is admissible under the hearsay exemption. Admitting Prior Statements under Rule 801(d)(1) 1. Rule 801(d)(1) and Rule 613 1.Downloaded From OutlineDepot. paving the way for counsel to introduce those statement.com i) Witnesses who take the stand and claim lack of memory are still subject to crossexamination. Out of Court Identifications D. i) Under some circumstances. as inconsistent with a witness’s prior detailed statements. When is a Statement “Inconsistent?” i) When a person appears to be feigning memory loss. Rule 613 governs use of a witness’s prior inconsistent statements to impeach the witness’s credibility. Oath and Proceeding 4. i) Parties introduce these statements b/c they want to give the jury the info contained in them. Prior statements admitted under 801(d)(1) are offered for their content. 2. they introduce evidence to illuminate the witness’s credibility. under oath. 2. Timing of Prior Consistent Statements 5. statements to police and investigators do not 41 . hearing. ii) Most courts treat memory loss. ii) A party offers a prior inconsistent statement under 801 for its substance – the prior statement must have been made under oath at a proceeding. Witness must be subject to cross-examination Witnesses with real or feigned memory loss are “subject to cross” Witnesses who assert a blank privilege are not “subject to cross” Witnesses who claim privilege selectively may be “subject to cross” Prior Consistent Stmt: 801(d)(1)(B) • Must be offered to rebut express or implied charge of recent fabrication or improper influence or motive • Prior statement must have been made before the motive to fabricate or improper influence began Identification: 801(d)(1)(C) • Must be an identification of a person Prior Inconsistent Stmt: 801(d)(1)(A) • Memory failure constitutes inconsistency • Statement must have been given under oath subject to perjury at hearing or other proceeding • Grand jury and depo testimony count as proceedings. or deposition Party may rely upon the statement to prove the truth of the matters asserted No limiting instruction E. 3. 4. 5. while those who completely refuse to testify by invoking the privilege against selfincrimination are not. real or feigned. 3. Prior statement must have been made by a witness at the current proceeding. the prior detailed statement is inconsistent with the current claims of lost memory. ii) Parties who offer statements under 613 do not offer them for content of those statements. 3. The 2 rules allow intro of prior statements for very different purposes. a) If the other requirements of 801(d)(1)(A) are satisfied. other proceeding.
Availability of Declarant Immaterial i) The following are not excluded by the hearsay rule. Parties who offer statements under Rule 803 need not call the declarant to a the stand.com XXXVIII. a hurdle that parties must clear when invoking the Rule 804 exceptions. nor need they prove that the declarant is unavailable to testify. A statement describing or explaining or event or condition made while the declarant was perceiving the event or condition. Rule 803(1) imposes 2 conditions that define present sense impressions i) The exception applies only to descriptions or explanations of an event. and other more complex observations all imply a degree of mental engagement that could include deception. Rule 803(2) governs excited utterances 5. Rule 803: Hearsay Exceptions. iii) The line b/w description and analysis can be blurry. the declarant has little time to reflect or fabricate. even if the declarant makes them while still excited. 42 . 803(1) excludes that type of observation. The Rule 1. Hearsay Exceptions – Present Sense Impressions and Excited Utterances A. not to more complex analyses or interpretations. but the utterance still must relate to the provoking event. Intro & Policy 1. it depends on the declarant’s words and the context. C. the declarant must make it while perceiving the event or immediately thereafter. Rule 803(1) exempts present sense impressions from the hearsay ban 4. 3. even though the declarant is available as a witness: a) Present sense impression. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Description or Analysis? i) A present sense impression must describe or explain. the absence of analysis suggests that the speaker is not engaging the mental processes that might support deception. iv) Statements of present sense impression should stick closely to the unfolding facts. or immediately thereafter. ii) Analysis invokes more complex mental processes that may provide an opportunity for deception. ii) Most present sense impressions occur contemporaneously with the events they describe. ii) For a statement to qualify as a present sense impression. In the Courtroom 1. 2. Rule 803(2) has different prerequisites i) The declarant must speak while excited by a startling event a) Standard is subjective – the particular declarant must have been excited by the event b) The subjectivity of the standard relates to the rule’s underlying rationale: the excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking.Downloaded From OutlineDepot. ii) An excited utterance must “relate to” the starting event a) An excited utterance may move beyond description by analyzing or interpreting the event. 2. v) Critical commentary. iii) 803(1) grants a small amount of flexibility in timing: descriptions made immediately after an event may also be admissible. Rule 803 has 23 exceptions to the hearsay rule. “Immediately Thereafter” i) The fact that these descriptions occur as an event unfolds enhances their reliability. analysis. 3. rather than analyze. b) Excited utterance. i) The common characteristic: a litigant may invoke them whether or not the declarant is available to testify 2. a contemporaneous event. b) Unrelated comments are not admissible under this exception. Judge decides whether it comes in under 104 B.
Availability of Declarant Immaterial i) The following are not excluded by the hearsay rule. Comments about a current state of mind give little opportunity to concoct a lie. as well as of the startling event. 6. proponents of excited utterance often introduce: a) The declarant’s in-court testimony. iv) Attacks. ii) The reliability of these statements rests on the spontaneity prompted by startling events and the difficulty most people would have lying while responding to them. prior experiences. affirming that she made the statement as she perceived the event b) Testimony from other witnesses who can confirm that the declarant made the statement while the event unfolded. Foundation. The Rule 1. iii) It is not enough that the event would have excited a reasonable person. ii) The declarant must speak while still in an excited state. 5.Downloaded From OutlineDepot. XXXIX. iv) Some events are startling to particular people under specific circumstances. Foundation i) The key to winning admission of an excited utterance or present sense impression is to lay the proper foundation. ii) The proponent may offer the statement itself as evidence that the declarant was excited or reciting a present sense impression. affirming that he was excited when making the statement b) Testimony from witnesses who perceived the declarant when he made the statement. Rule 803: Hearsay Exceptions. to enhance reliability. B. Startling Events and Excited Declarants i) The declarant must make a statement with genuine excitement or stress. Foundation. Intro & Policy 1. How Long Does Excitement Last? i) Does not limit excited utterances to statements that occur during the startling event or immediately thereafter. and other characteristics that might affect how excited the declarant would become in certain situations d) Evidence about how traumatic or exciting the event that provoked the declarant’s statement was 3. and similar events may generate stress that lasts for 30 mins or longer. and never more than a few minutes. rather than on her descriptive focus. serious accidents. 3. Rule 803(3) assumes that a declarant’s expression of his statement of mind is sufficiently reliable to admit into evidence. even though the declarant is available as a witness: 43 . these statements are more reliable that most out-of-court declarations. “Relating to” the Event i) The exception for excited utterance admits any statement that relates to an event ii) The excited utterance exception relies upon the declarant’s excitement. iii) The duration of this excited period depends on the characteristics of the declarant. When admitted to prove the declarant’s state of mind at the moment. iii) To show a present sense impression. Hearsay Exception – State of Mind A. which may be admissible even though most individuals would have found the occurrence routine. 4.com iv) This window is always small: usually only a few seconds. v) Courts seem to tie the permissible amount of time to what the declarant was doing during those intervening minutes or seconds. proponents also commonly introduce: a) The declarant’s in-court testimony. These witnesses could testify to: (1) The declarant’s mannerisms and tone of voice when he made the statement (2) The time that elapsed b/w the provoking incident and the statement (3) The declarant’s relationship to the provocation c) Evidence about the declarant’s age. 2. iv) In addition to the content of the statement.
Hillmon a) Unreliability in using one’s out-of-court expression of intent to prove the actions of another person. ii) Evidence of a declarant’s state of mind can show motive. A statement of the declarant’s then existing state of mind. or other medical condition. Looking Back i) 803(3) admits only expressions of a “then existing” state of mind. or terms of declarant’s will.com a) Then existing mental. emotion. Circumstantial Evidence of Mental State i) Statements about external facts or events don’t qualify as expressions of a “state of mind” admissible under 803(3) – but those statements are sometimes admissible to prove state of mind. 3. iii) A person’s current mental state sometimes offers circumstantial evidence of their prior mental condition. identification. With Someone Else i) A declarant’s expression of intent offer circumstantial evidence that the declarant acted on the intention. a) The unavailability of the testator with desire to further that person’s intent. Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed. ii) Out of court declarations are hearsay only when a party offers them to prove the truth of the matter asserted. design. which raises some risks of prejudice. and other medical professionals to testify at many trials involving injury. sensation. doctors. state of mind. and calm. emotional. motive or plan. . as it describes a past. b) But not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. Assumes that the statement was more likely to be accurate than most other hearsay. pain. revocation. i) An out of court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity of the declarant’s will. XL. 2. or physical condition (such as intent. not the future conduct of another person.” 4. mental feeling.Downloaded From OutlineDepot. 3. plan. thirst and pain. motive. I Think. or physical condition. v. Looking Forward . a) If a party introduces a statement as circumstantial evidence of the declarant’s mental condition. Looking Forward i) Allows parties to introduce hearsay about “then existing” mental states to help prove subsequent thoughts or acts. What is a State of Mind? i) 803(3) includes physical sensations. Exception serves a need for efficiency. Reduces the need to call nurses. and bodily health). no longer valid (1) Now – Statements of intent by a declarant admissible only to prove his future conduct. 2. 44 . happiness. 2. anger. b) The rule of Hillmon. supports admissions of these statements. I Remember i) These words are usually red herrings as often they introduce statements about external facts or events and are not expressions of a statement of mind. ii) An out of court statement about something that hurt yesterday is not admissible under 803(3). 5. such as fear. ii) Sometimes memories and beliefs are relevant to a legal dispute and then 803(3) may admit the full content of a memory or belief as a relevant “state of mind. ii) Hillmon Doctrine – Mutual Life Ins. ii) Includes all types of emotional states. rather than a current. like hunger. disease. the statement isn’t hearsay. I Believe. C. Hearsay Exception – Medical Treatment A. iii) Includes cognitive schemes such as intent. Intro & Policy 1. or often offer the evidence as circumstantial proof that the declarant acted consistently with her expressed plans. In the Courtroom 1. . 6.
Rule 803(4): Hearsay Exceptions. Statements must be reasonably pertinent to diagnosis or treatment i) Objective ii) Assumes medical professionals guide consultations toward pertinent facts 4. 3.Downloaded From OutlineDepot. iii) A few courts have included spousal abuse. iii) Statements blaming specific individuals for the cause. Statements made for purposes of medical diagnosis or treatment and (1) Describing medical history. even though the declarant is available as a witness: a) Statements for purposes of medical diagnosis or treatment. Psychologists and Psychiatrists i) Most courts have assumed rule also covers psychological illnesses ii) Statements about the cause or external source of psychological injury sometimes are very difficult to separate from comments attributing blame.com 4. i) If the statements are made to a friend in a casual conversation they would not be admissible. ii) Provision recognizes that proper diagnosis and treatment often require knowledge about how the condition arose. Statements must fit within 1 of 3 categories listed by the rule i) Accounts of medical history ii) Descriptions of past or present symptoms. C. or iii) Reports about the inception or general character of the cause or external source of the condition 5. pain. 3. doctor. The Rule 1. b) Effective psychological treatment of an abuse victim may require the doctor to know who caused the abuse. or attributing a particular degree of fault to those individuals. nurse B. Declarant must make the statement for the purposes of getting a medical diagnosis or treatment. or (3) The inception or general character of the cause or external source thereof b) Insofar as reasonably pertinent to diagnosis or treatment 2. In the Courtroom 1. Diagnosis or Treatment? i) Allows parties to admit statements made to doctors who they consulted purely to prepare for litigation 4. 6. Fault and Blame i) Includes statements that a patient makes describing the inception or general character of the cause or external source of the condition when those statements are pertinent to medical care. pain. or (2) Past or present symptoms. Who is the Declarant? i) Rule assumes that the declarant usually is the patient needing medical diagnosis or treatment 2. Availability of Declarant Immaterial i) The following are not excluded by the hearsay rule. Who is the Audience? i) The rule does not require the person seeking medical treatment communicate with a physician or other medical professional. usually are not relevant to medical care. or sensations. ii) Child abuse cases have blurred this line by finding the perpetrator’s identity pertinent to treatment and thus admissible. iv) Statements admitted derive their reliability from the fact that the declarant made them while obtaining medical care. a) Some courts have held that treatment of pt suffering regular. Must only be made in an attempt to get held – telling someone to call 911. 5. ongoing abuse may include separation of the pt from the abuser. Cause and Source v. or sensations. Medical Treatment for Domestic or Sexual Abuse i) The line b/w cause and fault usually precludes evidence of identity. 45 . Statements only admissible if declarant subjectively makes them for the purpose of getting medical diagnosis or treatment and if they are objectively pertinent to that medical care. i) Requirement is subjective ii) Patient must actually be seeking medical care.
ii) Therefore. then affirms at trial that he believed the recording was accurate at the time. Introducing Evidence i) 803(5) does not allow the party offering a recorded recollection to introduce the document directly into evidence as an exhibit. 3. b) If admitted. ii) As long as the witness approved the content of the recording while his recollection was still fresh. Recorded recollections are particularly reliable because i) They were made when the declarant’s memory was fresh. The Rule 1. even though the declarant is available as a witness: a) Recorded Recollection. a) The party presenting the evidence must ask the witness to read the doc into the record. and subject to crossexamination about the circumstances under which she recorded the statement B. Insufficient Recollection i) 803(5) allows admission of recorded recollections only when a witness lacks current memory of an event. Admissibility of Recorded Recollection i) 6 requirements for admissibility. In the Courtroom 1. 3. Hearsay Exception – Recorded Recollection A. then 803(5) does not allow its introduction into evidence. the memorandum or record (1) May be read into evidence (2) but may not itself be received as an exhibit unless offered by an adverse party 2. under oath. A memorandum or record concerning a matter (1) About which a witness once had knowledge (2) but now has insufficient recollection to enable the witness to testify fully and accurately (3) shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory (4) and to reflect that knowledge correctly. Rule 803(5): Hearsay Exceptions i) The following are not excluded by the hearsay rule. iii) But if a witness refuses to adopt a statement.Downloaded From OutlineDepot. and that she made or adopted the record at the time when she had that knowledge d) Witness must have made or adopted the record at a time when her knowledge was fresh e) Witness must testify that at the time she made or adopted the record.com XLI. she knew that it accurately reflected the knowledge that she had. ii) An adverse party may choose to introduce the doc as an exhibit C. f) Witness must now have no recollection about the info contained in the record. Beyond Writings 46 . and ii) The declarant is available to testify in the courtroom. Intro & Policy 1. as long as circumstances indicate that the witness genuinely remembered the info at the time it was recorded. Made or Adopted i) 803(5) recognizes that a witness need not memorialize a recollection himself. ii) Courts have allowed recorded recollections that were created as long as 15 months after an event. 2. a) Out-of-court statement appear in a memorandum or record b) Witness must either be the declarant who made the record or a person who saw the record and agreed that it was true c) Witness must testify that she once had knowledge about the info contained in the record. must show that the witness no longer recalls info from the recorded recollection. Freshness i) Does not require contemporaneous notetaking. 4.
Hearsay Exception – Business Records A. a) W/o that info.com i) Reference to “record” broadly includes audiotapes and other media. so there is no hearsay issue. 5. for the truth of the matters asserted. 2. Recorded Recollection and Refreshment i) Difference b/w 612 and 803(5) Rule 612: Refreshing Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once has personal knowledge What Witness Does: Looks at evidence to jog memory. it is admissible only on issue of credibility. such as to show the existence of a warning. as read into record by witness. Multiple Layers and Truth of the Matter Asserted i) A statement offered for some other purpose. the witness need not have created or adopted the material Who May Introduce Evidence used to Refresh: Only adverse party Relationship to Hearsay: Witness testifies directly from memory after refreshment. Rule 803(5): Recorded Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge What Witness Does: Reads into record info from a document or other recording What Type of Doc or Recording: Once that the witness “made or adopted” when the matter was “fresh” in the witness’s memory. The Rule 1. it can be challenging to establish the foundation needed to admit the initial statements. C. XLII. 2. is not hearsay. Recording must correctly reflect witness’s personal knowledge at time it was recorded. The jury may consider the content of document or other recording. Intro & Policy 47 . ii) One out of court statement may include another statement that is offered to prove something other than the truth of its contents a) The embedded statement then is not hearsay XLIII. Who May Introduce Recorded Recollection: Only adverse party Relationship to Hearsay: Statements contained in the record are admitted as an exception to the hearsay rule. 805 allows double hearsay to be admitted as long as each out of court statement is admissible under an exception. Rule 805: Hearsay within Hearsay i) Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules. then testifies orally w/o referring further to evidence What Type of Evidence: Any writing or other evidence that will help witness remember. If adverse party introduces writing into evidence. Intro & Policy 1. Rule 805 – Hearsay within Hearsay A.Downloaded From OutlineDepot. For the jury to consider the writing for the truth of the matter asserted. B. Written docs often contain statements of 3rd parties – containing 2 levels of hearsay. Laying a Foundation i) With double hearsay the courtroom witness usually lacks info about early declarants in the communication chain. In the Courtroom 1. it must fall within a hearsay exception.
C. Insiders. routine practices a) Organization’s procedures are likely to reduce mistakes in docs and to detect those that do occur. and an individual who collected guns for investment purposes. conditions. association. Who is a Custodian or Other Qualified Witness? i) To introduce records under 803(6). events. What is a Business? i) Courts have construed this broadly to include records of prisons. and if it was the regular practice of that business activity to make the memo. report. 4. a) Enhances the reliability of the records. Regularly Conducted Business Activities and Regular Practices. a) The transmitted by language does not include 3rd parties who provide info to an organization. 3. In the Courtroom 1. record. and (3) The record was made by a person with personal knowledge of the recorded info or from info transmitted by a person with personal knowledge. occupation. and Double Hearsay i) 803(6) encompasses only info transmitted from one organizational insider to another. ii) Organizations rely upon docs like these to make important decisions. even though the declarant is available as a witness. Rule 803(6): Hearsay Exceptions. profession. hospitals. in any form. Availability of Declarant Immaterial i) The following are not excluded by the hearsay rule. and call of every kind. report. ii) Employee statements are admissible. 48 . ii) The record need not be made daily or weekly. a) The 3rd party statements must either be redacted or have a separate hearsay exception to support their admission.com 1. even if the organization collects the info as part of a regularly conducted business activity. 5. or data compilation. Outsiders. A memo. or from info transmitted by. The Rule 1. ii) Self-employed individuals qualify as a business under 803(6) iii) Personal records kept for business reasons can qualify for the exception as long as they meet all of the conditions of the rule. a) The witness must be able to testify that: (1) The record was kept in the court of a regularly conducted business activity (2) The record was kept in the regular practice of business. or by certification that complies with 902(11). a) Records of regularly conducted activity. a person with knowledge (2) If kept in the course of a regularly conducted business activity. but there must be some regularity or routine. B. colleges. i) If the organization relies upon the record as a part of a regular business activity then it has a strong incentive to kept the record honestly and accurately. Lack of Trustworthiness i) The rule excludes the record if the source of the info or the method or circumstances of preparation indicate lack of trustworthiness a) Court most often apply this to records that were prepared in anticipation of litigation. whether or not conducted for profit. but hearsay. 902(12) or a statute permitting certification (4) Unless the source of info or the method or circumstances of preparation indicate lack of trustworthiness b) The term “business” includes business institution. there are 2 reasons to believe that they are more reliable than other kinds of hearsay i) Organizations generate most of the docs accord to well established. the proponent must call a witness who can lay a foundation for the docs.Downloaded From OutlineDepot. Although most business records are hearsay. of acts. 2. record or data compilation (3) All as shown by the testimony of the custodian or other qualified witness. opinions or diagnoses (1) Made at or near the time by.
and d) Whether the motivation of the public agency is suspect – for example. even though the declarant is available as a witness: a) Public records and reports. and conclusions found in the report of an investigation. or data compilations. Rule 803(8) allows parties to admit public records into evidence for truth of the matter asserted. In the Courtroom 1. but that provision does not include the 3rd party statements. ii) All statements contained in the report of a gov investigation are findings of fact under 803(8) (c) 4. Records. C. 3. 2. whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation ii) If a record falls within the first two subsections appears untrustworthy. Hearsay Exception – Public Records A. Law Enforcement and Criminal ∆s i) Police and other law enforcement have strong professional interest in convicting individuals who have committed crimes. a) Unless another hearsay exception admits those statements. a) Any document fitting within both rules must meet the 803(8) section’s requirements for admission. statements. their reports may not display the neutrality of other public records. ii) Inferences and conclusions drawn from hearsay that are in the reports that represent the views of the investigator are admissible.com XLIV. of public offices or agencies. Factual Findings i) The courts should interpret “factual findings” broadly to encompass all facts. the judge will redact them before giving the report to the jury. The Rule 1. Availability of Declarant Immaterial i) The following are not excluded by the hearsay rule. excluding. in any form. 49 . governed by 805. Hearsay w/in Hearsay i) The report as a whole may be admissible under 803(8). Lack of Trustworthiness i) 4 factors the court should consider in determining whether a public record of an investigation is trustworthy a) Timeliness of the investigation b) Special skill or experience of the official conducting the investigation c) Whether a hearing was held by the public agency prior to the report being made. i) Records are more reliable ii) Public records are more needed than other kinds of hearsay B. factual findings resulting from an investigation made pursuant to authority granted by law. opinions.Downloaded From OutlineDepot. Rule 803: Hearsay Exceptions. in criminal cases matters observed by police and other law enforcement personnel. public agencies are institutions or associations fitting within the broad bounds of 803(6). 803(8) and Other Rules i) Most public records also qualify as business records. however. 5. setting forth: (1) Activities of the office or agency. or (2) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. Intro & Policy 1. ii) Also prevents prosecutors from introducing records of law enforcement observations only when they were made in an adversarial setting. reports. unless the sources of info or other circumstances indicate lack of trustworthiness. a court could invoke 403 to exclude the document. or (3) in civil actions and proceedings and against the gov in criminal cases.
even though the declarant is available as a witness. report. lists. b) Whether a party uses the learned treatise on direct or cross. 50 . directories. Commercial Publications\ i) The following are not excluded by the hearsay rule. medicine. the statements read aloud by witnesses are admitted as substantive evidence.Downloaded From OutlineDepot. record. even though the declarant is available as a witness: a) Market reports. periodicals. (1) Statements contained in published treatises. To prove the absence of a record. or other published compilations. 803(18): Learned Treatises i) The following are not excluded by the hearsay rule. even though the declarant is available as a witness: a) Statements in ancient docs. or the nonoccurrence or nonexistence of a matter (1) Of which a record…in any form. Hearsay Exceptions – Other 803 Exceptions A.com ii) When info in a public record violated another rule of evidence. In the Courtroom i) Foundation and Testimony a) The process of introducing a learned treatise: (1) Proponent must first establish the treatise is reliable authority in particular field. 4. b) Since it is an exception to the hearsay rule. the statements may be read into evidence but may not be received as exhibits. even though the declarant is available as a witness: a) To the extent called to the attention of an expert witness upon cross-exam or relied upon by the expert witness in direct exam. generally used and relied upon by the public or by persons in particular occupations. it allow the jury to consider the info read aloud for the truth of the matter asserted. the party cannot introduce the treatise itself into evidence. records. commercial publications. or data. and (2) Must link the treatise to an expert’s testimony. The Rules 1. or pamphlets (2) On a subject of history. tabulations. the judge will redact inadmissible evidence and admit any remaining portion of the report. 803(7) and 803(10): Absence of Business Records of Public Records i) The following are not excluded by the hearsay rule. c) Evidence in the form of a certification in accordance with 902. report. Evidence that a matter is not included in the memo reports. 3. in any form (1) Kept in accordance with the provisions of (6) to prove the nonoccurrence or nonexistence of the matter. statement. or testimony. a) (7) Absence of an entry in records kept in accordance the provisions of (6). Statements in a doc in existence 20 years or more the authenticity of which is established. 803(16): Statements in Ancient Docs i) The following are not excluded by the hearsay rule. that diligent search failed to disclose the record… 2. 5. or other science or art (3) Established as a reliable authority by testimony or admission of a witness or by other expert testimony or by judicial notice b) If admitted. ii) Purpose of Admission a) Although treatises are not admitted into evidence in their entirety. XLV. or data was regularly made and preserved (3) Unless the sources of info or other circumstances indicate lack of trustworthiness b) (10) Absence of public record or entry. was regularly made and preserved by a public office or agency. or data. Market quotations. (2) If the matter was of a kind of which a memo. in any form. 803(17): Market Reports.
but was unable to do so. 2. Lack of Memory i) The court need not find the witness has actually lost his memory. Mental Illness i) Declarant is unavailable is she is dead or so physically or mentally ill that she cannot testify at the proceeding ii) The physical or mental illness must be sufficiently disabling that a) The declarant cannot come to court to testify. Rule 804(a): Hearsay Exceptions. iii) Crucial factor is not the unavailability of the witness but the unavailability of his testimony. Privilege i) If a witness invokes one of the privileges and the court agrees the privilege shield the witness’s testimony. 4. inability. a party must usually call the declarant to the stand and question her. or d) Is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity. then sub 804(a)(1) declares the witness unavailable 3. (3) or (4) the declarant’s attendance or testimony by process or other reasonable means ii) A declarant is not unavailable as a witness if exemption. the witness is unavailable to testify about the desired subject matter. ii) Wrongdoing Caveat. Declarant Unavailable i) Definition of unavailability. a party must call the declarant to the stand. Death. or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. Unavailability as a witness includes situation in which the declarant – a) Is exempted by ruling of the court on the ground of privilege from testifying re: the subject matter of the declarant’s statement b) Persists in refusing to testify re: the subject matter of the declarant’s statement despite an order of the court to do so. claim of lack of memory. 5. Refusal to Testify i) The party who called the uncooperative witness should not suffer unfairly due to witness’s failure to testify. refusal. a) Meant to prevent improper behavior by parties. or c) Testifies to a lack of memory of the subject matter of the declarant’s statement. 3.Downloaded From OutlineDepot. B. or e) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance for in the case of a hearsay exception under sub (b) (2). and b) There is little likelihood of recovery within a reasonable time 6. In the Courtroom 1. Rule 804 Intro – What is Availability? A. Absence i) A declarant is unavailable if a party shows that she tried to find the declarant and bring him to the hearing. ii) Whether the witness’s memory loss if real or feigned. The Rule 1. Refusal to Testify and Lack of Memory i) To establish either grounds for unavailability. a) Party must use reasonable means in addition to serving a subpoena to persuade declarant to attend trial b) The proponent must use reasonable means to take the declarant’s depo if the declarant will not attend trial. 2.com XLVI. Death or Incapacity 51 . Privilege i) To show unavailability on basis of privilege. Physical Illness. b) A party offering the witness’s out of court statement cannot cause a witness to be unavailable through wrongful means.
the proponent of the evidence must intro documentary evidence or live testimony to show the declarant’s condition. or redirect examination. but physically or mentally unable to testify. or in a civil action or proceeding. a predecessor in interest (3) Had an opportunity (4) And similar motive to develop the testimony by direct. a party must show a good faith. 52 . genuine effort to procure the declarant’s attendance. Testimony (1) Given as a witness at another hearing of the same or dif. Predecessors in Interest i) A litigant may introduce former testimony as long as the opposing party or that party’s predecessor in interest had an opportunity to develop the witness’s testimony at the prior proceeding. Similar Motives i) 804(b)(1) enhances the reliability of prior testimony by admitting the statement only when the opposing party has a similar motive to develop the declarant’s testimony at the prior proceeding. it is only the opportunity and motive that matter. and iv) Firsthand testimony occurs under oath in a formal courtroom setting B.Downloaded From OutlineDepot. proceeding. cross. 4. Hearsay Exception – Former Testimony A. 4. XLVII. ii) The party or predecessor need not have actually conducted a cross-exam or direct exam of the declarant. a) An absence of cross-exam or other questioning reduces the likelihood that a court will find a similar motive or predecessor in interest. ii) The opposing party must have appeared in the prior proceeding and had an opportunity to develop the witness’s testimony. ii) If declarant is alive. The following are not excluded by the hearsay rule. and b) During the prior proceeding. Absence i) To demonstrate a declarant cannot be found or brought to court. 2. had a motive for developing that testimony similar to the current opposing party’s motive for cross-exam. In the Courtroom 1. The Rule 1.com i) To establish declarant’s death. Declarant Unavailable i) Hearsay Exceptions. Against the Same Party in Criminal Cases i) Supports admission of prior testimony only if the opposing party personally had the opportunity to cross-examine the witness at the prior proceeding. made outside the current trial. A witness’s prior testimony is hearsay: i) It is a statement. offered for the truth of what the witness asserted 2. C. Four reasons why hearsay testimony is less reliable than firsthand courtroom testimony: i) Hearsay compounds the risk that one of the speakers is mistaken or lying ii) Opposing counsel can test firsthand testimony through cross-examination iii) The fact finder can assess the credibility of a firsthand report by observing the witness. even though the declarant is available as a witness: a) Former Testimony. 3. Rule 804: Hearsay Exceptions. or in a depo taken in compliance with law in course of same or another proceeding (2) If the party against whom the testimony is now offered. a party usually introduces a death certificate or other evidence of declarant’s demise. Intro & Policy 1. Opportunity to Develop Testimony i) Admits prior testimony as long as the party or predecessor in interest a) Had an opportunity to develop the declarant’s testimony at the prior proceeding.
Hearsay Exception – Dying Declarations *** A. R. ii) The proponent can rely on any type of evidence to prove this belief. 2. or grand jury presentation 6.Downloaded From OutlineDepot. state of mind.com 5. B. a statement made by a declarant while believing that the declarant’s death was imminent. Declarant Unavailable i) The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a) Statement under belief of impending death. statements to obtain med treatment. and had a similar motive as in current proceeding • Made at any prior proceeding. Depos in Civil Cases i) Overlaps with Rule 32 of Fed. but courts most often consider: 53 . 804(b)(1) and 801(d)(1)(A) Prior Inconsistent Statements by Witness 801(d)(1)(A) • Must testify at current hearing or trial Former Testimony 804(b)(1) Declarant • Must be unavailable • Must be subject to crossContent of Statement: Context of Prior Statement: • • exam re: the statement Inconsistent with current testimony Must have been under oath • Any Content • Must have been under oath • Made at a prior proceeding (or in a civil case a predecessor in interest) had the opportunity to cross-exam or develop testimony on direct. such as excited utterance. a) The party offering the dying declaration must prove belief by preponderance of the evidence. When is Death Imminent? i) The declarant must have a settled hopeless expectation that death is near at hand. In the Courtroom 1. XLVIII. and forfeiture. re: the cause or circumstances of what the declarant believed to be an impending death. Pro. 3. depo. C. In prosecution for homicide or in a civil action or proceeding. Proving State of Mind i) The judge decides whether the conditions support admission of a dying declaration. Dying Declarations i) The trial is a CIVIL case or a HOMICIDE prosecution ii) The declarant is unavailable iii) The declarant subjectively believed that death was imminent iv) The statement concerned the cause or circumstances of death. not on how long declarant actually survived. The Rule 1. Intro & Policy 1. Rule 804: Hearsay Exceptions. Dying Declarations and Other Exceptions i) Many dying declarations are also admissible under other hearsay exceptions. ii) Focus on how long declarant believed he would survey. Civ. the statement must be spoken in the hush of its impending presence. a) Both rules outline conditions under which parties may introduce depos in civil cases b) A party may introduce a depo by satisfying either rule.
or (2) So far tended to subject the declarant to civil or criminal liability. i) It admits only statements against pecuniary or proprietary interest. ii) Other types of interests. C.Downloaded From OutlineDepot. b) That a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. 2. and those that extinguish a legal claim held by the speaker.com a) b) c) d) e) Statements by the declarant Statements made by med personnel and others to the declarant Nature and extent of the wounds or illness Length of time b/w the statement and the declarant’s death Opinion of med personnel who treated declarant about the declarant’s health XLIX. those that subject the speaker to civil or criminal liability. Hearsay Exception – Statement Against Interest A. What is Against Interest? i) Statement must be so far contrary to a declarant’s interest that no reasonable person in the declarant’s position would have made the statement unless believing it to be true. made while in custody. 2. or (3) To render invalid a claim by the declarant against another. A statement which was at the time of its making (1) So far contrary to the declarant’s pecuniary or proprietary interest. may well be motivated by desire to curry favor with the authorities and hence fail to qualify as against interest. 4. Other Interests. including family and physical ones. Rule 804: Hearsay Exceptions. Four important parts to rule: i) Declarant must be unavailable ii) Statement must be against the declarant’s interest at the time it was made iii) 3 ways that a statement can be against a declarant’s interest: a) Be contrary to her pecuniary or proprietary interest b) Expose her to civil or criminal liability. or c) Render invalid a claim the declarant has against another person iv) Any statement that exposes the declarant to criminal liability is admissible to exculpate a criminal ∆ only when corroborating circumstances clearly indicate the statement’s trustworthiness. The Rule 1. Statements Against Interest i) The declarant must be unavailable ii) The statement must have been against one of the interest specified by the rule iii) The statement must have been against the declarant’s interest at the time it was made iv) It offered to exculpate the accused in a criminal case. a) Advisory Committee – a statement admitting guilt and implicating another. Minimizing Guilt i) A declarant sometimes makes a statement that admits wrongdoing but minimizes her role while blaming others a) The court must decide whether the statement was really against the declarant’s interest ii) Concerns about partially incriminating statements are more prevalent when a declarant is in custody and offers to cooperate with law enforcement agents. Declarant Unavailable i) Hearsay Exceptions. the statement must have sufficient corroboration to clearly indicate its trustworthiness B. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a) Statement against interest. may help persuade the court that no reasonable person would have made the statement unless it was true. Mixed Statements 54 . In the Courtroom 1. Intro & Policy 1. 3. c) A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
and f) Nature and strength of independent evidence relevant to the conduct in question ii) Trial just determines trustworthiness under 104(a). to dissuade a witness from testifying.Downloaded From OutlineDepot. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a) Forfeiture by wrongdoing. iii) The wrongdoing must have caused the declarant to become unavailable. Forfeiture i) The declarant must be unavailable ii) The opposing party must have engaged in some wrongdoing or acquiesced in that wrongdoing iii) The wrongdoer must have intended to make the declarant unavailable iv) The wrongdoing must have caused the unavailability B. a) To prove the declarant is unavailable. Hearsay Exception – Forfeiture A. L. 2. 5. a) But when the persuasion becomes undue pressure. so a criminal ∆ who offers an exculpatory statement under 804(b)(3) bears the burden of proving trustworthiness to the judge. such as offering info about a privilege. or pressure to silence testimony and impede the truthfinding function of trials ii) Merely persuading a witness to claim a privilege or forego testifying. it sometimes is tricky to prove that the opposing party caused the unavailability. Intro & Policy 1. Exception rest on 3 requirements: i) The opposing party must have engaged or acquiesced in wrongdoing a) Does not apply to parties who use legitimate means. What is Wrongdoing? i) The courts have interpreted the “wrongdoing” language to mean – a) Coercion. procure the unavailability of the declarant as a witness. the exception does not apply. does not fall within the rule. b) Rule’s policy concerns arise only when an opposing party engages in wrongful behavior. and did. there is no reason to invoke the exception. In the Courtroom 1. C.com i) Courts must admit only portions of a criminal ∆s narrative that were against the declarant’s interest. Declarant Unavailable i) Hearsay Exceptions. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to. ∆ must prove the fact by preponderance of the evidence. Rule 804: Hearsay Exceptions. a) Trial judges must redact collateral statement. Trustworthiness When Exculpating a Criminal Defendant i) The court’s consider 6 factors in determining whether this type of statement is sufficiently trustworthy to admit under 804(b)(3): a) Whether the declarant had pled guilty before making the statement or was still exposed to prosecution (how far against the declarant’s interest the statement was at the time) b) Declarant’s motive in making the statement and whether there was a reason for the declarant to lie c) Whether the declarant repeated the statement and did so consistently d) The party or parties to whom the statement was made e) Relationship of declarant with the accuse. b) If the party did not intend to prevent a witness from testifying. whether they are neutral or shift blame to someone else. undue influence. ii) The opposing party must have intended to make the declarant unavailable a) If the declarant’s absence was an unintended consequence of the party’s wrongdoing. The Rule 1. the party’s actions trigger the forfeiture exception 55 .
Acquiescing in the Wrongdoing. Intro & Policy 1. but not to intro their own out-of-court statements. Statements by Party Opponents i) The exemption applies to every statement made by an opposing party ii) The rule is based on principles of estoppel. Personal Knowledge 56 . or (4) A statement by the party’s agent or servant re: a matter within the scope of the agency or employment. i) The forfeiture exception applies only if the opposing party committed a wrongful act with intent of making the witness unavailable. Opponents i) 801(d)(2) is broad exception to hearsay rule. that intent carries over to other cases iii) The forfeiture exception may apply when a party intimidates a potential witness. The Rule 1. iii) 801(d)(2) avoids this self-serving strategy by allowing intro of extrajudicial statements only against a party iv) The rule allows parties to intro out-of-court statements made by opposing parties. they can only offer evidence of an opponent’s statements. i) 804(b)(6) does not require proponent to show that the opposing party personally committed the wrongdoing or even caused another to commit the wrongful acts.Downloaded From OutlineDepot. Admissions i) Statements admissible under this rule do not have to be admissions ii) A party may offer any out-of-court statement made by an opposing party under this exemption a) This statement need not be incriminatory on its face. allowing introduction of most out-of-court statements by parties. or (2) A statement of which the party has manifested an adoption or belief in its truth. a) Proponent need not prove that the opposing party’s only motive was to prevent the witness from testifying. a) Prevents parties from offering evidence of self-serving statements. LI. ii) If a party acts wrongfully with the intent to silence a witness in one case. the forfeiture exception applies. it may seem exculpatory iii) Admission is a term intended to refer to any statement that an opponent seeks to introduce 3. not reliability iii) The party opponent need not have personal knowledge of the facts in the statement iv) A party can adopt a statement by signing a form. b) As long as the opposing party was motivated in part by a desire to silence the witness. made during the existence of the relationship. 3. A statement is not hearsay if: a) Admission by party-opponent. in either an individual or a representative capacity. or sometimes by remaining silent B.com 2. In the Courtroom 1. ii) Parties cannot introduce evidence of their own statements under this rule. C. Rule 801: Definitions i) Statements which are not hearsay. orally agreeing to it. The statement is offered against a party and is (1) The party’s own statement. or (3) A statement by a person authorized by the party to make a statement concerning the subject. a) Proponent only needs to show that the opposing party acquiesced in the improper behavior. 2. Intent. Hearsay Exemption – Statements by Party-Opponents A.
Admission by Adoption – Silence i) An individuals’ silence can constitute an adoptive admission. even if he made that statement w/o any personal knowledge. a) But the circumstances must be such that a reasonable person would speak up rather than remain silent. Party’s Availability Immaterial i) Hearsay exception for party statements does not require availability ii) Even when a criminal ∆ invokes the privilege against self-incrimination and declines to take the stand. iv) A party seeking to preclude her own statements has one possible objection: Rule 403. that statement may unfairly suggest guilt. made during the existence of the relationship. The Confrontation Clause 57 . and even if there is evidence that he was mistaken or lying when he said it. Statements by Party-Opponents in the Context of Multiple Parties A. iii) As long as the co-∆’s or co-π’s interests are sufficiently adverse that the other ∆ or π is offering an out of court statement against that person. 4. ii) Hearsay statements by opponents are not admitted b/c they are reliable or trustworthy. The Rule 1. Authorized Speakers i) Includes any statement by a person that the party authorized to make a statement re: the subject. Same-Side Statements i) The rule authorizes any litigant to introduce a party’s statement against a party. ii) Only allows the statement to be used against the party who made the statement. Criminal ∆s i) Admits party statement in civil and criminal cases. 801(d)(2) supports introduction of the statement iv) The litigant introduces the statement against the interests of that party. 9. a) Some use somewhat more lenient sounding standard of whether probable human behavior would have produced a response rather than silence. iii) Of the ∆ leaves the out of court statement unexplained. Spillover Effects in Civil Cases i) 801(d)(2)(A) allows a litigation to introduce a party’s own statement against that party. 5. Admission by Adoption – Signing a Document i) A party’s admission need not consist of the party’s own words. a) An agent is someone authorized to act for a party on a particular matter. they are admitted on an estoppel theory. LII. 7.Downloaded From OutlineDepot. 801(d)(2) supports admitting the statement a) 1 π may offer a co-π’s statement against that person. ii) Whether the circumstances as a whole show that the lack of a denial is so unnatural as to support an inference that the undenied statement was true. ii) It is sufficient if the party has manifested an adoption of a statement or a belief in its truth. 8. Agents i) Includes any statement by the party’s agent or servant re: a matter within the scope of the agency or employment. iii) The exemption holds responsible for every statement that he makes. 2. ii) If the ∆ takes the stand to rebut or explain the out of court statement. but not against other parties.com i) Allows intro of an opposing party’s statements even if the opposing party had no personal knowledge of what he was saying. the prosecutor may be able to introduce evidence of the prior convictions to impeach the ∆ as a witness. the gov may introduce evidence of the ∆s out-of-court statements. iii) In civil case. B. authorizes intro of an out of court statement against the party who made the statement. 6. but it does not authorize admission of the statement against anyone else.. ii) As long as 1 ∆ offers a co-∆’s out of court statement against the co-∆.
(1) These statement still are admissible only against the ∆ who made the out of court statement. Adoptions. LIII. Rule 801(d)(2): Definitions. 58 . Redacted Statements i) Bruton.com 1. i) A statement is not hearsay if a) The statement is offered against a party and is (1) A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. 2. Concealment i) Prosecutors sometime argue that a conspiracy is ongoing b/c the participants are engaged in continued efforts to conceal the crime. and the judge will instruct the jury not to consider these statements in connection with any co∆s. a) The declarant and ∆ must have agreed to use their joint efforts in some way to reach a common goal. Richardson. But the form of the statement makes it plausible that the jury will follow those instructions. Course of Conspiracy i) It includes only statements that occur during the course of the conspiracy. The Rule 1. these provisions allow the π to introduce 1 ∆s statement against all of the ∆s 2. 2. A statement in this form will inevitably will tempt the jury to fill in the blanks with the co∆’s name. concerns. ii) A conspiracy begins as soon as 2+ people agree to pursue a common goal. and Gray together create these guidelines governing the redaction of out of court statements implicating a co-∆: a) A statement that explicitly names a co∆ and implicates that co∆ on its face violates Bruton. – In all criminal prosecutions. b) A statement that simply replaces the co∆s name with blanks or other obvious marks of deletion violates Bruton. 6th Amend. In the Courtroom 1. Agents. 3. In the Courtroom 1. c) A statement that does not refer explicitly to a co-∆. The prosecutor can admit statement that satisfy this condition in their initial form or that can be redacted to reach this form. the accused shall enjoy the right to be confronted with the witnesses against him. Hearsay Exemption – Statements of Co-conspirators A. and that contains no obvious omissions tempting the jury to fill in the gaps. The statement cannot be admitted in this form. 3. Confronting witnesses includes the right to cross-examine those witnesses. iii) The courts have held that an arrest almost always ends a conspiracy.Downloaded From OutlineDepot. Statements which are not hearsay. a) Post-arrest statements usually are not admissible against coconspirators. B. Out of court statement implicating the co-∆ is so powerful that a limiting instruction is not sufficient to cure the 6th Amend violation. and Authorized Speakers i) 801(d)(2)(B) allows introduction of statement adopted by a party. C. Meaning of Conspiracy i) A party invoking the co-conspirator exception to the hearsay rule only has to prove that the declarant and the party against whom the statement is offered were members of a common venture.. relying on other evidence instead. Option to a prosecutor who obtains an out of court admission from one of several ∆s: i) Prosecutor can redact ∆s admission so that it does not implicate any other ∆s ii) Prosecutor can sever the trial and try each ∆ separately iii) Prosecutor can forego use of the statement. 4. satisfies Bruton. resolving the 6th Amend. including statement endorsed through silence ii) 801(d)(2)(C) permit introduction of statement made by a person that the party authorized to speak on that subject iii) 801(d)(2)(D) admits statements made by a party’s agent or employee iv) In some cases involving multi ∆s.
but the statement is not admissible against other members of the former conspiracy. ii) Allows a party to admit one conspirator’s out of court statement against all other members of the conspiracy iii) Admission of a conspirator’s statement does not raise any Bruton 6th Amend issues with respect to coconspirator and does not need to redact references to other members of the conspiracy. 59 .Downloaded From OutlineDepot. ii) 801(d)(2): Admission by Party Opponent a) The contents of the statement shall be considered but are not alone sufficient to establish (1) The declarant’s authority under sub(C) (2) The agency or employment relationship and scope thereof under sub (D) (3) Or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under sub (E) iii) The judge may consider the statement in determining whether the requisite relationship exists. Preliminary Determinations i) Under 104(a). iii) Unilateral steps by 1 conspirator to cover up a crime do not signal an ongoing conspiracy. it may satisfy one of the other party admission exceptions. b) The proponent must prove these facts by a preponderance of the evidence. then the conspiracy is still active and statements made by 1 conspirator during the cover-up are admissible against all members of the conspiracy. the statement need only be in furtherance of the conspiracy. whether the out of court statement was made during the course of the conspiracy. but some other evidence must also help establish the relationship Relationship to Other Rules i) The coconspirator exception is not necessary to introduce a statement against the party who made the statement. as long as the evidence has sufficient guarantees of trustworthiness and is the best available way to prove a needed fact. the judge decides whether the factual conditions necessary to support admission of a statement under 801(d)(2)(E) exist. ii) A former conspirator who brags about a completed crime may have that statement admitted against him later in court. 5. Civil Cases i) The exception is also available in vigil cases. 4. the conspiracy does not continue. iv) Even if a statement does not satisfy the coconspirator exception. 7. b) But when members of conspiracy disband and go separate ways. Rule 807 gives judges flexibility by allowing them to admit hearsay that falls outside the standing exceptions. and the judge need not give the jury a limiting instruction. LIV. a) The judge decides whether a conspiracy exists. iii) 801(d)(2)(E) does not require a coconspirator’s statement to further the conspiracy. 6.com a) If the participants are working together to conceal the crime. Intro & Policy 1. iv) Some types of concealment do occur as part of the initial conspiracy and the statements are admissible against coconspirators Furtherance of the Conspiracy i) Admits a coconspirator’s out of court statements against other members of the conspiracy only if the statements were made in furtherance of the conspiracy. and whether the statement was in furtherance of the conspiracy. a) A statement may be admissible even if it does not successfully secure some objective or otherwise advance the criminal enterprise. a) Courts usually hold that bragging statement are not in furtherance of the conspiracy and are not admissible against their coconspirators. iv) The 2 most common categories of statement that fall outside the furtherance requirement are confessions and boasts to people outside the conspiracy. Residual Exception A. ii) A conspirator’s confession to police officers usually means that the conspiracy – or that conspirator’s role in it – has ended. concealing the wrongdoing only by keeping quiet.
807 conditions can be reduced to just 3 requirements: i) Judge must determine that the proffered statement has sufficient guarantees of trustworthiness ii) Statement must be most effective way to prove a fact in consequence. whether or not the declarant appears as a witness. 60 . The Rule 1. LV. 3. and c) The general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence. In the Courtroom 1. 2. and iii) Proponent of evidence must give notice of intent to use statement at trial C. Rule 807: Residual Exception i) A statement not specifically covered by 803 or 804 but having equivalent circumstantial guarantees of trustworthiness. Attacking a Declarant’s Credibility A.Downloaded From OutlineDepot. ii) However. or (E) has been admitted in evidence. it not excluded by the hearsay rule. Rule 806: Attacking and Supporting Credibility of Declarant i) When a hearsay statement. including the name and address of the declarant. the proponent’s intention to offer the statement and the particulars of it. Probative Value i) In addition to showing statement is sufficiently trustworthy. B. despite reasonable efforts to find otherwise admissible evidence. including a) Whether a statement was made under oath b) Whether declarant had 1st hand knowledge of fact in the statement c) Whether the declarant ever recanted the statement d) Whether other evidence corroborates the statement e) Whether that corroborating evidence is subject to cross-examination f) Whether other evidence undermines or contradicts the statement g) Whether the ∆ has any incentive to lie when making the statement. a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. Trustworthiness i) Courts consider numerous factors when determining whether a statement has sufficient guarantees of trust worthiness. (D). Intro & Policy 1. The Rule 1. inconsistent with the declarant’s hearsay statement.com B. or a statement defined in Rule 801(d)(2)(C). i) Allows parties to impeach the declarants as if they were witnesses. Rule 806 gives parties a way to attack a declarant’s credibility. The Near Miss Problem i) Minority view that statement falling just outside of existing exception is covered by that exception a) Courts have rejected the near miss approach to 807 b) Courts read the rule’s opening words as referring to whether a particular proffered statement is specifically covered by 803 or 804 2. advocates urging the admission of hearsay under 807 must persuade the judge that it is more probative than any other evidence which the proponent can procure through reasonable efforts. is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. a) The credibility of the declarant may be attacked b) And if attacked may be supported (1) By any evidence which would be admissible for those purposes is declarant has testified as a witness ii) Evidence of a statement or conduct by the declarant at any time. if the court determines that a) The statement is offered as evidence of a material fact 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.
Under the circumstances. Sixth Amendment and Hearsay A. In the Courtroom 1. prejudice. The 6th Amend and the Crawford Case 1. the party is entitled to examine the declarant on the statement as if under crossexamination. 3. or interest in the case ii) Statements made by the declarant that are inconsistent with the hearsay statements – rule 613 iii) Evidence that the declarant lacks person knowledge – rule 602 – or the capacity to testify truthfully – rule 603 iv) Reputation or opinion evidence that the declarant is untruthful. the Court decided Crawford which held that the confrontation clause guarantees a procedural right – the criminal ∆s right to confront witnesses against him 2. the evidence includes i) Evidence of declarant’s bias. and the declarant is available as a witness. 2. given by a character witness – rule 608(a) v) Any criminal convictions allowed by rule 609 C. In the Courtroom 1. B.Downloaded From OutlineDepot. Testimonial Statement i) Courts’ decisions suggest that at least 3 factors contribute to the determination of whether a reasonable person would expect his statement to be used prosecutorial: a) Statements uttered solemnly or under normal circumstances are more likely than casual statements to be testimonial b) Statements to law enforcement agents or other gov employees are more likely than those to private parties to be testimonial 61 . A criminal ∆s 6th Amend right to be confronted with the witnesses against him is a right to crossexamine people who make testimonial statements against him. 3. LVI. When the prosecutor offers hearsay against a criminal ∆. the ∆ has a chance to cross-examine the declarant about the testimonial statement and any other matters. The 6th Amend does not limit the admission of non-testimonial hearsay ii) The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules. the 6th Amend constraints follow 3 rules: i) The prosecutor may introduce non-testimonial hearsay as long as those statement comply with the hearsay rules. Intro & Policy 1. 2. iii) If the hearsay statement is testimonial and the declarant is unavailable at trial. In 2004. The Crawford decision impact only restricts a prosecutor’s use of hearsay against a criminal ∆. or coconspirator (1) The rule does not apply to other out of court statements (2) 806 does not allow impeachment of a declarant when a party offers the declarant’s statement for a purpose other than to prove the truth of the matter asserted (3) 806 does not apply to out of court statements made or adopted by a party opponent 2. Evidence of Specific Acts i) Parties may impeach witnesses by cross-examining them about specific dishonest actions.com iii) If the party against whom a hearsay statement has been admitted calls the declarant as a witness. Statements that are Not Hearsay i) 806 allows impeachment of a declarant only when the declarant’s statement was a) Hearsay or b) An assertion by the party opponent’s agent. Rule 806 allows a party to attack a declarant’s credibility by introducing evidence that would be admissible if the declarant had testified as a witness. spokesperson. The procedural right is not satisfied merely b/c a judge concludes that the statement is reliable. To apply principles need to answer 3 questions: i) What is the difference b/w testimonial and non-testimonial statements ii) When is a declarant available iii) What constitutes a prior opportunity to cross-examine the declarant C. the prosecutor may offer the statement only if the ∆ has a prior opportunity to cross-examine the declarant.
Statements by the ∆ and Coconspirators i) The 6th Amend does not prevent the prosecutor from using a ∆s out of court statements against him. and the 6th amend often bars admissions of these statements. and b) The ∆ had a prior opportunity to cross-examine the declarant about the statement. and other hearings. the ∆ must have had a similar motive to cross-examine the witness at the prior proceeding. (1) If officers seek info to protect a victim. c) Criminal ∆s have no opportunity to cross-examine grand jury witnesses. 2. 62 . so the 6th Amend often blocks prosecutors from using these statements d) ∆s have no opportunity to cross-examine individuals who give confessions or other statements to police. Two Exceptions: Dying Declarations and Forfeiture i) The confrontation clause requires that a ∆ have the opportunity to confront the witnesses who give testimony against him.Downloaded From OutlineDepot. d) Some answers to police officer’s initial inquiries at the scene of a crime may not be testimonial. iii) Statements to Law Enforcement a) Most statements made to law enforcement agents about a crime are testimonial b) 2 types of statements to law enforcement present special problems under Crawford: (1) Statements to 911 operators and (2) Statements made to police when they 1st arrive at the scene of a crime. real or feigned. except in cases where an exception to the confrontation right was recognizes at time of the founding. preserve their own safety.com c) Statements made to prove a fact are more likely than those made for some other purpose (such as gaining help) to be testimonial ii) Formal statements during litigation a) Testimonial statements clearly include all testimony at trial. grand jury proceedings. b) Witnesses who assert a lack of memory. ii) Key points that affect admissibility of testimonial statement include: a) Witnesses who claim privileges or refuse to testify are unavailable. (2) They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency. responses to their questions will resemble initial statements to a 911 operator: (i) They will lack purpose and formality that mark testimonial statements. 3. iv) Statements to Private Parties a) The SCOTUS has not decided whether statement to private parties are ever testimonial. are unavailable. and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Unavailability and Prior Opportunity to Cross-Examine i) Even if a statement is testimonial. c) Court held in Davis that the purpose of the statement made to law enforcement agents may determine whether they are testimonial: (1) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. b) Statements to friends and neighbors and statements to physicians in the course of receiving treatment are not testimonial. iii) For the prior opportunity to suffice. as well as statements made in depos and affidavits. or otherwise end a threatening situation. v) Statements Admitted to Prove a Point Other Than the Truth of the Matter Asserted a) Confrontation Clause does not bar use of testimonial statements for purposes other than establishing the truth of the matter asserted. 4. the prosecutor may admit the statement if the declarant is available at trial or the prosecutor shows a) The declarant is unavailable.
e) 804(b)(1) – Prior testimony. In these rare cases. Courts use the final clause of 803(6) to exclude business record prepared for litigation. d) 803(7) and 803(10) – absence of entries in business and public records. This is a founding era exception and it rests on the assumption that the ∆ waived his confrontation rights by making the witness unavailable. they trigger the ∆s confrontation rights b) 803(3) – statements of mental or physical condition. 63 . raise confrontation clause issues in a SIGNIFICANT subset of cases: a) 803(1) and (2) – present sense impressions and excited utterances. The absence of an entry is not a statement. This testimony is admissible in criminal cases only if the ∆ had an opportunity and similar motive to cross-examine the declarant on the prior occasion f) 804(b)(2) – dying declarations. The Sup. In unusual cases. c) 803(5) – past recollection recorded. iv) These exceptions to the fed hearsay rule. d) 803(18) – learned treatises. NEVER raise confrontation clause issues: a) 801(d)(1) – prior statements by witnesses. But when made to law enforcement agents for the purpose of creating evidence for trial. so it cannot be testimonial. iii) SCOTUS has not decided a dying declaration case under Crawford 5. and similar compilations. Under some circumstances. but 803(6) is a broad exception. Law enforcement agencies may publish and rely upon some lists that include testimonial evidence. these statement are non-testimonial b/c they are made to private parties and/or for the purpose of obtaining medical care. When made to private parties.com ii) Court held that the forfeiture exception applies only when a witness is unavailable. stock market reports. they satisfy the 6th Amend when made to law enforcement agents for the purpose of obtaining immediate aide. the ∆ caused that unavailability. The Confrontation Clause and the Hearsay Rule i) Out of court statements are admissible only if they satisfy both the confrontation clause and the hearsay rule ii) The fed hearsay exceptions that. b) 803(6) – business records. the admission of learned treatise might violate the confrontation clause. a list might satisfy this exception but not the confrontation clause.Downloaded From OutlineDepot. and the ∆ acted with the specific purpose of preventing the witness from testifying. In most situations. These statements are admissible only if the declarant is on the stand and subject to cross-exam. In rare situations like this. Most learned treatises address general subjects rather than gathering evidence to convict a particular ∆. a law enforcement agency might publish a book documenting the crimes of notorious criminals. a statement admitted under this exception could qualify as testimonial. in an unusual situation: a) 803(4) – statements made for medical treatment or diagnosis. under current law. c) 803(17) – Market reports and commercial publications. Similarly. these statement probably present no confrontation clause problems. In those rare cases. The ∆ may not complain about confronting himself or others speaking on his behalf. g) 804(b)(6) – forfeiture. thus the pt would not expect them to be used in court. which satisfies the confrontation clause. This would exclude most testimonial statements. b) 801(d)(2) – party-opponent admissions. and a few courts have held that identity of abusers is pertinent to treating victims of sexual or domestic abuse. such as when made to law enforcement agents gathering evidence for prosecution. Includes statements made for purpose of obtaining diagnoses related to litigation. Court has held that these statements raise no confrontation clause issues. they are telephone directories. iii) 4 def exceptions RARELY raise confrontation clause issue but might. This is a founding era exception that the sup court appears to have grand fathered into the confrontation clause. and courts display some difference in application. These statements are admissible under the hearsay rule only if the declarant is on the stand and subject to cross-exam. The lists and tabulations commonly admitted under this exception contains no testimonial statements.
In a civil action or proceeding. such as when made to private parties. especially when the prosecutor attempts to introduce 1 perp’s confession against another participant in the crime. Rule 201 allows the judge to take judicial notice of some fact. iii) When discretionary. or other group do not qualify as generally known. Before Crawford. but it not required to. Judicial Notice A. In a criminal case. vii) Instructing Jury. C. even though they may not be well known in other parts of the country. accept as conclusive any fact judicially noticed. the court shall instruct the jury to accept as conclusive any fact judicially noticed. This exception restricts the admission of hearsay against criminal ∆s. Other statement admitted under this exception similarly could raise confrontation issues. iv) When mandatory. Subject to Reasonable Dispute i) Facts that have been judicially noticed include: a) The fact that credit cards play a vital role in American society b) The fact that bingo is a senior citizen pastime. A court shall take judicial notice if requested by a party and supplied with the necessary info. and other statements that a court might deem testimonial. it may be testimonial. Generally Known i) Indisputability alone does not render a fact suitable for judicial notice. The exception.Downloaded From OutlineDepot. f) 807 – residual exception. the request made be made after judicial notice has been taken. ii) A fact must be generally known to the public. satisfying CC concerns in many cases. Even if a doc is 20+ years old. vi) Time of taking notice. Capable Determination 64 . but those statements clearly are testimonial after Crawford. In the Courtroom 1. a) The judge will refuse to take judicial notice if: (1) The fact is subject to reasonable dispute. occupation. courts often used this rule to admit grand jury testimony. d) 803(16) – Ancient documents. B. The Rule 1. This rule governs only judicial notice of adjudicative facts ii) Kinds of facts. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. Under other circumstance. police reports. Intro & Policy 1.com these statements are testimonial and raise CC problems. observations by gov employees other than law enforcement personnel. the court shall instruct the jury that it may. c) The fact the KKK has a history of violence against African Americans 2. 3. Judicial notice may be taken at any stage of the proceeding. Many statements against interest trigger 6th Amend concerns. In the absence of prior notification. but those to gov agents often are. LVII. c) 803(8) – public records. Rule 201: Judicial Notice of Adjudicative Facts i) Scope of rule. still admits ministerial law enforcement records. they are not testimonial. or b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. iii) Facts that are known by members of a particular religion. e) 804(b)(3) – statement against interest. and other testimonial statements do not lose their testimonial character with time. Statements against interest made to private parties probably are not testimonial. Confessions. A judicially noticed fact must be one not subject to reasonable dispute in that it is either a) generally known within the territorial jx of the trial court. or (2) The fact is neither generally known or within the territorial jx of the court nor readily verifiable from reliable sources v) Opportunity to be heard. whether requested or not. iv) Allows court to take judicial notice of facts that are generally known within the court’s jx. A court may take judicial notice.
and many other facts of this nature. Lay Opinions A. the judge will instruct the jury to accept that fact as conclusive. a) The jurors in a criminal case retain the right to reject facts that the judge considers indisputable. iii) Judicial notice of a judgment extends only to the terms of the judgment. technical. 201(b) allows the court to take judicial notice of the fact if it is both indisputable and capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. ii) In criminal cases. a) Permits judicial notice even while a case is on appeal Judicial Notice and Stipulations i) Judicial notice is not the only way to admit undisputed facts. they can make a stipulation that the fact is true. 5. 6. Rules 701-706 describe when opinion testimony is admissible. (1) But it still eliminates the need to prove particular facts in the courtroom. the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are 65 .com i) Even if a fact is not generally known. Rule 602 requires all witnesses to testify based on their “personal knowledge. Judicial Notice on Appeal i) Allows a court to take judicial notice at any stage of the proceeding. distances b/w cities. a) Parties may rely upon books. Rule 701: Opinion Testimony by Lay Witnesses i) If the witness is not testifying as an expert. Instructing the Jury i) When the judge take judicial notice of a fact in a civil trial. . not to facts underlying the decision. B. 3. ii) Reasons for stipulations: a) Save trial time b) Contesting every element of a claim or crime may damage a party’s credibility c) Some stipulations avoid detailed proof of fact that will engender sympathy or create powerful emotions on the party of the jury d) Some facts are beyond dispute and would be a waste of time to contest those facts 4. business records. interest rates. public records. ii) Courts have taken judicial notice of prices. although it may rest on distinctive experiences in the witness’s life. Supporting Sources i) When a party offers a source to show that it is easily verifiable under 201(b)(2). Rule 701 governs the admissibility of opinion testimony by lay witnesses 2. 7. and other types of hearsay w/o showing that the source fits within one of the hearsay exceptions. the source does not have to be admissible. b) Usually the party who proposes the stipulation will write out the exact language for the jury. a) If both parties agree on a fact. Judicial and Agency Decisions i) Internal judicial routines usually do not satisfy the requirements for judicial notice. 8. Other Situations i) Occasionally. The Rule 1. LVIII. Lay Opinions – The Opinion: i) Must be based on personal observation ii) Must be helpful to the jury iii) May not rest upon scientific. the judge instructs the jury that it may accept a judicially noticed fact as conclusive.” 2. ii) Court and agency decisions easily fit within Rule 201 a) Decisions are readily verifiable from reliable sources and are not subject to reasonable dispute. or special knowledge. 9. a fact seems indisputable although it is neither generally known nor readily verifiable from accurate sources. Intro & Policy 1.Downloaded From OutlineDepot.
For much of 20th century. judges measured reliability by asking whether the principle underlying an expert’s opinion was sufficient established to have gained general acceptance in the particular field in which it belongs. ii) Must establish the witness has personal knowledge of the opinion and the facts it draws upon it. Laying a Foundation i) Before a lay witness gives an opinion based on particular knowledge. 4. iii) Lay opinions must be non-technical. C. ii) Experts may give lay opinions just like other witnesses.U. What Subjects are Appropriate for Expert Testimony? A. he must lay a foundation establishing that he has the info required to form the opinion. and iv) The evidence must satisfy Rule 403’s general balancing test. IN 1923. To qualify as expert testimony (702) i) The principles and methods defining the field must be reliable ii) The expert must have applied those techniques reliably to the facts iii) The expert testimony must fit the facts in a way that assists the factfinder. and it is the trial judge that is to determine whether any type of evidence is admissible under these tests. 5. 3. Lay Opinions and Expert Opinion i) Opinions based on everyday observations and experience are lay opinions. technical or other specialized knowledge. or drunk. 4.com a) Rationally based on the perception of the witness. 66 . Experts Giving Lay Opinions i) The rules allow any witness with personal knowledge of an event to give a lay opinion related to that event. and b) Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. the judge must determine that both the field of expertise and the expert’s application of that knowledge are reliable. 3. while experts may offer opinions based on a broader range of facts ii) Lay opinion must help the fact finder. 2. sad. Expert witnesses give testimony based on their scientific. ii) Judges allow lay witnesses to give opinions based upon their distinctive experiences. LIX. Helpfulness i) Lay opinions are admissible only if they “help” the fact finder ii) Judges routinely allow lay witnesses to describe individuals as happy. 7. technical. In the Courtroom 1. 6. General acceptance test stemmed from Frye v . as long as those events don’t reflect specialized training. and c) Not based on scientific. Intro & Policy 1. The Frye test established a bright line and was simple for courts to apply i) Judges looked to members of a scientific or technical field to determine whether a witness’s approach was generally accepted within that field. 2 types of opinion witnesses: lay witnesses and expert witnesses. ii) Rules 401 and 403 set out specific tests for balancing relevance with undue prejudice or confusion. 2. angry. 3. iii) Lay witnesses may draw reasonable inferences from their experiences. 3 requirements that lay witnesses must satisfy when offering an opinion i) Opinion must be rationally based on the perception of the witness a) Perception requirement resembles the personal knowledge condition of Rule 602 b) Rule 701 is obligation to underscore a key distinction b/w lay witnesses and experts: (1) Lay witnesses testify only about matters they have directly perceived. iii) Effective advocacy may sway the judge’s ruling. Jurors tend to trust experts if the experts has a lengthy resume and uses sophisticated jargon.S. or other specialized knowledge within the scope of Rule 702.Downloaded From OutlineDepot. 4. Before allowing the expert to testify. but must use a process of reasoning familiar in everyday life – cannot invoke a process of reasoning which can be mastered only by specialists.
3. not a closed circle of experts. and those principles and methods must satisfy Daubert’s reliability test. Expert testimony must assist the trier of fact i) A party may not offer an expert opinion. technical or other specialized knowledge. In the Courtroom 1. Reliable Pinciples i) Rule 702 demands that an expert base her testimony on reliable principles and methods. experience. a) The trial judge now decides whether an expert’s approach is sufficiently reliable to present to the jury. iii) Daubert does not require trial judges to admit any evidence on a scientific issue. technical. 15 states + D. a) A party must be able to point to the principles and methods underlying an expert’s testimony. may testify thereto in the form of an opinion or otherwise. the Court suggested. In 1993. the primary rule governing expert testimony 9. (1) The last factor incorporates the Frye’s general acceptance test iii) Enumerated factors are not exhaustive. The court must agree that the witness qualifies as an expert before the witness offers an opinion on technical or scientific matter. iv) Court based its Daubert decision on its interpretation of Rule 702. An expert is a witness who offers scientific. a witness qualified as an expert by knowledge. Difference b/w Frye and Daubert i) The Frye rule allowed scientists and other experts to set bounds of reliability within their fields a) Courts admitted expert testimony based on whether the expert’s approach gained general acceptance within the field ii) Daubert (current federal rule) shifts this gatekeeping role to judges. still apply the Frye test. training. i) Daubert v. Rule 702 imposes 2 reliability hurdles that all expert testimony must surmount: i) The testimony must stem from reliable principles and methods. and c) the witness has applied the principles and methods reliably to the facts of the case 2. Supreme Court announced new test for determining admissibility of expert testimony. ii) To determine whether the testimony is reliable. 10. if the expert’s perspective doesn’t fit the facts of the case ii) The fit requirement is stricter than mere relevance 4. B. Reliable Application i) Rule 702 requires 2 types of reliability: 67 . The Expert’s testimony must rest on sufficient facts or data 6. or education. The Rule 1.com 8. Rule 702: Testimony by Experts i) If scientific. no matter how valid the underlying science. iv) Despite Daubert’s flexible test. Merrell Dow.Downloaded From OutlineDepot. ii) The principles underlying an expert’s testimony do not have to satisfy all of the factors listed in Daubert. skill. C. b) The judge relies upon variety of factors that include general acceptance. determining the reliability of expert testimony. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. 5. if a) The testimony is based upon sufficient facts or data b) the testimony is the product of reliable principles and methods. judges may consider any factor useful in determining the scientific validity and this the evidentiary relevance and reliability – of the principles that underlie proposed expert testimony. Court stressed that judges. trial judges reject many types of expert testimony as unreliable. 2. and ii) The witness must have applies the principles and methods reliably to the facts of the case.C. judges should consider factors such as: Daubert Test a) Whether the theory or technique has been tested b) Whether it has been subject to peer review and publication c) The technique’s error rate d) The existence of standards controlling the technique’s application e) Whether the theory or technique has been generally accepted in the relevant scientific community.
4. Rule 403 i) Rule 403 requires the trial judge to exclude any other evidence when the danger of prejudice.com a) Reliable principles underlying the expert’s approach. Has the technique been reliably applied? 5. Is the evidence based on scientific. does the danger of unfair prejudice. Are the principles and methods supporting the evidence reliable? Use the Daubert crieteria as guidelines. the ∏ may lack sufficient evidence to go to trial. confusion. 8. and b) Reliable application of those principles to the facts of the case. and potential prejudice of expert testimony in a pretrial proceeding – Daubert Hearing. iii) If an expert’s testimony does not survive a Daubert hearing. shielding the jury from potentially misleading or prejudicial evidence. Does the evidence fit the facts of the case? Will it help the fact finder? 68 . the evidence must assist the trier of fact or. ii) The fit requirement sometimes leads courts to reject expert evidence related to causation. or misleading the jury substantially outweigh the probative value? 6. Daubert poses few problems – if a method is generally accepted as Frye require. D. iv) A party need not satisfy all of the Daubert criteria to show the evidence is reliable. ii) Judge’s frequently evaluate the realibility. Supplementing the Daubert Factors i) Court’s listed factors were not exclusive. iii) Rule 403 forms the 3rd step in a 3 part analysis that many courts undertake when assessing expert evidence: a) Is the evidence reliable. the judge in weighing possible prejudice against probative force under Rule 403 of the present rules more control over experts than over lay witnesses. 5.Downloaded From OutlineDepot. 3. must fit the facts of the case. the parties may present witnesses supporting or attacking the proposed evidence. or misleading the jury substantially outweighs the evidence’s probative value. The trial judge serves as a datekeeper. 2. ii) Because of risk of misleading and difficulty in evaluating. Does the Expert Evidence Fit? i) Even if the expert evidence passes Daubert’s 2 reliability tests. 3. iii) If atty can make his case for reliability based on those factors listed. Daubert Hearings i) A judge’s evaluation of scientific or technical evidence can be time consuming. ii) The criteria that a court considers when assessing reliability may vary depending on the type of expert evidence at issue. conclusion of the issues. Rule 702: The Pathway Through the Expert Evidence Gate 1. This purpose controls the flexible inquiry outlined below. both in its underlying principles and its application to the case? b) Does the evidence fit the case and held the trier of fact? c) Even if the evidence satisfies these requirements. ii) One factor cited by several courts is whether the expert developed an idiosyncratic approach specifically for the litigated controversy or as part of a broader program of research. iv) Application of Rule 702 may make or break a party’s cause. fit. Was There a Revolution? i) For well established scientific and technical methods. opponents may not even challenge the testimony’s reliability. technical or other specialized knowledge? If so. and courts remain open to considering new factors. that is the safest avenue toward admitting expert testimony. judges should consider any factor illuminating the reliability of expert testimony. 7. but look to other factors if appropriate for the field: i) Prior testing of the technique or theory ii) Peer review and publication iii) Error Rate iv) Controlling standards v) General acceptance 4. Technical and Other Specialized Knowledge i) Daubert’s gatekeeping approach applies to all types of expert testimony. Rule 702 applies.
a) The atty who called the expert lays the foundation for the witness’s expertise by asking questions about the witness’s credentials and qualifications (1) The atty may use leading questions even in direct b/c the atty is eliciting uncontested background info about pedigree. or other specialized knowledge will assist the trier of fact to under the evidence or to determine a fact in issue. A witness mist be qualified before offering evidence about scientific. 3. b) Most judges allow opposing counsel to voir dire the witness (1) The opp. technical. they may draw inference from the evidence and state conclusions based on special training or experience. or education. Experts are the only witnesses who can certify documents as learned treatises under Rule 803(18). or other specialized knowledge. 3. LXI. LX. experience. training. a) This may include evidence that is not admissible.com 6. training. The Rule 69 . the expert may remain in the courtroom even if the judge excludes other witnesses under Rule 615. as long as experts in the field reasonably rely upon that evidence. If the expert’s testimony requires knowledge of other trial testimony. may testify thereto in the form of an opinion or otherwise. Witness may establish her qualifications by point to a # of different factors: knowledge.Downloaded From OutlineDepot. Bases of Expert Opinion A. or education. 4. experience. i) The treatises may be read to the jury and considered for the truth of the matter asserted even though they are hearsay. skills or expertise. 5. Experts do not have their opinions exclusively on personal observation – they rely on a wide range of date. or iii) Evidence that has not been admitted at trial. Rule 702: Testimony by Experts i) If scientific. technical. Intro & Policy 1. B. How to Qualify an Expert i) 3 Stages to qualifying an expert. the expert may reveal inadmissible evidence to the jury. (2) The atty will then move that the judge certify the witness as an expert. (1) Parties may shorten the process by stipulating the witness is an expert. Is the evidence excludable under Rule 403? Do unfair prejudice. c) Third. The Rule 1. i) Education is not essential to qualify as a witness. Qualifying Experts A. Expert may do more than give commonsense opinions. 2. 2. Counsel then either objects or not to the certifying of the witness as an expert. including info such as hearsay. the judge rules on the motion to certify the witness. Bases of Expert Opinions: i) Personal Knowledge ii) Evidence presented at trial. confusion. or potential to mislead jury substantially outweigh probative value? 7. Expert Evidence that clears all hurdles is admissible. Counsel has the chance to ask the witness questions in order to test his credential (2) Opp. a witness qualified as an expert by knowledge. skill. such as hearsay or character evidence. 2. skill. Expertise Includes Experience or Informal Training i) Witnesses may qualify as experts in areas b/c of their independently developed knowledge. i) Under some circumstances. B. In the Courtroom 1.
ii) The party opposing an expert always has the right to ask the expert to divulge the basis of her opinion during cross-exam. 4. In the Courtroom 1. i) 705 allows an expert to offer an opinion. it allows intro of an outof-court statement for a purpose other than to prove the truth of the matter asserted. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. iii) The party sponsoring the expert can try to admit facts during direct exam. Primary value of 705 is that an expert may state a conclusion first. C. b) Rule 703 directs judge to apply reverse 403 balancing test (1) The judge will allow the expert to reveal the inadmissible facts supporting his opinion only if the probative value of admitting those facts substantially outweighs any prejudice cause by the admission. Admitting Underlying Facts that are Otherwise Inadmissible i) Expert’s opinion is admissible even when the underlying facts are not. Rule 705: Disclosure of Facts or Data Underlying Expert Opinion i) The expert may testify in terms of opinion or inference and give reasons therefore w/o first testifying to the underlying facts or data unless the court requires otherwise. they are subject to 2 forms of abuse a) Attys sometimes insert facts into hypos that have no been proven b) Attys sometimes use a long hypo as an opportunity to sum up the case. the expert must clarify what parts of the testimony support her opinion. capturing and focusing the jury’s attention. 3. a) Party will argue the knowledge of the underlying facts is essential for the jury to understand and evaluate the expert’s opinion. Reasonably Relied Upon by Experts in the Field i) Experts frequently rely upon data that would not be admissible in court a) Rule 703 allow experts to base opinions on this info as long as experts in the field reasonably rely upon that data ii) Reasonable Reliance Standard a) Experts in the witness’s field must in fact rely upon the type of evidence that the expert used. 2. ii) Although hypos are permissible. Attendance at Trial i) Trial attendance sometimes is the most efficient way for an expert to obtain necessary facts. (i) The judge will give the jury a limiting instruction to clarify. ii) When an expert does base an opinion on trial testimony. Rule 703: Bases of Opinion Testimony by Experts i) The facts or date in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. and b) that the relief must be reasonable. 70 . 3. or minimal prejudice. ii) Rule 703 only takes into consideration the probative value of the evidence in assisting the jury to evaluate the expert’s opinion. to support disclosure. iii) Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. even if the evidence supporting the opinion is inadmissible. 2.com 1.Downloaded From OutlineDepot. 4. rather than presenting facts to an expert. ii) The expert may in any even be required to disclose the underlying facts or data on crossexam. i) Reverse of Rule 403 – requires a strong showing of probative value. Hypothetical Questions i) Another way an expert to base an opinion on facts made known at trial is for the expert to testify in response to a hypo. ii) If of a type reasonably relief upon by experts in the particular field in forming opinions or inferences upon the subject. (2) Rule 703 doe not create a new hearsay exception. The court may allow experts to disclose the otherwise inadmissible evidence if the probative value of that evidence would substantially outweigh its prejudicial effect. they are previewing their opposing argument.
the photo or video offers a fair and accurate representation of the scene 6. the party calls a series of witnesses. a party offering these docs does not need to lay any foundation other than the doc 71 .Downloaded From OutlineDepot. 3. each of whom describes how they obtained the item and passed it to the next person in the chain. Authentication does not establish compliance with other evidentiary rules. Distinctive Features i) If a piece of evidence has distinctive characteristics. Chain of Custody i) Parties often rely upon chain of custody to authenticate evidence. In the Courtroom 1. a witness who participated in the transaction may have to identify the other speaker by voice. 5. iii) Parties also use chain of custody testimony to establish that the condition of evidence has not changed in a way that would affect the case. Photos and Videos i) Any witness who is familiar with the photographed scene or videotaped events may authenticate them. Rule 902: Self-authentication i) Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following a) 12 categories of document are self-authenticating 3. the proponent must identify the speakers and provide other authenticating info. Authentication is necessary to establish relevance. 2. Rule 901: Requirement of Authentication and Identification. ii) Before playing a lawfully obtained recording in the courtroom. i) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. ii) To demonstrate a chain of custody.com LXII. a) 901(b)(1) – Testimony of a witness with knowledge that a matter is what it is claimed to be. Authentication places the evidence in the proper context. iii) Any witness who is familiar with a person’s voice may identify that voice in court. 3. 4. a witness familiar with the item can identify it in court. Authentication A. Voice Identification i) If a relevant transaction occurred by phone. based on his person knowledge. 4. the following are examples of authentication or identification conforming with the requirements of the rule 2. Public Records i) Under Rule 902 some docs authenticate themselves. Authentication does not guarantee the identity of genuiness of any evidence. ii) The witness performing the identification simply testifies that. ii) By way of illustration only. Handwriting i) 5 avenues for authenticating handwriting a) The person who authored the note or signature may identify the writing as her own b) Some who saw the act of writing may identify the person who wrote or signed the document c) Expert witness may identify handwriting by comparing the disputed writing with a sample that has been verified by other means d) Trier of fact may compare the writings and draw their own conclusion e) Allows lay person who is familiar with another person’s handwriting to identify that handwriting in court. The Rules 1. and not by way of limitation. Intro & Policy 1. 5. B. Rule 903: Subscribing Witness’ Testimony Unnecessary i) The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jx whose laws govern the validity of the writing. Authentication offers the jury some assurance that a piece of evidence is genuine. 2. C.
and motion pictures. photostating. Rule 404 prevents the victim of an auto accident from proving the ∆s fault by arguing the ∆ had a propensity to drive recklessly 2. Photos include still photos. video tapes. or photo to prove contented of that doc. mechanical or electronic recording. 11. substance. 9. contained in Art X of the fed rules.Downloaded From OutlineDepot. The best evidence rule. Intro & Policy 1. and Photos i) Rule 1001: Definitions a) For purposes of this article the following definitions are applicable: (1) Writings and recordings. Admissions and Stipulations i) In fed civil trial. LXIII. Best Evidence A. 10. ii) Proponent only needs to offer enough info for a reasonable jury to conclude that the evidence is genuine. words. Evidence to Support a Finding i) A party does not have to provide absolute proof of identity to authenticate evidence. iii) Foreign records permits self-authentication only in civil cases. The Rules 1. Business Records i) Allows self-authentication of business records.com ii) A party may introduce an original public doc from any fed. recording. typewriting. recording. Circumstantial Evidence i) Parties may identify evidence through appearance. Writings and recordings consist of (i) Letters. state. 2. magnetic impulse. a) The signature and seal substitute for live testimony authenticating the doc. 72 . or numbers. 7. printing. or photo. b) Many newspaper articles and periodicals constitute inadmissible hearsay. or photo is required. or their equivalent (ii) Set down by handwriting. a) Content of a conversation or e-mail provides 1 type of circumstantial evidence about the identity of the speaker or author. taken in conjunction with circumstances. parties authenticate most pieces of evidence before trial. Newspapers and Periodicals i) Newspapers and periodicals are also self-authenticating under 902(6). or other distinctive characteristics. recording or photo is more detailed and difficult to describe than most events or objects that witness relate in the courtroom ii) Writings… are relatively easy to produce. internal patterns. or local gov unit if that doc bears both a signature attesting to the doc’s authenticity and the official seal of the gov unit. a) A party may introduce a relevant newspaper or periodical w/o offering extrinsic evidence that the periodical is what it purports to be. the original writing. except as otherwise provided in these rules or by act of congress. The best evidence rule rests on 3 policies i) Content of a writing. x-ray films. Recordings. especially since modern rules allow for liberal use of duplicates iii) Rule reduces opportunities for fraud and distortion B. ii) A certificate satisfying the requirements of the business records exception also authenticates the doc. Writings. Offered to Prove the Content i) Rule 1002: Requirement of Original a) To prove the content of a writing. ii) Parties may rely on circumstantial evidence to authenticate telephone conversations or emails. recording. article X requires the party to introduce the original doc. or other form of data compulation (2) Photos. 3. is an exception to this approach i) When a party relies upon a writing. 8. photographing. contents.
may be proved by (1) Copy. or of a doc authorized to be recorded or filed and actually recorded or filed. or (iii) By means of photography. b) w/o accounting for the non-production of the original 7.Downloaded From OutlineDepot. Requirement of an Original i) Rule 1001(3) a) For purpose of this article the following definitions are applicable: (1) Original. recording. Public Records i) Rule 1005: Public Records a) The contents of an official record. and that party does not produce the original at the hearing. is an original. or (2) No original can be obtained by an available judicial process or procedure. or photo is not closely related to a controlling issue 6. or (iv) By mechanical or electronic re-recording. or photos may be proved (1) By the testimony or depo of the party against whom offered or (2) By that party’s written admission. a) The original is not required. or (vi) By other equivalent techniques (2) Which accurately reproduces the original. or (4) The writing. any printout or other output readable by sight. that party was put on notice by the pleadings or otherwise. unless the proponent lost or destroy them in bad faith. An original of a writing or recording is (i) The writing or recording itself or (ii) Any counterpart intended to have the same effect by a person executing or issuing it (iii) An original of a photo includes the negative or any print therefrom (iv) If data are stored in a computer or similar device. Exceptions i) Rule 1004: Admissibility of other evidence of contents. recording. shown to reflect the data accurately. and other evidence of the contents of a writing. including data compilations in any form. or (3) At a time when an original was under the control of the party against whom offered. or (v) By chemical reproduction. Proof by Admission i) Rule 1007: Testimony or Written Admission of Party a) Contents of writings. 3. recording. or photograph is admissible if – (1) All originals are lost or have been destroyed. b) Writing… the party chooses an item falling in one of those categories as a convenient option for proving some fact. certified as correct in accordance with rule 902 or (2) Testified to be correct by a witness who has compared it with the original ii) 73 . 4. A duplicate is a counterpart (i) Produce by the same impression as the original. Duplicates i) Rule 1001(d) a) For purpose of this article the following definitions are applicable (1) Duplicate.com 2 Categories of cases in which parties prove the content of a writing… a) Writing… has independent legal significance. ii) Rule 1003: Admissibility of Duplicates a) A duplicate is admissible to the same extent as an original unless (1) A genuine question is raised as to the authenticity of the original or (2) In the circumstances it would be unfair to admit the duplicate in lieu of the original 5. or (ii) From the same matrix. including enlargements and minis. if otherwise admissible. that the contents would be a subject of proof at the hearing.
4. The originals or duplicates. recordings. recordings. 2. Rule 606(b): Competency of Juror as Witness i) Inquiry into validity or verdict or indictment. Payment may be proved w/o producing the written receipt. or photos. The court may order that the be produced in court. ii) But a juror may testify about a) Whether extraneous prejudicial info was improperly brought to the jury’s attention b) Whether any outside influence was improperly brought to bear upon any juror. or both. C. then the best evidence rule compels production of the doc. a juror may not testify as to a) Any matter or statement occurring during the course of the jury’s deliberations or b) To the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or c) Concerning the juror’s mental processes in connection therewith. and the opponent claims that the party should have followed the best evidence rule. summary or calculation. ii) Allows inquiry into external influences on a verdict such as a juror conducting outside research or investigation. one of the jurors possessing prior knowledge about a party or a witness that was not disclosed. In the Courtroom 1. C. or photograph. jurors reading media accounts about the case. Intro & Policy 1. or c) Whether there was a mistake in entering the verdict onto the verdict form. Extraneous Info and Outside Influences i) An influence is external only if it comes from outside the jury room rather than originating with the jurors themselves. 9. Jurors give the judicial process legitimacy B. or photos which cannot conveniently be examined in court may be presented in the form of a chart. 2.com b) If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence then other evidence of the contents may be given 8. The most perplexing issues that arise under the best evidence rule occur when a party attempts to prove a fact w/o reference to a writing. LXIV. The Rule 1. or photo produced at trial is the original. or (3) Whether other evidence of contents correctly reflects the contents c) The issues is for the trier of fact to determine as in the case of other issues of fact. Role of the Jury A. shall be made available for exam or copying. Summaries i) Rule 1006: Summaries a) The contents of voluminous writings. under these rules depends upon the fulfillment of a condition of fact. Resolution of these objections turns on what the party offering the evidence is trying to prove. iii) A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. 3. when an issue raised (1) Whether the asserted writing ever existed or (2) Whether another writing. jurors reviewing docs or items that had not been admitted into evidence. Testimony by Non-Jurors 74 .Downloaded From OutlineDepot. the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104 b) However. In the Courtroom 1. Who decides? i) Rule 1008: Functions of Court and Jury a) When the admissibility of other evidence of contents of writings. recording or photo has independent legal significance. recording. If the writing. Upon inquiry into the validity of a verdict or indictment. recording. by other parties at reasonable time and place. and any kind of contact b/w jurors and outsiders re: the case.
the judge will redact any description of how the outside influences affected the juror’s mental processes or the jury’s deliberations. 75 . Mental Processes of Jurors i) Precludes a juror from testifying about her thoughts and feelings during deliberations. 3.Downloaded From OutlineDepot. ii) A juror cannot testify that she felt threatened or pressured by other jurors iii) Nor can the juror testify about what she believes she would have decided if other evidence had been presented at trial.com i) Only restricts the competence of jurors to offer evidence about their decision making. iv) Even when a juror offers testimony about improper external influences.