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Rule 102: Purpose and Construction: the idea is that if we have a reasonable fair/efficient system, then at the end of the day, justice/truth will come out. Burden of Proof: 1. Burden of Production – test: Evidence sufficient to support a finding about the element of the crime charged a. If a party fails to meet the burden of production, the case does not go to the jury; case dismiss. 2. Burden of Persuasion – test: Persuasion of the jury that the facts are in such a way to support a verdict. FRE 104 Preliminary Questions 104(a)→Where the preliminary fact relates to the legal admissibility of the offered evidence (e.g., the qualifications of an expert), the issue is determined by the judge. The proponent of the evidence must establish a preliminary fact by a preponderance of the evidence. o Has to do with competence, privilege, hearsay etc – Preponderance of evidence - the question is whether to allow evidence into trial as evidence: What information needs to be consider What rule applies What standard of proof to apply o Examples With experts, the proponent must persuade the judge the expert possesses expert qualifications With hearsay, the proponent must persuade the judge of the existence of any facts essential to bring the evidence within some hearsay exception With duplicates, the proponent must show by a preponderance of the evidence the original was lost 104(b)→Where the preliminary fact goes to relevancy, credibility, or weight of the evidence, the trial judge initially determines only whether there has been a minimal showing of the preliminary fact. The ultimate determination of the preliminary fact is for the jury. o Only admissible evidence may be reviewed How do you decided between 104(a) & 104(b)? o If the evidence is absolutely irrelevant without the preliminary fact, then 104(a) or 401 applies o If the evidence is relevant without the preliminary fact, then 104(a) applies
Trial 1. 2. 3. 4. 5. 6. 7. 8. 9.
Overviews: Voir Dire (Jury Selection) Opening statement (P –D) P’s Case-in-Chief (P direct and D crosses) a. Enough evidence must be brought for or case dismiss D’s Case-in-Chief (D directs and P crosses) P’s case in rebuttal (P direct and D crosses) D’s case in Rebuttal (D direct and P crosses) Closing argument Charge: Jury Instruction Verdict
Rule 103(a): “Error must be predicated” –meaning you will not be able to appeal if you do not object 1. Objections must be made in a timely manner. RELEVANCY & PROBATIVE VALUE FRE 401 - Relevance Relevant evidence is any evidence having any tendency to make a fact more probable or less probable than it would be without the evidence that is of “consequence to the determination of the action.” Relevancy is the sum of two different concepts: Materiality 1. Relates to whether the evidence is offered upon a matter properly in issue 2. Some issues are always material→credibility of witnesses 3. Relationship between the point being offered and the element necessary. “…of consequence to the determination of the action…” Probativeness 1. Evidence must logically tend to prove the proposition for which it is offered 2. Probativeness is a matter of sense, logic, and experience Note: The evidence must not make the proposition substantially more likely than not but only somewhat more likely than not. FRE 402 1. Only relevant evidence is admissible 2. The evidence must bear a sufficient relationship to the matters in dispute 3. The evidence must tend to prove or to disprove any proposition 4. Circumstantial v. Direct Evidence a. Direct→is establishing an essential element of the case – involves an eye witness account of the ultimate issue. 2
b. Circumstantial→an essential element not so immediate and may require intervening inferences – drawing inferences Rule 104(b) Conditional Relevance: Evidence sufficient to support a finding test – When the relevancy of evidence depends upon the admissibility of a conditioned of fact subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition FRE 105 Where evidence is admissible for one purpose (or as to one party), it is not rendered inadmissible solely because it is improper or irrelevant for some other purpose. FRE 403 - Balancing Evidence may be excluded if its probative value is substantially outweighed by the danger of: Unfair prejudice →refers to the danger that evidence might suggest an improper basis upon which the jury could decide the case. o The test is not whether the evidence is detrimental, but whether it is so unfairly prejudiced as to substantially outweigh its probative value. o Evidence can trigger a response that has nothing to do with its logical connection to a fact of consequence. o A single item of evidence can generate several different inferences and be used by the jury in more than one way. o This rule prohibits the use of prior specific acts to prove action in conformity with the character. Confusion of the issue→evidence confuses the issues when it focuses the jury’s attention too closely on a factual issue that is not central to the outcome of the case. Such issues are called collateral Misleading the Jury o A risk that a jury may give a piece of evidence more weight than it deserves Undue delay Waste of time Needless presentation of cumulative evidence With 403 you must assess the probative value by examining: 1. Strength of the underlying inferences 2. Certainty of the starting point a. Judges may not consider the credibility of witnesses, it is the jury’s job to determine the weight; the judge only determines the relevancy 3. Need 3
4. When an item of evidence has a proper relevant use to prove a fact of consequence but also creates the risk of an improper use, the judge may give a limiting instruction that directs the jury to consider the evidence only for its proper use. Objections: 1. Ambiguous or vague a. Used when a question is unclear 2. Argumentative a. Used when counsel tries to conceal argument to the jury in the form of a question. Example: After defendant’s brazen disregard of the safety of everyone in the store, what did you do next? 3. Asked and answered a. Used when a question rehashes testimony already given 4. Assumed facts not in evidence a. Used when a question presupposes some fact that has not yet been established by testimony (classic Example: When did you stop beating the your wife -- assuming no prior testimony that he did) 5. Badgering the witness a. Used when the counsel is being argumentative with witness. 6. Calls for narrative response a. Used in response to question that is so broad and open-ended as to make it possible for opposing counsel to anticipate whether the witness will provide relevant, admissible testimony. i. Possibility of the witness giving out more than required ii. Can be damaging iii. Can be cross on if witness mentioned iv. Want to know what the witness will mention 7. Compound question a. Used when questions contains two or more included questions so that an answer will be ambiguous. Example, did you see the victim on the night of the allegedly robbery and did she seem upset? 8. Mischaracterizes the evidence a. Used when the counsel, when questioning a witness summarizes prior testimony in a way that distorts it. Example. Mr. Jones, earlier you testified that you disregard the puddle in aisle nine…. (Assuming Mr. Jones did not so testify) 9. Nonresponsive a. Used by questioning attorney to object to testimony that does not answer the question asked. 10. Leading question: is a question that suggests the answers. 4
1. Should not be used on direct examination of a witness except as may be necessary to develop the witness’s testimony. 2. A statement and add a question to it. 3. Problems: because we want the testimony to come from a competent person. A person that have a personal knowledge of the event. a. So the attorney asking a leading question is not competent to testify because they are not there at the event. Leading question is a way for the attorney to testify to events when they are not there. i. Leading rules are not absolute. FRE 611- Cross -Examination 1. Cross examination is limited to matters on direct examination and matters affecting the credibility of the witness→ 2. 611(b): Questions addressing issues of scope of direct examination i. Example: Π testifies he was bitten without provocation by a brown German Shepard with a white paw. Π calls Δ as an adverse witness and only asks 1 question: Do you own a brown German Shepard with a white paw. Δ answers yes. Δ attorney asks Δ that dog is gentle and never bites without provocation. Π objects. It should be inadmissible subject to court’s discretion b/c Δ’s answer goes beyond direct examination. 1. When one party asks the other party as an adverse witness and asks only one question, the party is limiting the scope of the testimony to that one question. The only issue brought up was ownership. 2. 611(c): Leading questions i. Generally not allowed on direct examination except when: 1. Preliminary background information 2. Examination of expert witnesses 3. Child witnesses 4. Hostile or adverse witnesses FRE 601-602-603-604 – Competency Foundation Competency/Evidentiary Foundations (Perception, Recollection, Sincerity, Narrative capacity) Rule 601 – General Rule of Competency - every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. 5
o Every person is competent to be a witness except where state law supplies the rule of decision. Example, in a diversity case where state law supplies the rule, a child witness to be competent would have to meet the 3 required elements under common law. o Test for competency is the minimum competency test Requires personal knowledge (FRE 602) Requires declaration to testify truthfully (FRE 603) • Dispense with strict competency requirements and let the jury weigh the evidence. (104(b)) 1. Rule 604 - Narrative capacity – ability to communicate a. Interpreters – Qualification like an expert; administration of oath or affirmation to make true translation. 2. Rule 603 – Sincerity – Oath or Affirmation – a. Witness must promise that he will tell the truth. Two Goals: Impress upon the witness how serious it is; Set the predicate for a perjury prosecution. b. Person must have Capacity to distinguish truth from fantasy (drugs? Credibility shall be judged by jury) i. NY removes the oath for witnesses under 9. But - court still wants to know the child knows the difference between fact and fiction. 3. Rule 602 – Perception – First-hand knowledge Requirement. – relevance depends on perception a. Witness must have personal knowledge of the matter – evidence sufficient to support a finding (could be based on witness’s own testimony) FRE 612 – Refresh Recollection To refresh recollection: Memory may be refreshed by leading questions or writings either while testifying or before testifying. 1. Present Recollection Refreshed a. Triggers current memory b. W. must testify to a lack of memory & testify that refreshing item will trigger Memory c. Item must actually refresh memory d. Refreshing item must not be admissible, but must be shown to opposing Counsel e. Opposing Counsel may introduce into evidence …b i. Limitations 1. Witness must testify without looking at the writing (can have a moment to refresh but attorney must take the writing back).
2. Past a. b. c. d. e.
2. Opposing counsel has an absolute right to inspect the document, to cross examine using the document, and introduce relevant portions of the writing. 3. Witness need not have made writing herself. 4. Writing need not be admissible in evidence. Recollection Recorded – no present recollection at all Available when W has no memory Record must “correctly reflect W’s prior knowledge Record must have been “made or adopted” by W Record must have been made or adopted when matter was “fresh” in W’s mind Record is read into evidence but not admitted as exhibit unless offered by opposing counsel
FRE 605- Competency to Testify Competency to testify a. Rule 605. Competency of Judge as Witness – i. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. b. Rule 606. Competency of Juror as Witness – i. (a) At the trial. - 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. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. ii. (b) Inquiry into validity of verdict or indictment. – They can only testify to: 1. (1) whether extraneous prejudicial information was improperly brought to the jury's attention, 2. (2) whether any outside influence was improperly brought to bear upon any juror, or 3. (3) whether there was a mistake in entering the verdict onto the verdict form. 4. NO – discussing deliberations. c. Dead Man’s Rule - Prevents living witness fabricating evidence against a deceased party. i. New York’s Dead Man Statute - CPLR 4519 1. Trial on the merits (at the actual trial) 2. [An interested person or predecessor to an interested person 3. may not testify 4. on behalf of himself or his successor] 7
5. [against the decedent’s representative or successor] 6. about personal transactions or communications between witness and decedent 7. unless waived (anyone from the estate’s side can waive) a. DMS – allows testimony as to the facts on accident not to conversation b. DMS – is coerced by 104(b) – standard for determining if DMS applies is by Preponderance of the evidence FRE 701 & 702 – LAY & EXPERT TESTIMONY FRE 701→Lay opinion Generally, lay witnesses cannot offer testimony opinion, but – standards for admissibility: 1. A lay witness may testify in the form of opinion or inferences if opinion are: a. Rationally based on the perception of the witness AND b. helpful to a clear understanding of the testimony (leads to relevancy) i. Opinion is helpful, if it captured more than the witness can explain ii. Convene information is a sufficient way that is more helpful for the jury to understand it in a concrete way. c. Must have personal knowledge d. Scope→ permissible to talk about: i. Speed and other physical measurements (height, weight, color) 1 Not to say car was driving recklessly, bridge was properly constructed→ improper forms of lay opinions. Legal conclusions must be avoided. ii. Identity of a person iii. Sensory descriptions (sound, smell, taste) iv. Value of property v. Familiarity with one’s handwriting vi. Sanity, Emotional State (happy, sad), Irrational Behavior 1 But not mental incompetence vii. Physical condition (appeared drunk, was intoxicated, but not alcoholic or schizophrenic→ require expert opinions) e. Lay witness cannot talk about what’s is the defendant’s head f. Ultimate issue – the application to the element of the claim – Witnesses cannot be allow invading the province of the jury. FRE 702→Qualifications of Expert Witness 8
1. Must be qualified as an expert by knowledge, skill, training,
education, or experience
2. Opinion must be helpful or assist the fact-finder to understand the
evidence or to determine a fact in issue - relevance
3. Must be within the expert’s field of expertise i. Based upon sufficient facts or data ii. The product of reliable principles or method; and iii. W must have applied principles and methods reliably to
the facts b. Expert truck mechanic may not give an opinion as to the speed of two vehicles at the point of impact. You would need an expert on accident reconstruction. Daubert: 1. Evidence must be scientifically valid 2. Reasoning/Methodology behind evidence can properly be applied to facts in case Facts courts consider: Ct should look to determine scientific knowledge: 1. Testability /Falsifiability - Is the theory/technique tested/testable? 2. Publication and Peer Review -Has it been subjected to peer received? 3. Potential Error rate? 4. Generally accepted? 5. Existence of controlling standards KUMHO: Judges must serve gatekeeping roles in regards to all expert testimony 1. Some of Daubert factors does always apply in some non-scientific testimony a. In those situation, the Daubert factors are flexible – i. so court can look at the factors and see which ones apply 2. The Daubert factors are a non-exclusive list. Exams Analysis: 1. Is the evidence relevant a. Is expert testimony must assist trier of facts 2. Is the expert witness competent 3. What is the underlying principle a. Background knowledge about the world b. Do we have confidence in the underlying principles the Expert W is trying to apply. c. To do that we look at Daubert d. Go through the factors 4. What is the methods used? a. How did Expert conduct experiment and reach his conclusion 9
b. Apply the Dauber test again FRE 703: Bases of Expert Opinion 1. May base opinion on: a. Facts perceived by her or made known to her at or before the trial i. Testimony by a coroner as to the findings of an autopsy ii. Facts about a fatal accident made known to the expert at trial despite her lack of personal knowledge iii. Lay vs. opinion: expert need not have personal knowledge, but a lay witness must have personal knowledge b. Facts reasonably relied upon by experts in the particular field i. An expert opinion may be based on facts not in evidence or on inadmissible hearsay c. Opinion based on Hearsay – Expert usually cannot based opinion on hearsay unless (Exception) i. If the facts or data are reasonably relied upon by experts in the same field in reaching their conclusion; the fact will constitute permissible basis for the expert opinion even though it is based on hearsay. 1 However, the hearsay will not be allowed to be repeated to the jury 2 Can based opinion on hearsay but cannot say he based his opinion on it 3 Opinion that relied solely on hearsay is not something that would be reasonably relied on by other expert in that field. FRE 704 – Expert Testimony as to Ultimate Issue 1. 704(a): a. An expert witness may testify as to an ultimate issue i. Contrary to common law rule 2. 704(b): a. Limited to criminal cases b. An expert may not give an opinion as to whether a criminal defendant did or did not have a particular mental state constituting an element of the crime charged or a defense thereto. FRE 705: Cross Examination of Experts 1. An expert need not give the reasons for her opinion on direct examination. a. She may be required to disclose such facts on cross-examination. FRE 901: Authentication and Identification of Exhibits All exhibits must be shown to be what they are claimed to be before they can be admitted into evidence. 10
Real evidence→documents, writings, voice samples, physical evidence o Demonstrative evidence→explanation evidence (visual aids, charts, maps, etc.) FRE 901(a) establishes the evidentiary standard that the proponent of an exhibit must satisfy for the judge to admit the exhibit. o There is a relevancy theory requirement—there must be a connection between the item and the parties or events in the case. o There must be evidence sufficient to support a finding. Evidence upon which the judge thinks a jury could reasonably find a fact to be more likely true than not. FRE 901(b) sets forth illustrations of the kinds of foundation facts that the drafters of FRE believe should satisfy that standard. o There must be some authenticity and identification o Real evidence—tangible items o Two principle methods of identification: Witness may recognize item Chain of custody→to ensure no one has tampered with the evidence. 1. Distinction between “real evidence” vs. “demonstrative evidence” a. Real evidence - Actually played a role in the events giving rise to the litigation (can be used for all purposes) b. Demonstrative evidence - Created for trial in order to illustrate and help the jury to understand (more limited application; not given to jury) 2. Rule 901(a): 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 3. Process of authentication and identification of exhibits a. Mark exhibit for identification (Once in evidence, becomes Π’s/∆’s exhibit – number changes) b. Show to opposing counsel c. May I approach the witness? d. I now show you what has been marked as Ex. 1 for identification. Do you recognize it? What is it? e. IF REAL EVIDENCE... (Real evidence – you want to ensure it gets into evidence.) i. How do you know it is what you say it is? (standard: Sufficient to support a finding) 1. 901(b)(1) or (4) - Distinctive objects (recognition leads to authentication) o
a. (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. b. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. 2. Non-distinctive objects – Chain of custody Must account for its every step between seizure and use in courtroom 3. Authenticating Writings – a. 901(b)(1)/(4) - Someone can simply recognize the writing from seeing it before and testify to that. b. 901(b)(2) - Lay witness can recognize handwriting from knowledge he/she had from before the litigation (not acquired for litigation) c. 901(b)(3) – authentication of the writing with the original specimen that was written by the defendant. (can be given to jury to let them decide whether it’s authentic). d. 901(b)(5) & (6) - Voice identification & Telephone calls –Doesn’t matter when or where witness became familiar with person’s voice – more distinctive than handwriting i. Outgoing phone calls – identification of the person you’re calling b/c they are at that number – that’s pretty good. ii. Incoming phone calls –how can you be sure that the person on the other end of the phone is who they say they are. e. Reply doctrine - If the circumstances and contents of a letter indicate that it is a response to an earlier letter, that is sufficient to support a finding that the reply was written by its purported author f. Self-authentication – 902 – Certification can authenticate. i. 902(4) - Government documents/public records: ii. 902(11)/(12) - Private business records: 12
iii. 902(6) - Printed materials (newspapers and magazines) are selfauthenticating iv. Certification must indicate that record was: 1. (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; 2. (B) was kept in the course of the regularly conducted activity; and 3. (C) was made by the regularly conducted activity as a regular practice. g. NY 3122(A) – you can do essentially the same thing – fulfill foundational requirement by affidavit. A little more technical than federal statute. f. IF DEMONSTRATIVE EVIDENCE (potentially prejudicial, so you need foundation of underlying data). i. (Photos/videos) Does it fairly and accurately depict events / locations / etc. ii. (X-rays, videos, radar, simulations): Was machine working? Did operator use proper procedures? 1. 901(b)(9) – process or system – does it regularly produce accurate result? iii. (Illustrative exhibits) Does it fairly and accurately depict ____? Will it assist you? iv. I offer what has been marked as Ex. 1 for identification into evidence as exhibit 1 4. Electronic Data and Evidence – web page / course of dealing via email a. Same rules (901(b)(1) person with knowledge; 901(b)(4) – Distinctive characteristics; Reply Doctrine; signature, email address, identifying characteristic like meta-data. Hash markers to distinguish piece of electronic information. FRE 1002 – Best Evidence Rule To prove the contents of a writing, the original must be produced, unless it is shown to be unavailable. o Situations where best evidence rule does not apply: Merely to prove that a writing existed 13
Merely to prove that a statement was made Where the contents of the writing are collateral to the issues being litigated→FRE 1004 o Situations where the best evidence rule does apply: Where the writing itself has independent legal significance • Words of a contract, deed, etc. Where the writing is offered into evidence to prove an event Where the testimony is reliant on the writing, not reliant on personal knowledge o 2 layers of best evidence rule Best evidence Hearsay Example: Witness is listening to police scanner and hears that red and (speeding) blue car got into an accident at the corner of Maple and Cedar. Witness lives at this intersection and goes to her window and sees the cars in the intersection. At trial, witness is produced by the Π and asked to testify as to what she heard on the police scanner. This would be inadmissible as hearsay. Her testimony as to what she heard was an out-of-court statement offered to prove its truth. She is testifying as to the speeding blue car, but she didn’t see the blue car speed, she only saw them after they crashed at the intersection. How about the best evidence rule? It doesn’t apply because there was no writing, recording, or photograph. Exam Analysis: 1. Does the evidence involve proof of the contents of a writing? If not, no best evidence rule a. Contents – involves asking the jury to draw conclusions on what the writing said or show b. FRE 1003 Duplicates and photocopies are admissible and treated as originals unless there is a dispute as to the authenticity of the original or it would be unfair to admit the duplicate 2. If so, is the original writing being offered? If so no best evidence rule 3. If not, is a duplicate being offered? If so, no best evidence problem a. If not original or duplicate, can we offered something else? i. Secondary evidence will probably consist of a testimony as long as the original/duplicate is not destroyed or lost in bad faith – Rule 1004 14
4. I f not original or duplicate, is there a reason why the original is not being offered (e.g., lost, destroyed, beyond power of court, in possession by the adversary), if so, secondary evidence may be offered a. However, if you have the writing but refuses to produce it – the best evidence rule applies and you cannot offer the contents of the writing. Judicial Notice 1. Rule 201. Judicial Notice of Adjudicative Facts – a. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (basic things that allow people to communicate) b. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either. i. local common knowledge – things that everybody in a community knows. (territorial jurisdiction of a trial court). ii. Can be easily or recognize through authoritative articles - facts that might not be within the common knowledge, but facts that are not really subject to dispute 2. Judicial notice may be taken at any time of appeal or proceedings 3. If Appellate Court takes notice – it means the appellate court is taken it o evidence – it therefore makes it mandatory of the jury.
FRE 407 – Subsequent Remedial Measures Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct in connection with the event: o Exceptions: To prove ownership or control To show an attempt to conceal or destroy evidence For impeachment of testimony as to the safety of the condition To show precautionary measures were feasible o Rationale: Subsequent repairs do not logically establish prior lack of care Admitting such evidence would tend to discourage beneficial changes from being made after an accident FRE 408 Settlement Negotiations
Civil Negotiation - Evidence that a Δ has paid or offered to pay money in a settlement of a disputed claim against her is not admissible to fix liability as between the parties 408 – Civil o Cannot used anything said in settlement negotiation to prove the element of the case Things are protected and anything that was said in the settlement negotiation o Public policy→ to encourage out of court negotiations. o Exceptions: To prove bias or prejudice of a witness To controvert a contention of undue delay by one of the parties To prove that a party attempted to obstruct a criminal investigation FRE 410 Plea Bargain 1. 410 – Criminal a. Everything is protected as long as the plea bargain does not go through b. A guilty plea is admissible in later allegation against the defendant c. If the guilty plea does not go through then everything said is protected d. I f the plea in nolo contender then it is not admissible FRE 409 Payments of Medical Expenses Evidence that a Δ paid or offered to pay medical, hospital bills is not relevant to prove the Δ’s liability for injuries. o But admissions of fact accompanying offers to pay medical expenses are admissible. The admission of fact is admissible but the statement regarding offer to pay medical bills is not.
FRE 411 Liability Insurance Evidence that a person was insured is not admissible to the issue of whether a person acted negligently or wrongful. It is admissible for other purposes than to prove the Δ liable. FRE 404 – Character Evidence Character evidence is evidence of how a person generally behaves, or behaved on some other occasion.
Character evidence (evidence of a person’s character or trait or a pattern of bad conduct) is not admissible for the purposes of proving action in conformity therewith on a particular occasion. o Policy People don’t always act within their character Juries might be unduly swayed o Exceptions: Where character is an essential element of a claim, defense, or cause of action, character evidence is admissible • Defamation cases • Child custody cases Where knowledge of the character of another is at issue, character evidence is admissible • Self-defense • Negligent entrustment Where the accused opens the door under FRE 404(a)(1) • Δ may offer evidence of good character by reputation or opinion evidence, not specific acts, to prove his innocence and the prosecution may rebut with negative traits Bad character of the victim • To show the victim acted in conformity with character, then conduct would tend to prove Δ’s innocence • Reputation and character evidence In civil actions, 404(1) prohibits the use of character evidence to show conformity, but it may be used in a civil case if the civil action is based on culpable conduct proscribed by criminal law. Character Evidence 1. Never Admissible in a Civil Case, Unless Character is an issue in that case 2. Rule 404a. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes – a. (a) Character traits are not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: i. Criminal defendant may offer his own pertinent trait of character in Defendant’s case in chief. 1. Pertinent – pertinent to the crime charged. 2. Timely - Trait must have existed at the time of the crime.
3. Character trait evidence may be introduced to negate inference that he was less likely to commit the actual crime – in the form of opinion or reputation 4. In New York – Character evidence can only be offered in the form of Reputation Only ii. Prosecution may offer evidence of ∆’s bad character to rebut evidence of ∆’s good character. 1. Prosecution may not offer character evidence in their case-in-chief 2. Trait must be pertinent to character trait put in issue by the defendant. 3. Evidence must be in the form of opinion or reputation. 4. In New York – Character evidence can only be offered in the form of Reputation Only iii. Criminal D may offer evidence of Pertinent Character trait of Victim’s Character – 1. Trait must be pertinent to defense (self-defense, etc.) a. ∆ may offer evidence of V’s bad character to bolster his defense. 2. Evidence must be in the form of opinion or reputation 3. In New York - Evidence of victim’s character not admissible
iv. P may offer evidence of V’s good character to rebut ∆’s evidence of V’s bad character. 1. Pros. may not offer evidence of V’s character in their case-in-chief 2. D must open the door by offering evidence of V’s character (Unless self-defense in homicide case) 3. Evidence must be in the form of Opinion or reputation 4. Again – evidence of V’s character not admissible in NY Prosecution may offer evidence of V’s good character to rebut evidence that V was first aggressor in homicide cases: 404(a)(2) 1. D must open the door by raising defense of self-defense and offered evidence that V was the first aggressor 2. Evidence must be in the form of opinion or reputation 3. Evidence must show V’s character for truthfulness 18
Prosecution may offer evidence of D’s bad character to rebut evidence of V’s bad character 1. D must open door by offering evidence of V’s character 2. Evidence must be for the same character traits 3. Evidence must be in the form of opinion or reputation 4. Evidence not admissible in NY vi. (3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609 - Only covers circumstantial use of character. 3. (a)(2)→reputation or opinion testimony regarding a witness’s good character for truthfulness is not admissible until the witness’s character has been attacked. Bringing forth prior convictions, bad acts. FRE 404(b) – Prior Bad Acts (Non-Conviction Acts) Prior Bad Acts: Rule 404b - Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes o (b) Other crimes, wrongs, or act [civil & criminal] Not admissible for action in conformity therewith Admissible for motive, intent, absence of mistake, identity/opportunity (modus operandi), common scheme or plan, or other purposes • Actus Reus defense – if D claims that he didn’t do it – then evidence by P that he did that action in the past will not be allow – Propensity Argument o Exception: modus operandi • Mens Rea defense – However, If D is claiming that he did it BUT he did not Intent to do such action – then P can bring in evidence that shows D did it in the past. o Propensity is allow show Mens Rea • “Other Purposes” background may be a good enough additional purpose – maybe prior conspiracies or res gestae information. Procedure: Reasonable notice requirement for criminal cases (on request) • Criminal case – on request – prosecution must give notice of 404b evidence it plans to introduce; ∆ may move to exclude. • Hearing will involve dispute about whether prior act actually happened. o Federal Standard: Conditional Relevance – sufficient to support a finding that it actually happened. 19
Acquittal does not preclude admission in Federal Court but does in New York New York does not have 404b Evidence of other crimes and acts is admissible when it is offered to show something other than character. o KIPPOMIA Knowledge Intent Plan Preparation Opportunity Motive Identity Absence of mistake or accident There must be notice of using these other crimes and acts Specific trait to be proved must be in issue Where evidence of other crimes are admissible to show KIPPOMIA, it need not be shown that anyone was actually convicted, just that the other acts occurred. Character evidence has low probative value, is highly prejudicial.
FRE 405 – Methods of Proving Character Use of Prior Acts as Impeachment tool Where character evidence is admissible, all 3 forms of character evidence may be used as proof of character. o Reputation – W has personal knowledge of the reputation Allow the jury to inferred from the witness the individual reputation Attack the knowledge of the reputation o Opinion – Challenge your knowledge Specific acts can only be admitted by: o By inquiry during cross-examination of a witness giving reputation or opinion evidence (405(a)), or – must have good basis Prior act must be pertinent to triat offered by D Extrinsic evidence is not allowed o In cases where character or character trait is an essential element of a charge o New York – If criminal D calls character witness, P may offer extrinsic evidence of convictions pertaining to character trait put in issue – CPL 60.40 Strategic importance of picking traits that don’t open the door to convictions (don’t say “law abiding” say “peaceful”) 20
FRE 406- Habit; Routine Practice Evidence of a person’s habit or the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Is highly probative b/c it is an automatic response to an act Specific instances of conduct are allowed to show habit b/c habit is highly probative. 2 steps Analysis: o Have we establish an Habit – Arbitrary o Is the habit we prove sufficiently probative on the relevance evidence of fact of this case. FRE 412 – Sex Offenses – Rape Shield Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition a. New York – CPL 60.42 – tracks basic idea of federal rape shield law – keeping out evidence that the rape victim was promiscuous or behaving in lewd ways. b. (a) Evidence generally inadmissible. i. (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. ii. (2) Evidence offered to prove any alleged victim's sexual predisposition. c. (b) Exceptions. i. (1)CRIMINAL - the following evidence is admissible, if otherwise admissible under these rules: 1. Source of Physical Evidence: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; a. Physical evidence (injury, seamen, etc.) is at issue – Defense is: somebody else did it, and here’s the evidence. 2. Prior sex with ∆ proves Consent: (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and a. I reasonably believed she wanted to have sex with me
3. Constitutional Rights: (C) evidence the exclusion of which would violate the constitutional rights of the defendant. ii. (2) CIVIL - reverse 403 balancing 1. Evidence admissible if otherwise admissible and probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if V opens the door. iii. New York – pretty close - proves specific instances of conduct with the accused. 1. Rebuts evidence of victim’s failure to engage in intercourse over a period of time 2. Rebuts cause of pregnancy, injury, seamen, physical evidence -∆ can show that it came as a result of sexual conduct with someone else. 3. Prostitution conviction in past 3 years 4. Interest of justice. d. (c) Procedure to determine admissibility. i. (1) A party intending to offer evidence (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. ii. (2) Court must conduct a hearing in camera before admitting evidence w/ V and parties. Paperwork must be sealed. FRE 413-415 Sex crimes→these rules override 404(b) and allow specific acts of sexual assault to prove a person’s character or propensity for engaging in such misconduct to show action on a particular occasion. 413: When a criminal defendant is accused of sexual assault, the prosecution may introduce evidence that the defendant committed other such crimes to show his propensity to commit sexual assault 414: Same as 413 but for when a criminal defendant is charged with child molestation 415: Same as 413 but for civil cases involving sexual assault or child molestation This evidence is still subject to 403 balancing HEARSAY 22
Hearsay is an out of court statement been (assertion made or done by someone other than a testifying witness on the stand that is) offered into evidence to prove the truth of the matter asserted. Approach to hearsay: 1. Is the statement offered to prove the truth of the matter asserted? a. Is the statement relevant for any purpose other that does not require accepting the truth of the matter asserted? 2. Is the statement is hearsay, is it nonetheless admissible under and exception or exemption to the hearsay rule? Exemptions→statements offered for their truth but still not considered hearsay Exceptions→statements acknowledged to be hearsay but still admissible Pay close attention to the facts for suggestions of exceptions Be sure that all the technical requirements of an exception are met before deciding that the exception does in fact apply Concerns: reliability, sincerity, perception and memory problems The hearsay rule is not applicable where evidence of the out-ofcourt words or actions is offered only to show that the statement was made or that it had a certain effect on a listener or observer, rather than to prove the truth of the matter asserted. FRE 801- Hearsay Rule Statement is an (1) oral or written assertion or (2) non-verbal conduct of a person if it is intended by the person as an assertion. o Includes assertive conduct→actions that are the equivalent of words are treated as hearsay if the words would be hearsay o Nonassertive conduct is not treated as hearsay and is admissible not only to show the declarant’s state of mind but also to prove the truth of the matter asserted (there are no issues of trustworthiness) Declarant – the person who made the out-of-court statement Hearsay – the person who is testifying in court I. How to spot Hearsay: 1. What propositions is the statement being offered to prove? 2. Is the jury being asked assess the declarant’s testimonial capacity (perception, memory, sincerity, narration)? a. If offered for effect on listener b. . . . . independent legal significance c. If prior inconsistent statement to impeach, no; 23
3. If so, did declarants intend to assert the proposition the statement is being offered to prove? How to spot Hearsay 1. What proposition(s) is the statement being offered to prove 2. Does the statement assert those propositions? Exam Analysis
FRE 801(d): Hearsay Exemptions Hearsay for class purposes but Exempted 1. Effect on the Listener – statement to show what effect the statement had on the declarants head 2. Independent Legal Significance – such as “I do” in a wedding 3. Prior inconsistent statements by witness→801(d)(1)(a) a. Statement inconsistent with testimony given at trial b. W now testifying c. W now subject to cross d. Made under oath e. in a proceeding (formal papers; depositions; grand jury – statement given at a police house even though sworn does not fit the proceedings req.) i. Prior inconsistent statements not sworn are only admissible to impeach ii. New York Criminal Cases – We don’t allow Prior Inconsistent statements substantively, regardless of the circumstances under which they were made. 1. Admissible for impeachment. iii. New York Civil Cases – Letendre v. Hartford, 289 N.Y.2d 1983 (NY 1968) – Π sued insurance company to recover on policy covering employee theft. Only evidence of theft was employee’s prior inconsistent statement. 1. Could be used for impeachment – but they don’t even survive motion to dismiss. 2. Court admitted it substantively for its truth – they did not apply safeguards; not hearing, not oath; but they allowed insurance adjustor guy to come testify. They said it was admissible b/c it was reliable 3. Seem to be admissible, at least where there is some indicia of reliability. 4. Some courts have said that PIS are admissible Others apply a vague reliability test. 4. Prior consistent statements by witness→801(d)(1)(b) 1. Admissible only where: i. Declarant testifies and is subject to cross 24
ii. Used to rebut an express or implied charge of recent fabrication or improper influence or motive on the part of the witness iii. Not necessary (or sufficient) for prior inconsistent statement be introduced first 1. In Federal Court – admissible substantively under FRE 801(d)(1)(b) 2. New York: admissible only for non-hearsay purpose of rehabilitating witness’s credibility. 5. Prior Identification (C) one of identification of a person made after perceiving the person; 2. In Federal Court - Declarant testifies and is subject to cross 3. New York Identification: Criminal Proceeding where ∆’s commission of offense is at issue, a. Declarant must have previously made ID but be unable to at trial b/c of failure to recollection OR; b. Declarant must have made ID at trial, in which case declarant may also testify to earlier ID c. Prior ID must be in person, no photo IDs 6. Admission by party-opponent→801(d)(2) a. Direct admission→(a) Statement is offered against a party and is i. (A) the party's own statement, in either an individual or a representative capacity 1. Δ comes up to Π after car accident and says, “It was my fault.” b. Admission by conduct or silence (Adopted Admission)→(b) a statement of which the party has manifested (action indicating belief) an adoption or belief in its truth, i. Judge decides under 104(a) whether the party’s conduct does manifest the belief. ii. Π suing former employer after longterm exposure to a chemical causing leukemia. Δ denies chemical was unsafe and they knew there was any special danger caused by exposure. Π offers a report complied by Δ to a federal agency detailing the harmful effects of the chemical. Upon objection, it will be admissible. 1. At trial, they deny danger. But report they conducted says it is. This is the inconsistency. c. Speaking Authority - Authorized admission→(c) a statement by a person authorized by the party to make a statement concerning the subject, or 1. New York (agent rule, covered by 801b2c) – agents who have speaking authority. 25
a. You have to be careful about who you sue if there is a hearsay statement. Employee is not representative. You’d have to join him. d. Agency admission→(d) ) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or [Does not exist in New York (only persons authorized)] e. Co-conspirator’s admission→(e) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 1. Evidence of co-conspirators are often highly relevant and critical to the case (these guys are trusting each other to act on their behalf). 2. Some things in a conspiracy also have independent legal significance. ii. Under C, D, or E - you can’t object on the ground that the person didn’t know what they were talking about – I’m not bound by what those people say iii. Proving Agency /Conspiracy - Proving C, D, or E. 1. Federal: (more evidence, higher burden) a. Offering party must show by preponderance of evidence existence of agency relationship or conspiracy. b. Statement being offered may be considered but is not sufficient to establish agency/conspiracy. i. Fact that statement comes true is additional element. Some courts would let it in. 2. New York: (less evidence, lower burden) a. Offering party must show by prima facie evidence [sufficient to support a finding] existence of speaking authority or conspiracy b. Statement being offered may not be considered – other evidence only. c. Practically, there is probably no difference. FRE 803: Hearsay Exceptions Can be invoked whether the declarant is available or not Always a requirement of 1st hand knowledge Credibility may be attacked as if the declarant was available Judges have no discretion as to admit or not admit this evidence
1. Present sense impression 803(1): A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (New York adopts – pretty standard nationwide) Elements: 1. Declarant is describing the event or condition as it happens. 2. Statement must be made Contemporaneously with the event (strict) 3. Foundation: i. Declarant’s personal knowledge (perception); and ii. some corroboration that the event occurred – evidence that the declarant was present is sufficient. 1. Policy: Why does this come in? a. Sincerity - Hard to fabricate b/c it happens so fast. Memory – more accurate when it’s actually happening. Perception – you know the guy saw it. Narrative Capacity – he’s actually talking about it 2. Excited utterance 803(2): 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. Elements (Facts that must be proven): 1. Statement must relate to event, does not have to describe it. 2. Event must be startling 3. Statement made under stress of excitement caused by the event 4. Foundation: a. Declarant’s personal knowledge. No need for corroboration; statement itself may prove event. 1. Policy: Sincerity – stress makes people honest; reaction - not intended assertion. Perception/narrative capacity – problematic. 3. (3) Then Existing physical condition 803(3):. A statement of the declarant's then existing state of sensation, or physical condition NOT memory or belief of state, except w/r/t declarant’s will. 1. Physical Condition Elements: a. Statement may be made to anyone for any reason b. Statement must describe declarant’s then – existing physical condition c. May not describe past medical history. d. NO! Statements assigning blame. 2. Policy - little risk of perception problem and memory problem – sincerity concerns generally relieved, especially when you’re seeking treatment. Also pragmatic – how do we know how a person feels unless they tell us? 27
4. Statements for purposes of medical diagnosis or treatment 803(4): Describing medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 1. Must be made for purposes of medical treatment (might even let in statements made to expert witness w/r/t diagnosis) 2. May describe medical history, present or past condition, or cause of condition if necessary for treatment. a. Statements assigning blame: only if pertinent to diagnosis or treatment. 3. May not ascribe fault – Declarant’s intent to giving the statement a. Does not have to be your own physical condition, as long as statement is made by someone seeking treatment, even if for another person. b. New York - Restriction on common law, for both then-existing physical injuries & 1. Statements must be for purposes of medical diag. or treatment 2. Statement must be made to a treating physician. a. Exception may be liberalized (Caccese allowing statement of cause of injuries made to nurse in child abuse prosecution). 1. Statement must describe then existing physical condition – not past medical history or causation b. But – think about opposing party admission. 5. Then Existing mental state – person is thinking, feeling, intending, planning. (such as intent, plan, motive, design) 1. You can describe state of mind to any person in any circumstance and it will come in. a. Feds and New York - You can use statement of a joint plan to show that both people had a plan (Hillman) 2. Doesn’t include statements of memory of a belief, or the fact of a memory believed. a. Exception: Formation/Revocation of will. b. Testator’s will - Past mental state regarding a declarant’s will is permitted. i. “I revoked my will last week” 6. Recorded recollection 803(5): A memorandum or record concerning the matter 1. W must have once had knowledge, but have no current memory 28
2. Record must have been made or adopted by W 3. When the matter was fresh in the W’s memory. 4. Record had to correctly reflect W’s knowledge at that time. 5. Read into evidence, not received into evidence unless introduced by adverse party. 7. Records of regularly conducted activity – Business Records -803(6) 1. Record must be kept in the course of regularly conducted business activity; and a. Business, institution, association, occupation, or calling, for or not for profit. 2. Must be regular practice to keep such records. a. Broad range – memorandum, reports, records, data compilations in any form of arts, events, conditions, opinions, or diagnoses. Covers emails, virtualy anything. 3. Must have been made at or near the time of the transactions 4. Record made by person with knowledge a. Perception concern - Issues actually arise here – some allowance for multiple people contributing to records, which may reflect conveyed information. b. Person who made record had to have personal knowledge, or had to learn what they wrote down from someone who had personal knowledge and a business duty to report that to them. c. Or certification under 902 (11&12) 8. Public records and reports 803(8) Records of public offices or agencies, setting forth 1. (A) ACTIVITIES - the activities of the office or agency, or clerical records of government entity: a. Payroll and personnel records; receipts and disbursements; routine public records like docket entries, licenses, birth, death, marriage, and property records. 2. (B) OBSERVATIONS - matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or a. Records of external matters that agency observes – statistics – sociological, demographic, meteorological, etc. But, b. We don’t want public record offered by prosecution against criminal defendant, unless ministerial in nature. c. You can’t circumvent Public records exceptions with business records exception. 29
3. (C) INVESTIGATIONS - in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law a. Not just record keeping – but factual findings and investigations – drawing conclusions about events out in the world: i. Accident investigations (NTSB, FTA, OSHA) ,Admin findings in Emp. Disc. Proceedings (EEOC), Investigations by law enforcement agencies. b. Factual findings from an investigation are not admissible against a criminal defendant, but are against the government c. Essentially like an expert witness; report is treated like expert testimony, and clear same hurdles (qualifications, bases for conclusions; hearsay via the report, but – implied duty rule. If you’re interviewing people who are under an affirmative duty to tell the truth, their statements may come in. 4. Unless the sources of information or other circumstances indicate lack of trustworthiness. 5. New York – Public records come in under business records exception – no difference, it’s just that mechanics are different. a. Same – including exclusion of public records by government against criminal defendant, etc. 9. Absence of public record or entry 803(10) a. Same as business records; diligent search should include search for all known aliases. 10. (18) Learned treatises. 1. treatises, periodicals, pamphlets on history, medicine, science or art, that are reliable authority 2. Admitted on direct or cross 3. Introduced through expert witness a. Expert may admit it’s authoritative b. Judicial notice (with expert on stand). 4. Statements read into evidence, not admitted. a. Admissible substantively or to impeach. 5. New York – Limited: Never admissible for substantive purposes, only on cross to impeach, if opponent’s expert acknowledges treaty is authoritative. FRE 804: Hearsay Exemptions--Declarant Must Be Unavailable **Remember definition of unavailable May arise in the following forms: o Assertion of a privilege o Refusal to testify 30
o Lack of memory o Absence due to death, illness, or injury o Absence from the court’s jurisdiction 104(a) decision 804(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant—(It’s not that witness is unavailable, it’s that testimony is unavailable. 1. Privilege (1) is exempted by ruling of the court on the ground of privilege from testifying w/r/t the subject matter of the declarant's statement; or must have judicial ruling upholding privilege. 2. Refusal (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or a. Not Recognized in New York 3. Recollection (3) testifies to a lack of memory of the subject matter of the declarant's statement; or a. Not recognized in New York 4. Death/Illness (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or 5. Absence (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's by process or other reasonable means. 1. show that you tried to subpoena them, but were unsuccessful, and for (b2,3,4) – you must show unsuccessful attempt to procure deposition by process or other reasonable means A declarant is not unavailable as a witness if [unavailability] is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 804(b) Exceptions: 1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. ii. Hearing of same or different proceeding, or deposition iii. Party against whom testimony is being offered (or predecessor in interest) had similar motive to develop testimony. 1. Grand Jury - ∆ is free to use that against the prosecution if he is unavailable (including the 31
fifth), but Π cannot use it against ∆ b/c ∆ does not appear at grand jury. 2. New York Rule for former testimony – Civil cases (pretty much same as federal) 1. Former testimony may be from: a. CPLR 4517 - Prior trial – exact same parties, same subject matter. i. Flexibility on the parties – more concerned with party against whom the testimony is being offered. b. CPLR 3177 - Deposition – you can preserve testimony c. Other proceeding involving cross examination (common law). 2. Either proceeding must have involved a. Same subject matter AND b. Same parties or their representatives 3. New York Rule for former testimony – Criminal cases (narrower than federal, must be same adjudication) 1. Former testimony must be from a. Related prior criminal trial (involving same charge) i. Usually a mistrial being re-trialed. b. Preliminary hearing in the same case i. Hearing under CPL 660 – criminal version of deposition rule. c. Former testimony may not be from suppression hearing, grand jury, admin proceeding, trial of co-defendant. d. Must have had similar motive to cross examine. 2) Dying Declarations. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. i. Subjective Belief of imminent death (won’t meet your maker w/ a lie on your lips?) 1. Preponderance of Evidence: proved by declarant’s statements and actions expressing belief that he/she is dying, someone says he’s dying, etc. Civil trial→party against or predecessor 1. Includes identifications of perpetrator and descriptions of accidents of past events that led up to the mortal injury or disease. ii. Statement must concern cause of death 32
iii. Homicide cases or civil cases only (attempted murder ok) 1. New York: Homicide Prosecution Only declarant must have been victim of homicide (not attempted). 3) Statement against interest. Reasonable person in declarant’s position would not have made the statement unless believing it to be true. i. Statement against to pecuniary (property), civil, or criminal liability ii. By any person iii. Declarant must be unavailable iv. Offered against any party v. Declarant must have personal knowledge b. Admissions: i. Any statement ii. By Party opponent iii. Availability irrelevant iv. Offered against declarant v. Personal knowledge not recognized Forfeiture by wrongdoing 804(b)(6)- A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. ii. Statement must be made by declarant who was a witness or potential witness iii. Statement must be offered against a party iv. Party must have engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness or potential witness 1. Subject matter of the statement is not limited in any way 2. Preliminary question (preponderance) – establish that ∆ intended to and did in fact procure unavailability. FRE 805 - MULTIPLE HEARSAY Rule 805- 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. a. Each level of hearsay must fit into a given exception. b. Example: Π is in hospital, Π’s mother testifies as to a nurse’s statement of what the doctor told her about the Π’s condition. For multiple hearsay to be admissible, each layer must be separately admissible, either under an exception or a form of non-hearsay. 33
o Doctor’s statement could be a business record o Nurse’s statement might be hearsay but possibly the statement is made to the nurse to show state of mind, knowledge, notice FRE 806 – Residual Exception Rule 807: Residual Exception - A statement not specifically covered by Rule 803 or 804 but a. Statement must have circumstantial guarantees of trustworthiness i. Reduction in testimonial information ii. Lack of motive to fabricate iii. Corroboration b. Statement is offered for material fact c. Statement is more probative on the point for which it is offered than any other evidence that can be secured through reasonable efforts d. Admission will serve the general purposes of the rules and the interests of justice e. Notice is given to the opponent. Confrontation clause 1. In all criminal prosecutions, the accused shall have the right to confront witnesses confronting him. a. Right to face and accuser in person, physically present in the courtroom. i. Child Abuse cases – have a child testify by closed circuit television, but child doesn’t actually have to see the defendant. ii. Maryland v. Craig – state has to show that the witness would suffer severe emotional harm from being physically present in a room w/ the defendant. 2. Right to cross examine the witnesses against him. a. Satisfaction of hearsay rule used to be enough; not any more. Important terms under CC: 1. Testimonial statement – statement are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions 2. Non-Testimonial - are statement 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 34
3. Types of statement that are Testimonial: a. Ex-Parte in Court testimony or its functional equivalent affidavit, custodial examinations, prior testimony that the D was unable to cross or similar pre-trial statements that declarants would reasonably expect to be used prosecutorally. b. Extrajudicial statements contained in formalized testimonial material such as affidavit, deposition, prior testimonial or confessions c. Statement made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Confrontation Clause Exam Analysis: i. Is the statement being offered by the prosecution against a criminal defendant (Does Not protect the state). 1. If not, no CC problem ii. Is declarant subject to cross-examination on the statement? 1. If so, no CC problem iii. Is the statement “testimonial”? (holding of Crawford, explained by Davis) – Was declarant’s purpose to preserve testimonial for trial? 1. Was the purpose to meet an ongoing emergency or to gather information of past facts? a. Contemporaneous with the events or later? b. Did declarant make statement w/ intention of getting help or to give testimony? c. Interrogator’s purpose (consider whether testimony to police or otherwise) d. Subjectively – what did they look like? iv. If testimonial, Admissible only if: 1. Declarant is unavailable and prior opportunity for cross examination under 804(b)(1) 2. Forfeiture by wrongdoing under 804(b)(6). a. Rules are unclear on standard of forfeiture by wrongdoing. For exam purposes – Tackle the hearsay problem first – if problem stays out under hearsay, then no need to go into CC BUT FOR EXAM – STILL TALK ABOUT IT FRE 502 – Attorney – Client Privilege a. Confidential – at the time they were made, and had to remain confidential. 35
i. Things that are told to the attorney, with understanding that that will be revealed to a third party – that is not confidential. ii. Attorney’s Agents/employees, who are part of the relationship (e.g. accountants calculating damages), are confidential. Not expert witnesses. iii. Common representation / joint defense: Any communications among them will be protected, but adversarial posture removes privilege. iv. Reasonable Expectation of Privacy (email, phone, etc.) b. Communication – even preliminary conversations protected. i. Underlying facts of communication are not protected. ii. Existence of relationship not protected, unless disclosing representation would indirectly disclose underlying communications. c. Between client and attorney (some protect only one way – from client to attorney – but most the go both ways.). i. Key factors is that clients belief that she is consulting lawyer in lawyer’s legal capacity for purposes of obtaining legal advice d. For purposes of obtaining legal advice. (use of legal judgment) i. Advice involves use of legal judgment ii. Client is consulting with lawyer in lawyer’s legal capacity for purposes of obtaining legal advice. iii. Regular business communications: Primary purpose of communication must be to give legal advice. e. Application to corporations i. Corporation can invoke privilege w/r/t communications from its own in-house counsel and w/r/t communications w/ outside counsel. ii. Upjon – Subject matter test – employee’s status no longer matters. 1. INTENT - Were communications intended to be and in fact confidential? 2. PURPOSE - Was employee aware that communications were for purposes of obtaining legal advice for the corporation? 3. SCOPE - Did communications concern matter w/in scope of employee’s corporate duties. f. Crime-Fraud exception: i. Applies only if communication advances an ongoing crime or fraud. ii. Judge may look at allegedly privilege document in camera, if sufficient evidence exists to support good faith belief that is camera review to reveal improper use of communication 36
Judge then determines whether privilege communication used to further crime or fraud is preponderance of the evidence. iv. Distinction between past crimes and present crimes. FRE 607 - IMPEACMENT Intrinsic impeachment→ evidence brought out from the mouth of the witness herself Extrinsic impeachment→ all other evidence not from the mouth of the witness (contradictory evidence from other witnesses discrediting the testifying witness) Not Collateral – very important/contradiction – goes to the issue been litigated o Extrinsic evidence is allowed to discredit the witness Collateral Matter rule→ issue not material to the issue being litigated o Collateral evidence used to discredit a witness may be inquired into on cross examination - intrinsically→ o Extrinsic evidence on the same question with regard to collateral matters may not be introduced. Witness testifies Δ is a honest man. On cross, witness may be asked if he know Δ committed 3 burlgaries. This in intrinsically. Π’s witness testifies that Δ drove through the intersection and was wearing a green shirt. Δ cannot then bring forth a witness to testify that Δ was wearing a blue shirt. This is extrinsic evidence and not admissible. 1. Rule 607. Who May Impeach - The credibility of a witness may be attacked by any party, including the party calling the witness. a. Voucher Rule – Old Rule – you would win by getting people to vouch for you, but you have no choice of witnesses, who saw the events, so fuck it. b. Abolished in Federal Court by FRE 607 c. New York – maintains voucher rule, with exceptions i. Civil Cases – CPLR 4515 – party may impeach its witness only with prior inconsistent statement, oral or in writing, made while under oath. 1. You probably have reason to think they are going to say something from a deposition; you can then use it to impeach them. ii. Criminal Cases –CPL 60.35 – Party may impeach witness only with prior inconsistent statement (in writing or oral under oath), but only if witness, on direct, makes a statement tending to disprove the party’s case. (higher standard than civil)
d. Witness must have written the statement or if someone else did – needs to be authenticated. 2. Modes of impeachment a. Character – prior bad acts, convictions, reputation or opinions for truthfulness. i. Rule 404 – character to show ∆’s predisposition on a pertinent trait. 405 – You can use specific instances to rebut. ii. Rule 404(a)(3)- evidence of the character of a witness in 608, 609 is allowed. b. Contradiction – prior inconsistent statements; factual contradiction [Reputation/Opinion Never Collateral] c. Testimonial Capacity – oath, perception, recollection, communication [Not Collateral] a. Bias – Bias, interest (in the outcome), prejudice, corruption (bribery or something). [Not Collateral] 1. 4 ways to show bias 1. Interest in the outcome 2. Economic or marital relationship 3. Hostility or favoritism 4. The fee paid to an expert witness a. Bias is always material and never collateral Four Modes/Methods of Character Impeachment FRE 609 – Impeachment by Conviction 1. Impeachment by Prior bad acts – First Method 2. Rule 609. Impeachment by Conviction of Crime- Second Method d. What can be brought in? i. Is conviction juvenile or adult? [adults only, unless constitutionally required] ii. Did conviction [elements of the crime] involve falsity? 1. If so, and if less than 10 years old – always admissible. 2. If so, and more than 10 years old – admissible if probative outweighs prejudice. iii. If NOT crime of falsity, is it a felony or misdemeanor? 1. If misdemeanor, not admissible 2. If not misdemeanor, admissible iv. Balancing for felony conviction (not crimes of falsity) a. If W is NOT criminal ∆, admissible subject to 403 balancing (almost always admissible) b. If W is criminal ∆, admissible if probative value outweighs the risk of unfair prejudicial (slight presumption against admissibility) 38
If any crime is more than 10 years old, for any W, only admissible if probative value substantially outweighs prejudicial effect. (Reverse 403). Time measure is based on time of release from prison. vi. If pardon, annulment, or cert of rehab., not admissible 1. Does not matter, if civil or criminal 2. Nolo Contendre is admissible. (controversial) Civil Cases 3. No criminal defendants, so apply balancing test – much less risk of unfair prejudice. New York – 4. If W is NOT criminal defendant, any prior adult conviction is admissible, subject to 403 balancing. 5. If W is criminal defendant, any prior adult conviction is admissible, unless probative value is outweighed by prejudicial effect. e. Procedure i. Ask about prior crime, if denied, you can bring in facts in the public record (self-authenticating) of the conviction, and possibly the plea allocution. ii. ∆ moves, in limine, to exclude prior crimes. Judge denies. 1. Fed: if the judge rules on pre-trial that convictions are admissible – D must testify to preserve appeal; furthermore, if D opens the door himself, he can’t appeal on that decision. 2. New York – Pre-trial ruling is appealable even if D does not testify. Grand larceny is a crime of falsity Petty larceny is a misdemeanor v. FRE 608 – Evidence of Character and Conduct of Witness Third method – f. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but i. (1) ONLY opinion/reputation on truthfulness or untruthfulness, and 1. W in Prosecution Rebuttal case can only testify as to D’s reputation or opinion not specific instances of conduct. 2. Reputation – knowledge in the community as being a liar. 3. Truthfulness and unlawfulness are not the same- can only attack W’s truthfulness 39
g. (b) Specific instances of conduct. (prior bad or good acts) i. You can use specific instances of conduct, on crossexamination, to impeach Witness on the stand – 1. Prior act must be probative of truthfulness or untruthfulness a. W is not criminal defendant, so we allow stuff to come in b. Rule doesn’t distinguish Ds and Ws, but if criminal D, we’d be much more concerned about unfair prejudice (403). You would have to have a hearing ahead of time. 2. Prosecutor must have good faith basis for asking the question. 3. Intrinsic evidence only! No Extrinsic Evidence (unless admissible under 404b during a crime involving falsity) CONTRADICTION: Impeachment through contradiction 1. Self-contradiction – prior inconsistent 2. Factual contradiction – D say something happened and you offered evidence that another thing happen Prior Inconsistent Statements 1. Is the P statement inconsistent with the current testimony 2. What foundation must be laid before questioning W about the prior inconsistent statement? a. Queen Caroline: i. Whether written or not, the statement need not be shown, or disclosed to the witness at that time; but on request – must be shown on opposing counsel. b. Rule 613a – No need for foundation in federal court but should do it anyway i. Common Law / New York – has to draw attention to circumstances 1. Oral Statements a. Party offering statement has to direct the witness to the circumstances surrounding the statement. i. “do you remember that you spoke with an investigator shortly thereafter? ii. Do you remember that the investigator asked you about this? iii. Do you remember that you told the investigator something you didn’t tell us here? 2. Written statements a. You have to show the written statement to the witness. i. Do you remember that you made a written statement ii. I now show it to you, do you recognize it? iii. What did you say in that statement 40
c. Rule 613b –PIS not admissible unless W afforded opportunity to explain or deny statement. i. Extrinsic evidence allowed only on non-collateral matters. ii. or if relevant on another impeachment ground besides contradiction (like bias) 1. You no longer have to give the witness to explain at the time it is introduced. 2. If W denies it, after he leaves the stand, you can bring in extrinsic evidence with another witness who can testify to the prior statement 3. You have to keep that W under subpoena until after the witness impeaching by extrinsic evidence. 3. When may extrinsic evidence of the prior statement be offered? On non-collateral matter Impeachment – Capacity 1. Oath – FRE 610 a. May not ask about religious belief to attach credibility 2. Perception and memory a. Lack of opportunity to perceive; time lapse; physical or mental infirmity; drug or alcohol use b. Extrinsic evidence is permitted, subject to 403 balancing i. Can introduce extrinsic evidence on non-collateral matter 1. Problems 10.119.3 – with wearing glasses to perceive – Extrinsic will be allowed subject to 403 – need to show more before 2. Problem 10.19.4 – cross on substance abuse – Drug abuse can affect ability to perceive events a. Where you on drug at the time that will affect your ability to perceive i. Depending – expert testimony may be needed b. What if you have someone who is an artibitual drug or alcohol uses – who ability to perceive has been compromise with long time effect i. NO CLEAR RULE ON THIS 3. 10.19.1 – Metal illness – whether it affected his ability to testify or remember things accurately – things we want to know 4. 10.19.2 – call a staff of the hospital that Roy is a member – extrinsic evidence – less likely to allow 5. 10.19.2 – allow expert testimony that b/c of mental condition – the W is not going to testify truthfully 41
a. In all of these area – Look at things on a
case by case basis i. Probative of the condition – get into the facts ii. Factors weighing on the other side 1. Not relevant 2. Embarrassing Impeachment by Bias 1. No specific rule mention 2. Examples a. Affiliation b/w W and party b. Animosity between W and Party c. Financial or other incentives to testify i. Informants 3. Otherwise inadmissible evidence might be admissible – see FRE 408, 411 a. 408 – Civil cases – party will settle out and part of the settlement party agrees to testify against another i. Problem 10.17 – Arlo’s mother testify for son – to cover for alibi- Affiliation + financial 4. Extrinsic evidence is permitted, subject to 403 balancing 1. Impeachment discredit W and now it’s time to … 2. General policy: we don’t want to spend time bolstering the credibility of the W until the W has being attack 3. General Rule: You can get out basis thing in the beginning like – job, life – to show functioning credible member of the society FRE 608 (a)(2) - Rehabilitation Rehabilitation: Types of Rehabilitation allowed and what can of impeachment will calls for it: 1. 608(a)(2):Character for truthfulness (reputation or opinion) a. Permitted only after character for truthfulness has been attacked by reputation or opinion, or otherwise i. In the impeachment just suggesting that you were wrong? then rehabilitation is not allowed ii. What constitutes an attack? 1. Prior inconsistent statement, if there is more there to show that she’s lying. 2. Insinuating that the person is lying. 3. You can always allow witness to explain away inconsistency. 4. Just showing predisposition for bias is not an attack, but evidence of corruption (getting benefit from relationship) might be. 2. 608(b)(2) - Prior acts of truthfulness 42
a. Permitted only on cross of W who has testified to other W’s character for truthfulness b. On redirect or W whose character for truthfulness has been attacked on cross, to explain or mitigate - FRE 608(b)(1)
contemplates even though it does necessary say that
3. Prior Consistent Statement a. Permitted only to rebut charge of recent fabrication FRE 806 Impeaching of Hearsay Declarants: 1. Hearsay declarant are considered W 2. Hearsay statement are testimonial 3. Can Impeach a hearsay declarant by the use of all modes of impeachment through Extrinsic evidence
3. 4. 5.
Review Questions Everything in 801(d) are hearsay but exempted under hearsay rule Testator’s will – 803(3) – should we not consider the dead man statute a. DMS will not normally keep that out b. What cannot be offered is my interaction/conversion with that dead man c. Whatever the dead man statement is admissible so long as it is brought him but someone else who heard it or if it was written in. i. No dead man statute in FEDERAL COURT just in NY 803(3) – Declarant then existing physical condition I WONT ASK ABOUT TAX INVASION Forfeiture by wrong doing a. Two issues i. Hearsay ii. Confrontation