1 – INTRODUCTION TO

EVIDENCE AND THE

ADVERSARIAL TRIAL
1.1 OVERVIEW OF THE STUDY OF EVIDENCE LAW
1.2 REASONS FOR THE RULES OF EVIDENCE
1.3 DEVELOPMENT OF THE LOUISIANA CODE OF EVIDENCE
1.4 SCOPE AND APPLICATION OF THE RULES OF EVIDENCE
1.5 PARTICIPANTS IN THE ADVERSARIAL TRIAL
1.6 STAGES OF THE ADVERSARIAL TRIAL
 1.1 OVERVIEW OF THE STUDY OF EVIDENCE
LAW
 Evidence is any species of proof, or probative matter, legally presented at the trial by the act of the
parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc.,
for the purpose of inducing belief in the minds of the court or jury as to their contention.
 The purpose of evidence is to convince the trier of fact of the assertions necessary to decide in their
party's favor.
 The law governs what may be used and how it may be used.
o Purpose, limitations, exclusions
 Rules are important far in advance of trial in deciding:
o What motions to file
o Which witnesses to depose
o What discovery to seek
o Whether a case should be settled
o Whether to even take a case

1.2 REASONS FOR THE RULES OF EVIDENCE

 Getting to the truth

ART. 102 PURPOSE AND CONSTRUCTION

These articles shall be construed to secure fairness and efficiency in administration of the law of evidence to
the end that the truth may be ascertained, and proceedings justly determined.

 Primary goals of the rules of evidence

o Fairness, efficiency, ascertainment of the truth, and just outcomes.

1.3DEVELOPMENT OF THE LOUISIANA CODE OF

EVIDENCE
 Modeled after the federal rules of evidence but there are distinctions

1.4 SCOPE AND APPLICATION OF THE RULES

OF EVIDENCE
ART. 101 SCOPE (MUST BE READ IN CONJUNCTION WITH 1101)
This Code governs proceedings in the courts of Louisiana to the extent and with the exceptions stated in
Article 1101.
ART. 1101 APPLICABILITY
 Proceedings generally; rule of privilege
o Shall apply to the determination of questions of facts
o Testimonial privileges apply to all stages of all actions, cases, and proceeding where there is
power to subpoena witnesses
MANDATORY APPLICATION OF RULES
 The determination of questions of fact in all:
o Contradictory judicial proceedings.
o Proceedings to confirm a default judgment; and
o Juvenile adjudication hearings (non-delinquent)
 Civil cases
o Juvenile adjudication hearings (delinquency)
 Criminal
LIMITED APPLICATION OF RULES
 The rules are only a guide and only to the extent that they promote the purposes of the proceedings:

Workers comp Child Revocation of Preliminary

custody probation hearings examinations in
cases criminal cases
Mayors courts and Peace bond Extradition Motions hearings
justices of peace hearing hearings
Non dispositive
summary proceedings

DO NOT APPLY TO CERTAIN PROCEEDINGS

 THE DETERMINATION OF QUESTIONS OF FACT PRELIMINARY TO ADMISSIBILITY OF EVIDENCE WHEN THE ISSUE IS TO BE
DETERMINED BY THE COURT UNDER ART. 104
 PROCEEDINGS WITH RESPECT TO RELEASE ON BAIL
 DISPOSITION HEARINGS IN JUVENILE CASES
 SENTENCING HEARINGS EXCEPT AS PROVIDED IN CCP 905.2 IN CAPITAL CASES
 SMALL CLAIMS COURT
 PROCEEDINGS BEFORE GRAND JURIES EXCEPT AS PROVIDE IN CCP 442

DISCRETIONARY APPLICATION OF CERTAIN RULES

 Judicial notice
 Authentication and identification
 Proof of contents of writings, recordings, and photographs as a basis for admitting evidence or making a
finding fact
 No corresponding provision in FRE

1.5 THE PARTICIPANTS IN THE ADVERSARIAL

TRIAL
PLAINTIFF
 Initiate action
 Have the burden of proof

DEFENDANT
 Against whom the case is brought
 No burden but prove elements of affirmative defenses

ADVOCATES (ATTORNEYS)
 Presentation of cases
 Call and question witnesses
 Present the evidence
 Make arguments to the jury
 Develop their own case strategy
 Make and respond to objection
 Apprise themselves of the applicable law; and
 They have a duty to zealously advocate on their client's behalf and to protect the interests of their clients

WITNESSES
 Primary manner through which evidence is admitted
 Evidence presented through testimony
 Must take an oath or affirm that they will tell the truth
 Must testify from their own personal knowledge of the facts, rather than from information related to
them by others
 Must be competent, (capable of understanding the difference between the truth and a lie, and
understand their duty to give their testimony in a truthful manner.
 Several rules limit testimony

JUDGE
 Maintain order (referee)
 Make determinations of law at trial and fact on preliminary matters
 Control the mode and order of interrogation of witnesses.
 May call and question witnesses
 Do not
o Decided case strategy, make opening statements, closing argument, objects, opinion about
credibility or sufficiency of evidence
 Trier of fact if no jury

JURY
 Trier of fact
 Make credibility and factual determinations
 Decides cases based on facts and evidence presented
 Determine guilt/innocence/liability

1.6 STAGES OF THE ADVERSARIAL TRIAL

Certain types of evidence can only be presented during certain stages of trial.
  Pre-Trial  Motions for judgment of acquital or directed
 Voir Dire (jury selection) verdict
 Opening statements  Defendant's case-in-chief
 Plaintiff case in chief  Plaintiffs rebuttal
o Direct  Defendant's surrebuttal
o Cross  Closing arguments
o Redirect  Jury instructions
 Deliberations and verdict

2 – RULINGS ON
EVIDENCE AND
PRESERVING ISSUES FOR
APPEAL
2.1 PRELIMINARY QUESTIONS
2.2 PRESERVING ISSUES FOR APPEAL
 2.1 PRELIMINARY QUESTIONS
ART. 104 PRELIMINARY QUESTIONS
A. Questions of admissibility generally. Preliminary questions concerning the competency or qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions
of Paragraph B. In making its determination it is not bound by the rules of evidence except those with respect to privileges.

B. Relevancy conditioned on fact. Subject to other provisions of this Code, when the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a
finding of the fulfillment of the condition.

C. Hearing of jury. Hearings on matters to be decided by the judge alone shall be conducted out of the hearing of the jury
when the interests of justice require. Hearings on the admissibility of confessions or admissions by the accused or evidence
allegedly unlawfully obtained shall in all cases be conducted out of the hearing of the jury, but when there has been a ruling
prior to trial, it shall not be necessary to conduct another hearing as to admissibility before presentation of the evidence to a
jury.

D. Weight and credibility. The preliminary determination by the court that evidence is admissible does not limit the right of a
party to introduce evidence relevant to weight or credibility at the trial.

QUESTIONS OF ADMISSIBILITY GENERALLY 104(A)

 The judge's most important role in a trial is to make preliminary [factual] determinations of the admissibility of evidence
that depends on contested facts between the parties.
 In addition, the judge also determines if a person is [competent/[qualified] to testify under art. 601 and whether a
privilege exists.

STANDARD OF PROOF
 Should generally apply the preponderance of the evidence standard when making preliminary determinations of
admissibility under Art. 104(A), unless the law prescribes otherwise.
 "more likely than not"

NOT BOUND BY RULES OF EVIDENCE [IN PRELIMINARY HEARINGS]

 As the court evaluates the admissibility of evidence under Art. 104, the rules of evidence do not apply with the exception
of privileges.

HEARING OF JURY 104(C)

OUT OF HEARING OF THE JURY

 Preliminary questions are typically decided outside of the presence of the jury
 Does not require that all preliminary issues be determined out of the presence of the jury
o Gives the judge discretion in deciding which issues are likely to affect the jury's ability to fairly decide the case.
[when the interest of justice require]
o The court's discretion is subject to "abuse of discretion" standard
 The ultimate goal
o To ensure the jury is not exposed to potentially prejudicial evidence or evidence that might ultimately be
excluded
 When the potential for prejudice is minimal, the issue may appropriately be determined in the presence of the jury
o Ex. Expert witnesses - questions asked regarding qualifications
WEIGHT AND CREDIBILITY 104(D)
OPPOSING PARTY MAY STILL CHALLENGE ADMITTED EVIDENCE
 The jury determines credibility and weight given to evidence
 The opposing counsel may introduce evidence to attack credibility and weight of the evidence

RELEVANCY CONDITIONED ON FACT 104(B)

CONDITIONAL RELEVANCY
 The court shall admit evidence upon, or subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition
o If a reasonable juror could find the existence of the fact
o *different and lower standard than addressing other preliminary questions*
o Once precondition [suff to supp a finding] is met, the judge should allow the evidence to be admitted
at trial for consideration by the jury.
 The jury is left to make the factual determination ex. If the defendant actually wrote the
letter
 Evidence may be admitted either upon or subject to the introduction of evidence
o The court can require the fulfillment of the condition be offered prior to admitting the evidence, or
o It may be admitted upon counsel's assurance that the evidence "connecting it up" may be
forthcoming (laying foundation?)
o If such evidence never materializes, then the judge may withdraw the evidence and instruct jury to
disregard

DISTINCTION BETWEEN (B) AND (A)

 (B)
o Determines whether evidence is relevant.
o Judge determines that a rational juror could find that a condition exists or was fulfilled
o Evidence goes to jury to determine the fact
 (A)
o Judge makes preliminary determinations of fact in deciding the admissibility of the evidence
o Jury decides weight and credibility of evidence

2.2 PRESERVING ISSUE FOR APPEAL

ART. 103 RULINGS ON EVIDENCE
A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and
(1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to
admonish the jury to limit or disregard appears of record, stating the specific ground of objection; or
(2) Ruling excluding evidence. When the ruling is one excluding evidence, the substance of the evidence
was made known to the court by counsel.
B. Record of ruling. The court may add any other or further statement which shows the character of the
evidence, the form in which it was offered, the objection made, and the ruling thereon.
C. Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any means, such as making statements or asking
questions in the hearing of the jury.
 The purpose of making the record:
o The appellate court will have to ultimately make the determination on a number of issues and
they must rely on the cold record; must speak into the record those things they cannot see
 If a party does not agree with a trial court's ruling [preliminary determinations], they may seek to have
the court's ruling reviewed on appeal.

REQUIREMENTS FOR FINDING ERROR ON APPEAL

 If attorney does not strictly comply with the requirements to preserve issues for appeal, he forever
waives the right to complain, and the ruling will be final.
 Depends upon whether the ruling is admitting evidence or excluding evidence

ADMITTING EVIDENCE
 A timely objection or motion to admonish the jury to limit or disregard must appear of record
 The party must state the specific grounds upon which he objects; and
 A substantial right of the party must be affected.

EXCLUDING EVIDENCE
 The substance of the evidence must be made known to the court by counsel, i.e., proffered for the
record; and
 A substantial right of the party must be affected.

THE CONTEMPORANEOUS OBJECTION RULE

 An objection is the procedural vehicle by which a party to a proceeding formally makes known to the
court its disagreement or disapproval of conduct of another party or the court that he deems illegal or
improper, and properly places the issue before the court resolution at that time, or if necessary, for later
review on appeal.
 Once objection is made, the opposing party to the objection is given an opportunity to respond
explaining why the conduct is proper or legal
 The court either
o Sustains the objection - agree with the objecting party and provide for the sought remedy
o Overrules the objection - denying the objecting party any remedy
 Objections at the trial level serve many purposes
o The parties to an action are given the opportunity to assist the judge in identifying potential
illegalities by making objections and stating the legal basis
o Promotes judicial efficiency by preventing a def from gambling for a favorable verdict and then
upon conviction, resorting to appeal on errors which either could have been avoided or
corrected at the time
o Issues are quickly resolved at trial rather than on appeal and then possibly having to be
remanded for a new trial
 Failure to make a timely and specific objection typically constitutes a waiver of the alleged error, and he
may not complain about the issue on appeal

TIMELY OBJECTION
 Made at or before the time in which a witness testifies to the objectionable testimony, and at or before
the time in which physical evidence is offered into evidence.
 If a witness testifies to inadmissible evidence prior to objection
o Counsel should object as soon as practicable, and
o Make a motion to admonish the jury to disregard
 A request by counsel that the court instruct the jury to disregard or limit inadmissible
evidence that may have been inadvertently heard by the jury

SPECIFIC GROUNDS
 How specific the grounds should be
o Whatever term or phrase used ought simply be sufficient, in context, to clearly apprise the trial
judge of the grounds of the objection
 Party must make every effort to state the correct or proper grounds because those grounds will be the
only grounds upon which a party may appeal
o Raise all possible pertinent grounds
 If judge makes ruling before ground is stated, should still state the ground on the record for purposes of
appeal
 If the ruling is one excluding evidence, there is no requirement to object with specific grounds

PROFFER (WHEN EVIDENCE IS EXCLUDED)

 "offer of proof"
 When preserving an issue for appeal on a ruling excluding evidence, the party must also make known to
the court the substance of the excluded evidence.
o What would have been testified to had the testimony/evidence not been excluded
 Without a proffer of the evidence, the reviewing court would have no way of knowing the substance of
the excluded evidence and would thus be unable to determine if the trial court erred
 May take the form of
o Informal statement
 Counsel states the nature of the evidence sought to be admitted
o Formal hearing
 Counsel fully questions the witness about the nature of the excluded testimony outside
of the presence of the jury
 In a criminal case, failure of a court to allow a party to proffer evidence can result in a reversable error
for denial of a defendant's right to present a defense.

SUBSTANTIAL RIGHT OF THE PARTY AFFECTED

 To determine whether a party was prejudiced by a trial court's alleged erroneous ruling on the admission
or denial of evidence is whether the alleged error, when compared to the entire record, had a
substantial effect on the outcome of the case.
o If not substantial (harmless error rule) - reversal not warranted
 Party alleging prejudice bears the burden
 Court considers:
o Whether erroneously admitted evidence was the primary evidence relied upon;
o Whether the aggrieved party was nonetheless able to present the substance of its claim;
o The existence and usefulness of curative jury instructions;
o The extent of jury argument based on tainted evidence;
o Whether erroneously admitted evidence was merely cumulative; and
o Whether other evidence was overwhelming
MOTION IN LIMINE
 "at the threshold"
 The moving party seeks a pre-trial ruling on the admissibility of evidence (admit or exclude)
 Motion to exclude evidence may be based on any objectionable grounds
 Raising an issue in a motion in limine provide a party with an opportunity:
o For more in-depth opportunity to argue the substance of the objection or response thereto
o To brief the court on the issues
o To more effectively prepare for trial by knowing in advance if certain evidence is admissible or
not
 In a criminal proceeding a contemporaneous objection to a judge's ruling on a written motion is not
necessary to preserve the issue on appeal, however it would be good practice for the party to ensure the
issue is properly preserved.

HEARING OF JURY
 Issues [motions and objections] of admissibility argued outside of the presence of the jury to protect the
jury from inadmissible and potentially prejudicial evidence
o Counsel should ask for bench conference to make argument to court if during a trial.
 Should still make objection on the record as soon as practical

REMEDY FOR FINDING ERROR ON APPEAL/AUTHORITY OF APPELLATE COURTS

 May include
o reversal of trial court's decision
o Having verdict, conviction, or sentence set aside
o Granting new trial

RECORD OF RULING
 When ruling on evidence, the court may add any other or further statement which shows the character
of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
 3 - RELEVANCE
3.1 LOGICAL RELEVANCE
3.2 EXCLUDING RELEVANT EVIDENCE
3.2.1 PREJUDICIAL EFFECT OF OTHER CRIMES
3.2.2 GRUESOME PHOTOGRAPHS
3.2.3 ADMISSIBILITY OF VIDEOS
3.2.4 CONFUSING THE ISSUES
3.2.5 WASTE OF TIME/CUMULATIVE EVIDENCE
3.2.6 MISLEADING THE JURY
 3.1 LOGICAL RELEVANCE
ART. 401 DEFINITION OF "RELEVANT EVIDENCE"
"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.

 Evidence is relevant if it makes consequential facts more or less probable.

ART. 402 RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT

EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the
Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not
admissible.

 Relevance is the basic requirement of all evidence.

o Very low standard - very wide net.

 Evidence may only be offered if related to

o Issues and elements
o Defenses
o Weaknesses
o Theories of the case
o Credibility of the witnesses
o Background facts that would be helpful in enabling the trier of fact to understand the evidence

DETERMINING RELEVANCY OF EVIDENCE

 There are two basic requirements that must be met to satisfy the standard for determining whether
proffered evidence is relevant:
o It must make a fact more probable or less probable than it would be without the evidence; and
o The fact must be a consequential fact, i.e., it must tend to prove or disprove an issue, element,
or defense in the case, based on substantive law as outlined above.

MORE OR LESS PROBABLE

 Evidence is "probative" of the fact
o It affects its probability
 Evidence makes it more or less probable that the defendant had the opportunity to commit the
crime.
 Ex.
o Evidence that the defendant was in the city where the crime occurred makes it more
probable that he committed the crime.
o Evidence that the defendant was incarcerated at the time the crime occurred makes it
less probable that he committed the crime.
 Evidence sought to be admitted need only tend to prove or disprove by making its existence
more or less probable
 CONSEQUENTIAL FACTS
 Consequential facts are facts that prove or disprove
o Issues or elements defined by the substantive legal principles (law).
o Defenses
o Weaknesses
o Credibility of the witnesses
o Background information helpful in enabling the trier of fact to understand the
evidence
 Always begins with the substantive law
 They are the link between evidence sought to be admitted and what must ultimately be
proven in a particular case.
 To be relevant, the evidence does not necessarily need to prove the ultimate issue in the
case, but it must help prove facts that prove or disprove the issues.
 When responding to relevancy objections, it is good practice to say what the evidence goes
to.
o Ex. Your honor, the letter helps to prove an affair which ultimately goes to the
defendant's motive for killing his wife.

THE RELEVANCE ANALYSIS

o The determination of whether evidence is relevant requires the following analysis:
1. Identify the evidence to be offered. E
2. What fact or legal proposition is the evidence offered to prove? F
3. Is the legal proposition consequential; i.e., does it relate to an issue, element, or defense in the case
based on substantive law, credibility, or background facts? C
4. Is the evidence probative of the consequential fact, i.e., does the evidence sought to be admitted
actually tend to prove or disprove the consequential fact (make it more or less probable)? P
E>F>C>P
 Relevancy determinations are within the discretion of the trial court, and will not be disturbed on appeal
absent an abuse of that discretion.

IRRELEVANT EVIDENCE - NOT PROBATIVE OF CONSEQUENTIAL FACTS

 If it is not probative of the consequential fact, it is not relevant.

A BRICK IS NOT A WALL - WEIGHT V. RELEVANCE

o To be relevant, evidence need not have "any predetermined minimum weight".
o Evidence sought to be admitted need only help to or tend to prove or disprove a consequential fact.
o Evidence need only be a brick in the wall, not the entire wall
1. Any degree to which evidence helps prove or disprove is sufficient
o Evidence need not be strong evidence or highly believable to be relevant
o The degree to which evidence proves an issue goes to the weight of the evidence

DIRECT EVIDENCE V. CIRCUMSTANTIAL EVIDENCE

o Direct evidence
1. Evidence, which if believed, proves a fact
o Circumstantial (indirect) evidence
1. Evidence, which if believed, proves a fact, and from that fact you may logically and reasonably
conclude that another fact exists.
2. Also relevant if it meets the standard.
o Circumstantial evidence requires inferences of guilt to be made, while direct evidence does not.

APPLICATION OF LAW

State v. Mosby 581 So.2d 1060 - Mistaken Identity

 Court examines the relevance of evidence of similar offenses committed by a person other than the
accused offered by him in support of his defense theory of mistaken identity to show that he did not
commit the offense.

State v. Wilkinson 612 So.2d 833 - Motive

 The type of evidence that might have compelled a person to commit the crime.
 Court addresses the relevance of evidence that tends to show a person's motive to commit a crime.
This case deals with showing a lack of money as a motive to commit a robbery.

Old Chief v. United States 519 u.s. 172 - Effect of Stipulation on Relevancy
  Consider whether evidence is logically relevant when certain alternative evidence exists on the same
issue
 In this case, a stipulation by opposing counsel to the issue

3.2 EXCLUDING RELEVANT EVIDENCE

ART. 403 EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION, OR WASTE OF TIME
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or
waste of time.

 While the law lean towards relevant evidence being admissible, not all relevant evidence is
admissible
 Art. 403 places limitations on the admissibility of relevant evidence
 In some instances other interests may outweigh the value of admitting the evidence.

ART 403 BALANCING TEST

 Art. 403 requires a balancing of the probative value of the evidence against the danger of unfair
prejudice, confusion of the issues, misleading the jury, or consideratoins of undue delay, or waste of
time.
 If the dangers of art. 403 substantially outweigh the probative value of the evidence sought to be
admitted, then the evidence should be excluded.

PROBATIVE VALUE
 In order to apply a balancing test under art. 403, we must consider the weight of the evidence
towards proving the consequential fact.
 The probative value of evidence is the degree to which it actually proves or disproves a relevant issue
in the case, as opposed to the relevancy standard which only requires any tendency to prove a
consequential fact
 Here we are concerned with how many bricks are in the wall because the probative value is weighed
against the danger

DETERMINING PROBATIVE VALUE OF EVIDENCE

 The court considers
o The more inferences involved, the lower the probative value of the evidence.
o The strength of the inferences and whether some of them can be easily explained away.
(fractionalized)
o The availability of alternative evidence to prove the same point, some of which may be less
prejudicial than the proffered evidence. (lowers probative value)

UNFAIRLY PREJUDICIAL
 Evidence is said to be unfairly prejudicial if it has an undue tendency to suggest decision on an
improper basis, such as based on passion, prejudice, bias, etc.
 Also defined as evidence that makes conviction more likely because it provokes an emotional
response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant
wholly apart from its judgment as to his guilt or innocence of the crime charged.
 Such evidence is only excluded if its probative value toward proving/disproving consequential fact it
is substantially outweighed by the danger of unfair prejudice.
 o This is an evidentiary determination made by the trial judge and depends upon the facts of
the case.
 Evidence is also excluded if the probative value is substantially outweighed by other factors.

3.2.1 PREJUDICIAL EFFECT OF OTHER CRIMES AND EFFECT OF

STIPULATION

ART. 404 CHARACTER EVIDENCE GENERALLY NOT ADMISSIBLE IN CIVIL OR

CRIMINAL TRIAL TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMINAL ACTS
 Art. 404 excludes evidence of other crimes, wrongs, or acts from being offered against an accused
because of its potential to cause the trier of fact to convent the defendant on an improper bias.
o Would cause them to have a belief that the accused is a bad person who likely acted in
conformity with the bad character in the case at hand.
o Discussed in more detail in chapter 6.

Old Chief v. United States

 Court weighs probative value of offering the actual name and nature of another crime that is an element
of a case, when the issue has been stipulated to against its risk of unfair prejudice.
o The u.s. sup court found the actual name/nature of the crime to be unfairly prejudicial in light of
the stipulation
o The louisiana sup court in Ball, finds name/nature of underlying crime not unfairly prejudicial
even in light of the stipulation.
 The availability of an evidentiary alternative that is less prejudicial lowers the probative value of the
proffered evidence

3.2.2 GRUESOME PHOTOGRAPHS

 Gruesome photos are probably one of objected to on the grounds that they are unfairly prejudicial.
o Could have the tendency to overwhelm the jurors' reason and lead them to convict without
sufficient other evidence.
 La. courts have held that the mere fact that they are gruesome does not necessarily render it admissible
 Generally, photos are admissible if they illustrate any fact, shed light upon any fact or issue in the case, or
are relevant to describe the person, place, or thing depicted.
o Must be relevant for some reason other than exciting emotions of the jurors
o the photos may be “relevant to show the manner of death and the location, placement, and
number of the bullet wounds on the victim’s body, how the crime was committed, or some other
relevant issue in the case."
 Courts will attempt to lessen the prejudicial effect by
o Limiting the number of photos introduced
o Limiting the size of the photos
o Ordering phots be presented in black and white
o Make the deliberation later to give time for emotions to die down

3.2.3 ADMISSIBILITY OF VIDEOS

 Evaluated under the same standard as gruesome photos.
 A video may be admitted into evidence to corroborate other testimony in a case such as the location of
the body, the manner of death, the specific intent to kill, the number, location, and severity of wounds,
and the cause of death
  An actual video of an incident can give additional insight as to the specifics of how an incident occurred
that words cannot explain.
 Video corroborates a witness's testimony and increases the believability

3.2.4 CONFUSING THE ISSUES

 Evidence may be excluded as confusing the issues if it would tend to distract the jury from the
proper issues and lead them to focus on issues that are not before them to decide
o If the danger of confusing the issues outweighs the probative value, then the evidence
should be excluded

3.2.5 WASTE OF TIME/CUMULATIVE EVIDENCE

 Evidence may also be excluded if its probative value is substantially outweighed by the danger that
the evidence will result in undue delay or waste of time
 Undue delay and waste of time apply where the evidence relates to the event in question but is
overkill
o Permits a judge to exclude the testimony of additional witnesses as cumulative

3.2.6 MISLEADING THE JURY

 Misleading the jury refers to the possibility that the jury might attach undue weight to the evidence
 For example, a government report on safety of tires was excluded under Article 403 because
the jury may have been influenced by the official character of the report to afford it greater
weight than it was worth.
 Additionally, polygraph tests are generally excluded because of the weight the jury might
give them.
 4 – WITNESSES AND
TESTIMONIAL
EVIDENCE
4.1 COMPETENCY
4.2 PERSONAL KNOWLEDGE REQUIREMENT
4.3 OATH OR AFFIRMATION
4.4 DISQUALIFICATION OF JUUDGE AND JUROR AS WITNESS
4.5 EXAMINATION OF WITNESSES
4.6 CALLING AND QUESTIONING OF WITNESSES BY COURT
4.7 SEQUESTRATION OF WITNESSES
4.8 LAY OPINION TESTIMONY
 4.1 COMPETENCY
ART. 601 GENERAL RULE OF COMPETENCY
Every person of proper understanding is competent to be a witness except as otherwise provided by
legislation.

REQUIREMENT THAT WITNESSES BE COMPETENT

 Capable and up to the task of testifying at trial
 The witness must be able to determine the difference between the truth and a lie and can understand his
duty to be truthful as a witness in a proceeding.

PROPER UNDERSTANDING (THE TEST FOR COMPETENCY)

 The witness's general ability to distinguish between the truth and a lie, and to understand the duty to be
truthful as a witness in the proceeding.

COMPETENCY DOES NOT DEPEND UPON

 Whether a witness is likely to lie
 Bias
 Interest in the case

CHALLENGE OF COMPETENCY
 The person claiming lack of competency has a burden of proving it
 Objection to witness competency must be made before the witness is sworn
 Judge makes competency determinations under the authority of 104 and will not be overturned on appeal
absent manifest error.
o Evidence rules are not used except as to the rules relative to privileges
 Expert opinions may be considered in determining.
 There is no set method the court must use to determine a witness's competency. The court generally asks
questions to determine if the person has the proper understanding to testify.

COMPETENCY OF CHILDREN
 Not determined by age - age is not dispositive
 The standard to determine is the same as any other witness
o Proper understanding
 Court considers
o Answers to questions
o Child's overall demeanor including whether it appears as though the child has been coached.
 A witness could be permitted to testify to a statement made by a child outside of court that conforms to a
hearsay exception, even if the child would be incompetent to testify personally at the trial.

MENTAL DISORDERS/DEFECTS
 Does not automatically render a person incompetent to testify
 The "proper understanding" standard applies.

CONVICTION OF CRIME AND OTHER CREDIBILITY ISSUES

 Do not affect the witness's competency to testify
 May affect the weight the trier of fact gives to the testimony
 4.2 PERSONAL KNOWLEDGE REQUIREMENT
ART. 602 LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has
personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the
testimony of the witness himself. This article is subject to the provisions of art. 703, relating to opinion
testimony by expert witnesses.

REQUIREMENT THAT WITNESSES HAVE FIRST-HAND KNOWLEDGE

 All witnesses must testify about information acquired from the use of their own senses rather than
from information obtained from someone else.
 First-hand knowledge requirement favors a preference that witnesses testify to factual testimony,
with conclusions and inferences being left to the trier of the fact to make.
o Ex. "we’d much rather have a witness testify that the driver, “ran stop signs, exceeded the
speed limit, and weaved across the dividing line.” The trier of fact can then conclude that
the driver drove recklessly."

EVIDENCE SUFFICIENT TO SUPPORT A FINDING

 Before the witness testifies to a matter, it must first be shown (evidence sufficient to support a
finding), through testimony or otherwise, that the witness has first-hand knowledge of the matter
about which he will testify (foundation)
 Foundational information may also come from sources outside the witness himself.
o Ex. A witness may be asked if anyone else was around when the accident occurred to which
the witness will name the eyewitness.
o Witness may then take the stand to testify as to what occurred.

RELATIONSHIP TO HEARSAY RULES

 Overlaps with rules precluding hearsay testimony and thus, should be read in conjunction with
hearsay rules (and exceptions)

RELATIONSHIP TO LAY OPINION TESTIMONY

 Should also be read in conjunction with the provision governing lay witness opinions
o Places certain limitations on a lay witness's ability to give opinion testimony
o Art. 701 requires that lay witnesses may only give opinions that are rationally based on first-
hand knowledge of the information upon which he bases his opinion.
 When opinions are given by expert witnesses
o May be based on first-hand knowledge or information made known to them
o May consider witness statements, medical examinations, accident reports, ect.
 4.3 OATH OR AFFIRMATION
ART. 603 OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or
affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to
do so.

 A witness is not required to explain why he chooses to affirm rather than swear.
 Failure to require oath or affirmation before testifying, is reversible error.
 Violation of rule may occur in many ways:
o Judge might ask witness or party questions on the record in open court without asking
witness to take the stand and without swearing witness in and consider his answers in
deciding the case.
o Judge might consider outburst of person in courtroom in deciding a case or issues

4.4 DISQUALIFICATION OF JUDGE AND JUROR

AS WITNESS
JUDGE AS WITNESS
ART. 604 DISQUALIFICATION OF JUDGE AS WITNESS
The judge presiding at trial may not testify in that trial as a witness. No objection need be made in order to
preserve the point.

 May not testify in a trial, or other hearings in which the defendant's liberty is at stake, over which he is
presiding.
 To violate this rule, it is not necessary that the judge actually be sworn as a witness and formally testify;
Statements from the bench of a testimonial nature during presentation of evidence may also violate the
prohibition.
 Judge shall also not comment upon the facts of the case either by commenting upon or recapitulating the
evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not
proved, or refuted.
 No objection need be made in order to preserve issue for appeal
 If judge may be called as a witness, he should be recused

JUROR AS WITNESS
ART. 605 DISQUALIFICATION OF JUROR AS WITNESS
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 he
is sitting as a juror. If he is called to testify, the opposing party shall be afforded an opportunity to object out of the
presence of the jury.

B. Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the
effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from
the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may
testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in
criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention.
Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded
from testifying be received for these purposes.

 May not testify as a witness in a trial in which he will serve as a juror.

 Typically discovered and cured during voir dire
 Opposing party given the opportunity to object outside of the presence of the jury.

JURY SHIELD LAW

ART. 606(B) JURY SHEILD LAW

 Precludes a juror from being called to testify as a witness regarding a verdict rendered while sitting
as a juror on a case.
 Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury's deliberations or to the effect of anything upon his
or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith.
 Internal influences are protected.
 Intended to preserve the confidentiality and finality of jury verdicts, and the confidentiality of
discussion among jurors.

EXCEPTION TO JURY SHIELD LAW - OUTSIDE INFLUENCES

 Art. 606(b) does not prohibit a juror from testifying on the question of whether any outside influence
was improperly inserted into the jury deliberations.
 In a criminal case
o May also be allowed to testify to extraneous prejudicial information brought to the jury's
attention
o Nor may his affidavit or evidence of any statement by him concerning a matter about which
he would be precluded from testifying be received for these purposes.
○ No outside person presented evidence to the jury

4.5 EXAMINATION OF WITNESSES

ART. 611 MODE AND ORDER OF INTERROGATION AND PRESENTATION
A. Control by court. Except as provided by this Article and Code of Criminal Procedure Article 773, the
parties to a proceeding have the primary responsibility of presenting the evidence and examining the
witnesses. The court, however, 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; and

(3) Protect witnesses from harassment or undue embarrassment.

B. Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the
case, including credibility. However, in a civil case, when a party or person identified with a party has been
called as a witness by an adverse party to testify only as to particular aspects of the case, the court shall limit
the scope of cross-examination to matters testified to on direct examination, unless the interests of justice
otherwise require.
C. Leading questions. Generally, leading questions should not be used on the direct examination of a
witness except as may be necessary to develop his testimony and in examining an expert witness on his
opinions and inferences. However, when a party calls a hostile witness, a witness who is unable or unwilling
to respond to proper questioning, an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions. Generally, leading questions should be permitted on cross-
examination. However, the court ordinarily shall prohibit counsel for a party from using leading questions
when that party or a person identified with him is examined by his counsel, even when the party or a person
identified with him has been called as a witness by another party and tendered for cross-examination.

D. Scope of redirect examination; recross examination. A witness who has been cross-examined is subject
to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to
other matters in the case. When the court has allowed a party to bring out new matter on redirect, the other
parties shall be provided an opportunity to recross on such matters.

E. Rebuttal evidence. The plaintiff in a civil case and the state in a criminal prosecution shall have the right
to rebut evidence adduced by their opponents.

 Evidence is primarily elicited at trial through the examination of witnesses conducted by attorneys
for the parties, and with some exceptions, questions from the court.
 Examinations of witnesses take the form of:
o Direct examinations
 Conducted by the party calling the witness
o Cross-examinations
 Conducted by the adverse party
o Redirect examinations
 Conducted by the party calling the witness after he has been cross-examined, if
necessary;
o Recross examinations
 Conducted by the party adverse to the party calling the witness after he has been
redirected if necessary; and
o Further recross and redirect examination at the discretion of the court.

JUDGE'S ROLE IN EXAMINATION OF WITNESSES - 611(A)

 Since trial judges have a responsibility to ensure that all matters before them proceed in a legally
proper, orderly, and expeditious and fair manner, they must also regulate and exercise such control
in the interrogation of witnesses.

DIRECT EXAMINATION OF WITNESSES

 Conducted by party who calls the witness
 The party asks short, open-ended questions of the witness to walk the witness through his
testimony eliciting the evidence needed to build the case
o Usually in the form of who, what, when, where, why, and how
 Allows witness to testify from his own first-hand knowledge of events without prompting or
suggestion from the examining attorney
 Not permitted to ask leading questions unless it falls within one of the exceptions
o One that suggests the answer to the witness
USE OF LEADING QUESTIONS ON DIRECT EXAMINATION
 Generally, leading questions should not be used on the direct examination of a witness except as:

1) may be necessary to develop his testimony and

2) in examining an expert witness on his opinions and inferences. However,
3) when a party calls a hostile witness,
4) a witness who is unable or unwilling to respond to proper questioning,
5) an adverse party, or
6) a witness identified with an adverse party,

 If falls within one of these exceptions, interrogation may be by leading questions.

 Counsel may also lead a witness when asking introductory or basic information, or otherwise
undisputed preliminary issues
o However, if opposing counsel were to object, the examining attorney could either respond
that he may question the witness as such under the exception to Article 611(C), or he may
simply rephrase the questions.

CROSS-EXAMINATION – 611(B)
 Leading questions are permissible on cross-examination, except when a party is being cross-
examined by his own counsel.
 Usually referred to as wide open cross (in la) because the law states that a witness may be cross-
examined on any matter relevant to any issue in the case, including credibility.
o Not limited to only those matters covered during direct examination by the opposing party.
 When a party or person identified with a party has been called as a witness by an adverse party to
testify as to particular aspects of the case, the court shall limit the scope of cross-examination to
those matters he testified to on direct examination, unless the interests of justice otherwise
require.
 How would you respond to the following objections during cross examination?
o Objection: counsel is leading the witness
 Leading questions are allowed on cross.
o Objection: counsel is questioning the witness beyond the scope of direct examination
 Cross examination is not limited to only those matters covered on direct, witness
can be questioned on any relevant information

REDIRECT/RECROSS EXAMINATION – 611(D)

SCOPE OF REDIRECT
 After a witness has been cross-examined, if the party calling him examines him again, it is a redirect
 Redirect is limited to matters covered on cross-examination and, in the discretion of the court, other
matters in the case.
 In the discretion of the court, considers
o time, whether counsel had sufficient opportunity to inquire into the issue on direct
examination, whether the matter has been proven by another witness(es), and the
defendant’s constitutional right to present a defense as well as other factors
SCOPE OF RECROSS EXAMINATION
 Limited in scope to only those matters brought out on redirect examination.
REBUTTAL – 611(E)
 Plaintiff/prosecution has a right to rebut evidence presented by the defense after the defense closes
their case.
 Evidence presented by P in rebuttal must truly contradict or counter the evidence presented by the
defense rather than just be a repetition of evidence already presented in the case in chief.

4.6 CALLING AND QUESTIONING OF WITNESSES

BY COURT
ART. 614 CALLING AND QUESTIONING OF WITNESSES BY COURT
A. Calling by court. The court, at the request of a party or if otherwise authorized by legislation, may call
witnesses, and all parties are entitled to examine witnesses thus called.

B. Questioning by court. The court may question witnesses, whether called by itself or by a party.

C. Objections. Objections to the calling of witnesses by the court or to questioning of witnesses by it may be
made at the time or at the next available opportunity when the jury is not present.

D. Exception. In a jury trial, the court may not call or examine a witness, except upon the express consent of
all parties, which consent shall not be requested within the hearing of the jury.

4.7 SEQUESTRATION OF WITNESSES

ART. 615 EXCLUSION OF WITNESSES
A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order
that the witnesses be excluded from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In
the interests of justice, the court may exempt any witness from its order of exclusion.

B. Exceptions. This Article does not authorize exclusion of any of the following:

(1) A party who is a natural person.

(2) A single officer or single employee of a party which is not a natural person designated as its
representative or case agent by its attorney.

(3) A person whose presence is shown by a party to be essential to the presentation of his cause
such as an expert.
*must be some demonstrable need to have them in the courtroom while other witnesses
are testifying.

(4) The victim of the offense or the family of the victim.

C. Violation of exclusion order. A court may impose appropriate sanctions for violations of its exclusion
order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient,
disqualification of the witness.

RULE OF SEQUESTRATION
 The rule requires witnesses to remain outside of the courtroom, and not discuss the case with other witnesses to
prevent them from being influenced by the testimony of other witnesses
 Counsel should request that the witnesses be placed under the rule of sequestration in order to be able to later
complain on appeal.
o The court shall, if requested
o The court may, if not requested

EXPERT WITNESSES
 Ordinarily exempt from the rule, however if primarily a fact witness, then it is proper that he be placed under
sequestration order
 They are considered to be essential to the presentation of the case
 May base opinion and conclusions on information made known to him at or before the proceeding

VICTIM OR VICTIM'S FAMILY

 Exempt from rule
 Defendant's family has no right to remain if they will be called as witnesses
 Defendant has a right to remain but can be removed for reasons such as outburst or other behavioral problems

REPRESENTATIVES OF PARTY WHO IS NOT A NATURAL PERSON

 Typically, only one person is designated but can have an additional if they are essential to the presentation of the
party's case
 Ex. CEO

ALLEGATION OF VIOLATION/BURDEN OF PROOF

 The party alleging the harm has the burden of proving the following by preponderance of the evidence through
witnesses and/or argument
o That a violation has occurred; and
o That the violation substantially prejudiced his case in being able to cross-examine witnesses, or in
developing facts.
 Violation is considered harmless where there is no evidence that the violation of the sequestration order actually
altered or influenced that witness's testimony
 Only a party who can prove that a violation occurred, and that they were prejudiced, has a right to a remedy

VIOLATION OF EXCLUSION ORDER/SANCTION

 Various sanctions may be imposed including
o Holding the witness in contempt
o Instructions to the jury
o Limiting testimony of witnesses
o Disqualification of the witness
 Exclusion of witnesses should always be a last resort , especially in a case in which the party has no knowledge of the
violation and did not acquiesce in or procure the violation.
 In a criminal trial such an exclusion may violate a defendant’s constitutional rights to call witnesses on his behalf.
 In fact, Louisiana courts have held that, “[e]xcluding the witness’s testimony, in the absence of a sequestration
violation with the consent or knowledge of the defendant or his counsel, is not a constitutionally permissible means
[of] insuring reliable testimony. As a result, in a criminal case, witnesses should not be excluded when the rule has
been violated unless the party in some way consented to, knew about, procured or acquiesced in the violation. "

PRESERVING SEQUESTRATION RULINGS FOR APPEAL

  Must have requested that the witness be placed under the rule

4.8 LAY OPINION TESTIMONY

 Preferences is that a lay witness testimony be factual and allow the jury to draw conclusions based on those facts,
however law provides authority for opinion testimony from witnesses if specific criteria is met.
 Rules depend on if a person has been qualified as an expert witness or if the witness is testifying as a lay witness
 Expert
o Qualified to testify as an expert in a particular field based on specialized knowledge
o If not, then lay witness
 Lay
o Opinions or conclusions that could be drawn by any reasonable person based on common experiences

ART. 701 OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or
inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

RATIONALLY BASED OPINIONS OR INFERENCES

 Opinions of lay witnesses can be no more than reasonable inferences that could be drawn by any reasonable person,
and not requiring any specialized knowledge, skill, training, or expertise
 Ex. person's emotional state or appearance, person's handwriting, voice, intoxication, speed of vehicles, etc.

BASED ON PERSONAL PERCEPTIONS

 Two significant aspects
o The witness must have personal first-hand knowledge of the underlying facts upon which his opinion is
based, and not based on information relayed to him by someone else; and
o The opinion or inferences of the lay witness must be based on facts perceived by the witness
 What he personally saw, heard, touched, smelled, etc.

FOUNDATION TO SHOW FIRST-HAND KNOWLEDGE

 Prior to giving testimony, sufficient foundation must be laid to establish the underlying facts upon which the opinion
is based.
 Evidence sufficient to support a finding that the witness had first-hand knowledge
 Common objection
o Insufficient foundation for a lay witness

HELPFULNESS
 Lay witness testimony must be helpful to the finder of fact to either
o Understanding the witness's testimony; or
o Determining a fact in issue
 Courts have found opinion testimony not to be helpful if
o it is not based on personal observations because it merely constituted speculation
o It embraces the ultimate issue to be determined by the trier of fact
 If the opinions are not helpful, they will be excluded
 Conclusory opinions are not?
LAY WITNESSES WITH EXPERTISE IN A PARTICULAR FIELD
 Prior to a witness testifying as an expert, he usually testifies to whatever training, skills, experience,
education, etc. qualifies him to give expert testimony.
o Then tendered as expert
o Court declares whether been accepted as expert
o If procedure is not followed, then witness is considered as lay witness
 Quasi-experts (should not be allowed)
o Some courts allow specialized testimony if the witness could have been qualified as an
expert because they actually possess the necessary training, education, etc.

OPINIONS SPECIFICALLY EXCLUDED

 In certain areas of louisiana law, opinion testimony has been specifically excluded
o Art 608a - A character witness shall not express his personal opinion as to the character of
the witness who credibility is in issue
o Art. 412 - Excludes opinion evidence of the past sexual behavior of the victim in cases in
which the accuses is charged with a crime involving sexual assaultive behavior

COMMON OBJECTIONS
 The testimony is beyond the scope of lay witness opinion
 The testimony lacks sufficient foundation for lay witness opinion
 Improper lay witness opinion
 5A – HEARSAY RULE
AND EXCEPTIONS
5.1 DEFINITION OF HEARSAY AND THE HEARSAY RULE
5.2 NON-HEARSAY – STATEMENTS NOT BEING OFFERED TO
PROVE THE TRUTH OF THE MATTER ASSERTED
 VERBAL ACTS

 VERBAL PART OF AN ACT

 NONASSERTIVE CONDUCT

 STATE OF MIND OF HEARER/RECEIVER

 STATE OF MIND OF DECLARANT

 NOTICE/KNOWLEDGE OF RECEIVER/HEARER

 NOTICE/KNOWLEDGE OF DECLARANT

 PRIOR INCONSISTENT/CONSISTENT STATEMENTS

5.3 MULTIPLE HEARSAY (DOUBLE HEARSAY)

 5.1 DEFINITION OF HEARSAY AND THE
HEARSAY RULE
ART. 801 DEFINITIONS
The following definitions apply under this Chapter:
A. Statement. A "statement" is:
(1) An oral or written assertion; or
(2) Nonverbal conduct of a person, if it is intended by him as an assertion.
B. Declarant. A "declarant" is a person who makes a statement.
C. Hearsay. "Hearsay" is an out of court statement, other than one made by the declarant while
testifying at the present trial or hearing, offered in evidence to prove the truth of the matter
asserted.
*****
ART. 802 HEARSAY RULE
Hearsay is not admissible except as otherwise provided by this Code or other legislation.

HEARSAY ANALYSIS
 Is the statement hearsay?
o If no, then it is admissible. If yes, then..
 Do any of the exceptions apply? 803 804
o If yes, the statements are admissible.
o If no, then..
 Is the statement non-hearsay under 801D?
o If no, statement is inadmissible.
o If yes, statements are admissible.
STATEMENT
 A statement is
o An oral or written assertion; or
o Nonverbal conduct of a person, if it is intended by him as an assertion
 Ex. Pointing to someone in making an identification
o Silence
 Ex. Silence in the face of accusations may be an assertion
 Must assert a fact or convey a message being offered to prove the truth
 If no message is conveyed, hearsay is not implicated

OUTSIDE OF PRESENT TRIAL/HEARING

 Made at a time prior to the trial or hearing at which the witness is currently testifying

DECLARANT
 The person who made the out of court statement
 Can also be the witness himself if he is currently testifying about a statement he or she previously made
outside of the present trial
 Assertions made by animals and computers do not present the dangers of hearsay
o If the information is a printout of human input or is human-stored information, then it is subject
to the hearsay rule
o Ex. A log of the numbers dialed on a phone bill (computer-generated) is not hearsay, if a person
printed out his list of contracts from his phone (human-stored information), it would be subject
to the hearsay rule.

TRUTH OF THE MATTER ASSERTED

 Must assert a fact
 Hearsay only if the statement is being offered in evidence to prove what the statement is asserting, which
requires the trier of fact to believe that what the statement asserted is true.
o Questions generally do not assert facts, although there are exceptions
o Demands generally do not assert fact
 If the statement is being offered in evidence to prove something other than what it asserts, and it is irrelevant
as to whether the statement is true, the statement is not hearsay.
 The credibility of the out-of-court declarant is at issue
o The jury must believe that what she said is true without her being present to testify under oath and
subject to cross-examination about what she claims she saw

HEARSAY REQUIREMENTS
o Steps to determine whether a statement is hearsay
 Identify the statement
 Oral or written assertion, or assertive conduct
 Made by a person; and
 Was made outside of the present trial or hearing
 Determine what is being asserted in the statement
 Determine what the statement is being offered into evidence to prove
o If 2 = 3, hearsay
o If 2 does not = 3, not hearsay
 Being offered for some other reason
DISCUSSION AND APPLICATION OF THE HEARSAY RULE - See pg 178

5.2 NON-HEARSAY - STATEMENTS NOT BEING

OFFERED TO PROVE THE TRUTH OF THE
MATTER ASSERTED
NON-HEARSAY STATEMENTS
 A statement that is being offered for some other reason other than to prove the truth of the matter
asserted
 Must be shown that the statement is relevant for a reason other than its assertive value (Why is the
statement being offered?)
 If a statement has both a non-hearsay purpose and a hearsay purpose, the court weighs the significance
of both purposes to determine if the non-hearsay purpose is at issue. If not, the statement cannot be
used as a ruse to admit prejudicial hearsay, such as when the reason that a police officer took the action
that he took is not at issue.

CATEGORIES OF NON-HEARSAY
VERBAL ACTS
 A verbal act is a statement, the making of which has substantive legal significance apart from its truth or
gives rise to legal consequences.
 A verbal act is an operative fact that gives rise to legal consequences; a statement to which the law
attaches duties and liabilities.
o Referred to as an operative fact
 Ex.
o Defamatory statement
 Boss is a thief
 Not being offered to prove boss is a thief but being offered to prove that employee
made the statement and defamed his boss
 Gives rise to legal consequences
o Statements constituting offer and acceptance in a contract
 Gives rise to legal consequences (being bound by a contract)
o Statement granting permission
o Statement requesting services in a solicitation of a prostitute case
o Statement threatening someone

VERBAL PART OF AN ACT

 A statement made that accompanies an ambiguous physical act that characterizes and gives meaning to
the act.
 The words spoken along with an act are needed to understand the act.
 Ex. A person hands somebody $5 and while handing them $5 says here is the 5 I owe you
 The explanatory words that accompany and give character to the act are not hearsay when only a
person's outward manifestations, rather than the person's subjective intent, is at issue.
NON-ASSERTIVE CONDUCT
 If facial expressions or gestures are meant to assert a fact, then they are called assertive conduct and
considered hearsay, if offered to prove the truth of the matter asserted.
 Conduct not intended as an assertion.
 Conduct that does not convey a message is not hearsay
 Test for nonverbal conduct
o Whether the person intends to assert a message from the conduct
 Ex. If you observe a colleague leave the office for lunch, then come back into the office to retrieve his
umbrella, you would conclude that it must be raining outside.
o Colleague was not intending to convey the message that it was raining
o Conduct is non-assertive
o If same colleague left but then came back and peeped into the office and waived umbrella at
you, he may be trying to convey that it is raining outside - hearsay if conduct offered to prove
that it is raining outside
 Examples.
o Nonassertive
 Therapist leaves child in room alone to play with anatomically correct dolls and when
she walks back in, the child has one doll on top of the other doll.
o Assertive
 The therapist asks the child to put the dolls in the position of her and her adult neighbor
who molested her and she puts one doll on top of the other one.

STATE OF MIND OF HEARER/RECEIVER

 Statement offered to prove the state of mind of the hearer or receiver of the statement or to the effect
that the statement had on the receiver/hearer.
 Ex. If a man tells another man that he is having an affair with his wife, the statement may be offered into
evidence in a murder trial to show the effect that the statement had on the hearer (def) which led to his
killing the man with whom his wife was having the affair.
o The statement is being offered to prove the hearer's motive for the killing. It is irrelevant as to
whether the statement was actually true. All that matters is that the defendant heard it, and
since he believed it to be true, he killed the declarant.
 Other examples of states of mind that a statement may be offered to prove
o Good/bad faith
 A seller of a car had been told that the car had only had one owner. If the seller believed
it, then it shows his good faith, even if not actually true.
o Fear
o Bias
o Reasonableness/unreasonableness of a person's conduct
o Why a person took the action that he took
 State of mind must be relevant in case
o Ex. Person is charged with fraud for selling counterfeit paintings.
 Evidence that he was told by the gallery from which he purchased the paintings that
they were authentic could be offered to prove his good faith.
 It would show that he believed the paintings to be authentic based on what he was told.
  It is irrelevant to whether the statements made to him were actually true. It just matter
that he believed it was true. And it would be relevant to prove that he did not intend to
defraud anyone.

 Hearsay state of mind vs. non-hearsay state of mind

o Nonhearsay state of mind is not to be confused with the state of mind exception to the hearsay
rule in art. 803(3)
o Nonhearsay state of mind is not be asserted as truth.
o State of mind statement may be hearsay and offered as truth if it falls within the exception.

STATE OF MIND OF DECLARANT

 A statement offered to show the state of mind of the person who made the statement.
 Can be used to show the declarant's fear, intent, bias, good/bad faith, knowledge, reasonableness in
taking particular action or in reaching a particular conclusion etc.
 Ex. Evidence that a person claimed that she could fly could be offered to show that the person had
psychological problems.
o Not being offered to show that the person could fly.
 Ex. If a father states that his son is lazy, ungrateful and unappreciative, it may help to prove that father
wanted to cut him out of the will. Whether he's actually ungrateful is irrelevant.
 To distinguish between hearsay and nonhearsay state of mind
o Hearsay
 The declarant is actually stating what his state of mind is
o Nonhearsay
 The hearer is required to infer the state of mind

NOTICE/KNOWLEDGE OF RECEIVER/HEARER
 Statements that are being offered to show that the receiver/hearer had notice or knowledge of some
relevant information contained in the statement. (knowledge of something of which she
heard/readCould be an or statement or a sign posted
 Typically relevant in cases where a person claims he was unaware of something that he should have
known, and the statement is being offered to show that he did, in fact, have notice or knowledge of the
information contained in the statement because the statement was made to him.
 Ex. If a person claims to have no knowledge of a dangerous condition of something in his custody, the
fact that someone had complained about the condition would be admissible to show that he had
knowledge of the condition.

NOTICE/KNOWLEDGE OF DECLARANT
 A statement made by a person that show his knowledge of something that is relevant is non-hearsay.
 Ex. A person states that he should have his dog trained, or that his dog doesn't like kids, would show that
he had knowledge of the dog's vicious nature and what the dog might do to kinds.
 Ex. In a number of strict liability cases in which the law requires that the defendant either knew or should
have known of a dangerous condition, yet failed to repair it, a statement he made that shows his
knowledge would not be hearsay.
o Example: in proving contributory negligence, complaint letter from tenant to the landlord would
show that the tenant knew of a dangerous condition.
PRIOR INCONSISTENT/CONSISTENT STATEMENTS
 A prior inconsistent statement is a prior statement of a witness that is inconsistent with his current
testimony offered to impeach the witness, i.e. attack the witness's credibility or truthfulness.
 A prior consistent statement is a prior statement of a witness that is consistent with his current
testimony offered to rebut a charge of recent fabrication or undue influence or motive.
 Ex. If witness testified that the light was green when he went through it, evidence may be offered to
show that at the time of the incident, he stated that it was red.
o Statement is being offered only to show that the witness has stated two different versions of the
facts, and thus should not be believed.
 In some instances, if a witness is accused of recently fabricating his current testimony or lying due to
some improper motive or influence, a prior statement of a witness that is consistent with his current
testimony that was made prior to the charge of recent fabrication or undue influence may be offered to
rehabilitate the witness's credibility.
 Ex. A child witness testifies that she was molested at her father's house. If, during cross, the child is
accused of fabricating bc she wants to live with mother, evidence that the child made the same
statement before the custody battle began may be offered to rebut the accusation that the child is lying
only bc of the custody issue.
o Being offered to rehabilitate a witness whose credibility has been attacked.

5.3 MULTIPLE HEARSAY (DOUBLE HEARSAY)

ART. 805 HEARSAY WITHIN HEARSAY
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 by legislation.

o The out of court statement to which a witness testifies in court also contains another statement
= hearsay within hearsay
o Ex. Written documents that are being offered in court that contain statements made by others.
(medical reports) Documents are out-of-court statements = always hearsay.

EACH STATEMENT MUST CONFORM TO EXCEPTION

 To be admissible, each statement must conform to an exception.
 Ex. Medical records fall within the business record exception found in 803(6) and the statement that the
patient's statement that her stomach was hurting would conform to the "then existing physical
condition" exception 803(3). If the court finds that the statement within the document does not conform
to an exception, the record would be admissible but the statement would be excluded. The statement
could be excised out of the record.
 Double hearsay is often presented when a person testifies about an out-of-court statement that contains
other statements.
 If outer statement is not admissible, then none of the inner statements may be admissible.
 5B – INTRODUCTION TO
EXCEPTIONS TO
HEARSAY RULE;
AVAILABILITY OF
DECLARANT
IMMATERIAL
5.4 HEARSAY EXCEPTIONS GENERALLY
5.5 PRESENT SENSE IMPRESSIONS
5.6 EXCITED UTTERANCE
5.7 THEN EXISTING MENTAL CONDITIONS (STATE OF MIND)
5.8 THEN EXISTING PHYSICAL CONDITION
5.9 STATEMENTS MADE FOR THE PURPOSES OF MEDICAL TREATMENT AND DIAGNOSIS IN
CONNECTION WITH TREATMENT
5.10 RECORDED RECOLLECTIONS AND WRITINGS USED TO REFRESH MEMORY
5.11 BUSINESS RECORDS AND ABSENCE OF ENTRY IN BUSINESS RECORDS
5.11.1 OUT OF STATE BUSINESS RECORDS (FOREIGN RECORDS OF REGULARLY CONDUCTED BUSINESS)
5.12 PUBLIC RECORDS AND ABSENCE OF ENTRY IN BUSINESS RECORDS
5.13 OTHER HEARSAY EXCEPTIONS THAT APPLY WHETHER OR NOT THE DECLARANT IS AVAILABLE
 RECORDS OF VITAL STATISTICS
 RECORDS OF RELIGIOUS ORGINATIONS
 MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES
 FAMILY RECORDS
 RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
 STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY
 STATEMENTS IN ANCIENT DOCUMENTS
 MARKET REPORTS, COMMERCIAL PUBLICATIONS
 LEARNED TREATISES
 REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY
 REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY
 REPUATION AS TO CHARACTER
 JUDGMENT OF PREVIOUS CONVICTION
 JUDGMENT AS TO PERSONAL, FAMILY, OR GENERAL HISTORY, OR BOUNDARIES
 TESTIMONY AS TO AGE
 5.4 HEARSAY EXCEPTIONS GENERALLY
 While hearsay statements are generally inadmissible, there are several exceptions to this rule.
 Many of the exceptions have been developed recognizing that under circumstances, many of the
dangers inherent in admitting hearsay statements are not present, therefore rendering the
statements presumptively trustworthy.
 Statements have been excluded from the hearsay ban because they fall within certain categories of
circumstantial reliability.
 However, even though statements falling into these categories are presumptively trustworthy, in
circumstances that indicate that the statement is grossly patently unreliable, the statement should
nonetheless still be excluded

EXCEPTIONS APPLY TO HEARSAY STATEMENTS ONLY

 It is only after you determine that a statement is in fact hearsay that the exceptions become applicable.
 Thus, the first step in analyzing should be to determine whether the statement is hearsay.
o Then you determine whether exception applies.

CATEGORIES OF HEARSAY EXCEPTIONS

 There are two main categories
o Art. 803
 Exceptions that apply whether or not the declarant is available to testify at the trial.
o Art. 804
 These exceptions require that the person who made the statement be unavailable to
testify prior to admitting his statements.
 Ex. If they are dead, ill, or for some other reason is prevented from testifying in court,
not caused by the proponent of the statement.

HEARSAY EXEMPTIONS - STATUTORY NON-HEARSAY

 Statements that would technically be hearsay but are exempt from the hearsay ban in art. 801(d)(1)(c).
Under the statute they are defined as not being hearsay.

EXCEPTIONS DO NOT MAKE STATEMENTS ADMISSIBLE

 The statement could still be excluded on other grounds, such as privilege, lack of authentication, 403
balancing test, relevancy, or because admitting the statement would violate 6th amendment right.

HEARSAY VIS A VIS THE 6TH AMENDMENT CONFRONTATION CLAUSE

 Even though a statement conforms with a hearsay exception, it will comport with the requirements of the
confrontation clause only if
o The declarant is currently unavailable
o The statement is testimonial; and
o There was a prior opportunity for cross-examination on the statement

HEARSAY EXCEPTIONS THAT APPLY WHETHER OR NOT THE DECLARANT IS AVAILABLE

 For the exceptions found in 803, the circumstances surrounding the making of the statements are of
sufficient trustworthiness to warrant admitting the statement into evidence even though the witness
might be available to testify.
 However, even though the statements may ordinarily be trustworthy, if the circumstances suggest that a
statement is not reliable, it should be excluded.
 5.5 PRESENT SENSE IMPRESSIONS
ART. 803(1)
 Present sense impression. A statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately thereafter.
 These statements are deemed trustworthy based on the fact that since the statement is being made
contemporaneously with observing what the statement describes, it is unlikely that the declarant
would have the opportunity to fabricate his observations.
 Memory is also unlikely to be an issue since the event is occurring while the statement is being
made.

TWO BASIC REQUIREMENTS

 The statement describes or explains an event or condition; and
 Is being made while perceiving the event or condition or immediately after
 Ex. A person saying "that guy is breaking car windows" while looking at that person breaking car
windows.

PERCEIVING EVENT OR CONDITION

 The declarant must actually perceive the event that he/she is describing.
 Not a statement he heard about or was later told about.

SUBSTANTIAL CONTEMPORANEITY REQUIREMENT

 "during the same time"
 Made while perceiving the event or immediately thereafter
 No material time can pass
 The passage of time allowed between perception and the spoken words is about the amount of time
needed for translating observations into speech
o Should be almost instantly
 Ex. The person looking out the window
o Would not apply if he had to first run downstairs to tell someone about what he saw or
waited for the police to arrive to tell them

DESCRIBING OR EXPLAINING
 Must be one that describes or explains what the declarant is perceiving at the moment, not a
statement that merely relates to what the declarant perceived (excited utterance)
 Ex. If the person stated instead "I hope that guy doesn't break into my car" - would not fit into the
exception.

NO EXCITEMENT NECESSARY
 There is no requirement that the event be an exciting or startling event for the exception to apply.
 5.6 EXCITED UTTERANCE
ART. 803(2)
Excited utterance. A statemen relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.

 Premised on the fact that a person who is under the stress of a startling event lacks the capacity for
reflection and fabrication.
 Also unlikely to have memory issues.
 The key to this exception is the spontaneity of the statement in the face of the startling event.

THREE PRIMARY REQUIREMENTS

 Startling event or condition
 Statement "relating to" a startling event or condition; and
 Made while "still under stress" of a startling event or condition

STARTLING REQUIREMENT
 Requires a startling event that triggers the statement
 Event must be sufficiently startling to render the declarant's normal reflective thought process
inoperative.
o Circumstances should be such that declarant would not likely have had the capacity and
calmness to reflect and fabricate his words before speaking.
 The event must be sufficiently startling to eliminate the declarant's capacity to reflect before
speaking

WHILE UNDER STRESS OF EVENT

 Must still be under the stress of the event.
 Court looks to all surrounding circumstances to determine whether person is still under the stress
o The person themselves
 The age
 Physical and mental state
o Time elapsed
o Whether statement was made in response to questioning
o Whether it was self-serving
o Whether it was an expansion beyond a description of the event and into past or future acts
o Whether between the event and the statement, the declarant performed tasks that required a
reflective thought process
o Characteristics of the event
o Subject matter of the statements
 Most important factor is the time elapsed between the event and the statement
o Court considers whether the time span was of sufficient duration for restoration of the thought
process
o In some instances, time might be suspended if the person is unconscious or disoriented.
  When person comes to, would be deemed to still be under the stress of event since
would not have had an opportunity for reflection and fabrication before making the
statement.
 If declarant is no longer under the stress of the event when the statement is made, exception does not
apply

RELATING TO REQUIREMENT
 Does not have to describe or explain the event, it can be anything related to the event provided that
it is a spontaneous reaction to the occurrence and not a statement that is a result of reflective
thought
 Ex. Building that was on fire. Declarant might state "we've been telling them to fix the faulty wiring in
this old building! Let's get out of here!"
o Not describing anything but related to the event.

5.7 THEN EXISTING MENTAL CONDITION

(STATE OF MIND)
ART. 803(3)
(3) Then existing mental, emotional,…condition. A statement of the declarant's then existing state of mind,
emotion,…(such as intent, plan, motive, design, mental feeling,…), offered to prove the declarant's then
existing condition or his future action. A statement of memory or belief, however, is not admissible to prove
the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of
declarant's testament.

 Excludes statements from the hearsay ban that are expressions of the declarant's state of mind at
the moment in which the statement is made.
 Includes wide range of expressions such as
o Intentions
o Plans
o Desires
o Likes
o Dislikes
o Etc.
 Ex.
o I'm happy
o I'm sad
o I love
 Does not include past mental states
o Ex. I didn't love you when I married you

REQUIREMENTS OF THE RULE

 Must be a statement of a person's then existing mental condition
 Offered to prove the declarant's then existing mental condition or his own future action
 Excludes statement of memory or belief except as it relates to testaments

MUST BE THEN EXISTING MENTAL CONDITION (NOT PAST MENTAL STATE)

  The declarant's mental state at the exact moment the statement is being made
 Statements concerning a mental state from some time in the past are not included (statement of
memory)

STATEMENTS OF MEMORY OR BELIEF EXCLUDED

 Statements of memory are not as reliable as statements of present mental conditions since the
declarant is required to remember how he felt at the time
 Statements of belief are not reliable because the person has no first-hand knowledge of the
assertion
 Two points to keep in mind
o Statements admissible for other purposes/non-hearsay
 Ex. The kids conspiring to kill mother and mother stating she thinks her kids are
trying to kill her. Could be offered to explain why she moved away. (nonhearsay)
not prove that she was killed.
o May be admissible as it relates to the execution, revocation, identification, or terms of a
declarant's testament

MAY BE OFFERED TO PROVE DECLARANT'S FUTURE ACTION

 May be offered to prove that declarant acted in conformity with his intentions

MAY NOT BE OFFERED TO PROVE FUTURE ACTION OF THIRD PARTY

STATE OF MIND MUST BE AT ISSUE

HEARSAY STATE OF MIND VS. NON-HEARSAY STATE OF MIND

 A statement that is an actual expression of one's state of mind, offered to prove the declarant's state
of mind, is hearsay and falls under the exception
 A statement that asserts a fact other than a person's state of mind, from which their state of mind
may be inferred, is not hearsay and is referred to as non-hearsay state of mind.
STATEMENTS MADE IN JEST
 In State v. Taylor, the defense argued that the statements were made in jest, the court allowed the
evidence finding that it constituted direct assertions of defendant's state of mind, was relevant to prove
his motive and intent, and was admissible to prove defendant's future acts.

GARZA V. DELTA TAU DELTA FRATERNITY (I)

 the Louisiana Supreme Court rejects the admissibility of a suicide note under the then existing mental
condition exception to the hearsay rule, on the issue of whether the defendant’s actions led the victim to
commit suicide. The Court reasons that the note exceeds several limitations of the rule including those
regarding: 1) past states of mind; 2) proving conduct of third parties; and 3) statements of memory/belief
offered to prove the thing remembered or believed.
 The note does not fall under this exception to the hearsay rule for three reasons:1) for the most part, the
declarant does not speak of present state of mind, but speaks of past state of mind;952) the declarant
accuses others of wrongdoing, which accusations exceed the statutory limit that the declaration be
offered to prove the declarant’s future action; and 3) the declarant relates memories and beliefs which
are not admissible to prove the facts remembered or believed.

5.8 THEN EXISTING PHYSICAL CONDITION

ART. 803(3) THEN EXISTING PHYSICAL CONDITION
A statement of the declarant's then sensation, or physical condition (such as pain, and bodily health), offered to
prove the declarant's then existing condition or his future action. A statement of memory or belief, however, is
not admissible to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's testament.

 When a person expresses his own present physical condition, his statement may be offered to prove that
he was in fact experiencing that physical condition at that time.
 Premised on the fact that a person's own statement about his physical condition is the most reliable
evidence of his physical condition.
  Does not apply to expressions of memory about past physical conditions.
 Ex.
o My stomach hurts
o I feel nauseous
 Excluded
o My back has been hurting
 These statements need not be made for the purposes of medical treatment, nor must they be made to a
medical provider
 These statements may be made at any time, to anyone, for any purpose

STATEMENTS OF BELIEF NOT OFFERED TO PROVE THING BELIEVED

 What he believed what may have caused the physical condition
 Ex. That may not be offered
o "I think my back is broken" may not be offered to prove that the person's back is broken
 Could possibly be relevant for non-hearsay purposes
 If offered for the state of mind of the declarant can possibly be offered to show that he
was in severe pain.
 Ex. I have a sharp pain in my abdomen. I think I have appendicitis
o Sharp pain conforms; Cause of pain does not

5.9 STATEMENTS MADE FOR PURPOSES OF MEDICAL

TREATMENT AND DIAGNOSIS IN CONNECTION WITH
TREATMENT

ART. 803(4)
(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment.
Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and
describing medical history, or 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 treatment or diagnosis in
connection with treatment.

 Certain statements made to healthcare providers for the purpose of obtaining medical treatment
and medical diagnosis in connection with treatment are excluded from the hearsay ban
 They are deemed reliable because a person is unlikely to fabricate information to a healthcare
provider when the person knows that the healthcare provider is relying on the information, he
provides for the purpose of treating him

REQUIREMENTS
 Statements must be:
o Describing a person's medial history, past or present symptoms, pain, or sensations and/or
statements regarding the cause and circumstances of injury (if reasonably pertinent to
treatment/diagnosis in connection with treatment);
o Made to a healthcare provider; and
o Made for purposes of medical diagnosis and treatment in connection with treatment

TYPES OF STATEMENTS INCLUDED

 Not all statements made to a healthcare provider are permissible under this rule
  Includes statements describing
o Medical history
o Past or present symptoms
o Pain
o Sensations
o Statements regarding the cause and circumstances of injury, if reasonably pertinent to
treatment/diagnosis in connection with treatment
 Only statements relied upon by physicians in their diagnosis and treatment
 Must be in connection with treatment
o Trustworthiness lies in the fact that a person will be unlikely to fabricate information to a
healthcare provider when he knows he will be treated based on the information he provides
 Statements made for the purposes of increasing recovery through litigation are not reliable and thus,
are not included in the rule
 Cause or source of pain, symptoms, or injury
o Allows certain statements about the cause or source of the injuries, if that information is
reasonably pertinent to the treatment and diagnosis
 Ex.
o Patient comes in broken leg and say that he fell down the stairs > admissible
o Patient comes in and states, "my employee pushed me down the stairs after I fired him" >
likely inadmissible

STATEMENT TO HEALTHCARE PROVIDER

 May include
o Nurse
o Emergency medical technicians
o Lab techs
o Others who work under the direction of a physician

OTHERS WITH RELATIONSHIP CAN MAKE THE STATEMENTS, INCLUDING DOCTOR TO DOCTOR
 A third party's statements to the healthcare provider may be included, provided the third party has a
relationship with the patient such that his or her statements are likely to be trustworthy
 Includes such as a parent, spouse, doctor to doctor
 Declarant must have personal knowledge of whatever information relates to the healthcare provider for
purposes of treatment or diagnosis
 Does not include statements made by the doctor to the patient

DISTINGUISHED FROM "THEN PHYSICAL CONDITION"

 A statement made for purposes of medical treatment/diagnosis in connection with treatment, must
actually be made in connection with treatment, while statements of a person's then existing physical
condition need not be made for purposes of medical treatment. They may be made for any purpose.
 Statements made for purposes of medical treatment/diagnosis in connection with treatment must be
made to a healthcare provider, while statements of a person's the existing medical condition may be
made to anyone at any time.
 Statements for purposes of medical treatment or diagnosis may also include statements describing
medical history, past symptoms, and even statements regarding the cause and circumstances of the injury
if pertinent to treatment and diagnosis. Statements of a person's then existing physical condition include
only the person's physical condition when the statement is made.
 Statements for purposes of medical treatment or diagnosis may also be made by someone other than the
declarant if the relationship exists such that the other person's statements are deemed trustworthy.
 Statements of a then existing physical condition must be a statement of a person's own physical
condition. They may not be made by another person.

5.10 RECORDED RECOLLECTIONS AND WRITINGS USED TO REFRESH

MEMORY
ART. 803(5) RECORDED RECOLLECTION.
A memorandum or record concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the
witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence and received as an exhibit but may not itself be taken into the
jury room. This exception is subject to the provisions of Article 612.

ART. 612 WRITING USED TO REFRESH MEMORY

A. Civil cases. In a civil case, any writing, recording, or object may be used by a witness to refresh his memory
while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent
of the writing, recording, or object. If, before or during testimony, a witness has used or uses a writing, recording,
or object to refresh his memory for the purpose of testifying in court, an adverse party is entitled, subject to
Paragraph C, to have the writing, recording, or object produced, if practicable, at the hearing, to inspect it, to
examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the
witness. If production of the writing, recording, or object at the hearing is impracticable, the court may make any
appropriate order, including one for inspection.
B. Criminal cases. In a criminal case, any writing, recording, or object may be used by a witness to refresh his
memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory
independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or
object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine
the witness thereon, and to introduce in evidence those portions which relate to the testimony of the
witness.
C. Claim of irrelevance. If it is claimed that a writing or recording contains matters not related to the subject
matter of the testimony the court shall examine it in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be
preserved and made available to the appellate court in the event of an appeal.
D. Failure to produce. If a writing, recording, or object is not produced or delivered pursuant to an order
under this Article, the court shall make any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall only be one excluding the testimony or, if the court in its
discretion determines that the interests of justice so require, declaring a mistrial.

 When a witness who once had first-hand knowledge of a matter may be unable to testify from
memory, they may use any writing, recording or other object to attempt to refresh memory on the
matter
 If the item refreshes memory
o Testify from his own memory, independent of the writing, recording, or object
 If doesn't refresh memory, and still cannot testify from his own independent recollection
o The thing may be admitted into evidence and be read or heard by the jury, provided
foundation is laid but cannot be taken into the jury deliberation room
 The recorded recollection exception to the hearsay rule excludes such a writing or recording from
the hearsay ban.
 Must first attempt to refresh the witness's independent recollection before the item may be
introduced into evidence
REFRESHING MEMORY UNDER ART. 612 - PREREQUISITE TO ART. 803(5)
 A prerequisite to evidence being introduced under art 803(5) is to first comply with the requirements
of art. 612
 Used when a witness cannot remember at trial
 Procedure used to refresh memory
o Establish witness once had personal knowledge of the incident
o Ask the witness if anything would refresh memory of incident
 Could be writing, recording, or other object
o Approach the witness stand and hand them thing, and ask witness to review it silently
o After witness has reviewed the thing, ask witness if memory has been sufficiently refreshed
to testify from his own independent memory
o If witness memory is refreshed, take thing away and witness should testify from own
independent recollection
o If independent memory has not been refreshed and witness cannot testify independently,
counsel can seek to admit the thing as a recorded recollection or move on to another topic.
 The item itself is not evidence, the testimony is

ANY WRITING, RECORDING, OR OBJECT MAY BE USED

 Need not be a formal document
 May include
o Sound recordings, pictures, depositions, unsworn statements, diaries, news articles, police
reports, notes, letters, etc. regardless of who prepared them
 Immaterial who prepared the item because testimony is the evidence not the item itself

ADVERSE PARTY RIGHTS

 An adverse party will have certain rights to any item used by a witness to refresh memory so should
be cautious about which item the witness is allowed to use
 Criminal trial
o Adverse party has a right to
 Inspect it
 Examine the witness thereon; and
 Introduce in evidence those portions which relate to the testimony of the witness
 Civil trial
o Adverse party has a right to items used by witness both before and during his testimony to:
 Inspect it
 Examine the witness thereon; and
 Introduce in evidence those portions which relate to the testimony of the witness
 Attorney may ask a witness if he reviewed anything in preparation for his testimony to determine
whether there may be documents they are entitled to
o Could reveal information favorable to that side and could seek to have material offered into
evidence
o An attorney should ensure that whatever a witness uses to prepare for trial, or that he uses
to refresh a witness's memory is something they would be comfortable sharing with
opposing counsel
RECORDED RECOLLECTION [ART. 803(5)]
 Only comes into play after counsel has attempted to refresh a witness's independent memory of a matter
and witness asserts that they still cannot testify fully and accurately from his own independent memory
 Attorney can then seek to have item admitted into evidence and have witness read the item aloud in the
presence of the jury
 Foundation for admitting the item
o Establish that the witness once had personal knowledge of the matter
o Establish that, despite an attempt to refresh the memory, the witness still has insufficient
recollection to enable him to testify fully and accurately
 Need not have complete memory loss
o Establish that the record was made/adopted/verified by the witness
 Need not have made the item, provided that witness has adopted or verified it
 Ex. A doctor dictates information to another party who prepares the document, the
doctor later signs the document adopting its contents
o Establish that the record was made/adopted/verified when the matter was fresh in the witness's
memory
o Establish that the record correctly reflects the witness's knowledge of the matter
 Once foundational requirements are met, the item must still overcome any other objections that any
other document would have to overcome
 Document cannot be taken into the jury room; Ensures that jury does not give the item too much weight

POLICE REPORTS
 For public policy reasons, usually not admitted under this exception
 An officer able to refresh his recollection using his report as needed under 612, but the entire report
will not be admitted
 6th amendment rights are implicated

WHEN REFRESHING MEMORY, KEEP THE FOLLOWING IN MIND

 Matter is not admitted into evidence; it is read silently; and if it is a recording, it should be heard
outside of the presence of the jury
 Any writing, recording or object may be used (broadest meaning), and it is immaterial who prepared
it - the testimony is the evidence, not the object used

5.11 BUSINESS RECORDS AND ABSENCE OF ENTRY IN BUSINESS

RECORDS
ART. 803(6)-(7)
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation,
in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of
acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted
by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make and to keep the memorandum, report, record, or
data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source
of information or the method or circumstances of preparation indicate lack of trustworthiness. This
exception is inapplicable unless the recorded information was furnished to the business either by a person
who was routinely acting for the business in reporting the information or in circumstances under which the
statement would not be excluded by the hearsay rule. The term "business" as used in this Paragraph includes
business, institution, association, profession, occupation, and calling of every kind, whether or not conducted
for profit. Public records and reports which are specifically excluded from the public records exception by
Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

(7) Absence of entry in records of regularly conducted business activity. Evidence that a matter is not
included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the
provisions of Paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a
kind of which a memorandum, report, record, or data compilation was regularly made and preserved unless
the sources of information or other circumstances indicate lack of trustworthiness.

 Under the business records exception, certain records made and kept in the course of the regularly
conducted business activity may be excluded from the hearsay ban.

UNDERLYING POLICY
 Deemed reliable if certain requirements are met establishing how the records were made and kept
because it is presumed that a business is likely to keep and maintain accurate and reliable records for
the success and maintenance of the business

REQUIREMENTS
 Must be a business
o Any business, institution, association, profession, occupation, calling, including those that
are not for profit
 Records must be in the form of
o Memorandum, report, record, data compilation in any form
 May include records digitally maintained such as pdf and voice recordings (recorded
meeting)
 Record must concern
o Acts, events, conditions, opinions, diagnosis
 Foundational requirements through a competent witness
o That the record was made at or near the time of the event it records
o That the record was made by
 A person with personal knowledge; or
 Based on information transmitted to him by a person with personal knowledge
o That the record was furnished to the business by either
 A person routinely acting for the business in reporting the information; or
 In circumstances in which the statement would not be excluded by the hearsay rule
o That the record was made and kept in the course of a regularly conducted business activity;
and
o That it was the regular practice of that business activity to make and to keep that record
 The source of information or the method or circumstances of preparation must not indicate lack of
trustworthiness
 Does not include public records and reports which are specifically excluded from the public records
exception by art. 803(8)(b)
APPLICABILITY OF THE EXCEPTION
 Must be actually kept
o Written or otherwise tangibly recoverable rather than merely oral

COMPETENT WITNESS MUST TESTIFY

 Must be one that can testify from first-hand knowledge as to the practices and procedures of the
business for keeping and maintaining its records
 Witness might be a custodian of the records or other qualified person, such as a company employee
or supervisor who would actually have such knowledge
 Need not been the preparer of the records, nor have first-hand knowledge of the contents of the
record
 Would be able to authenticate the record and testify that the record sought to be introduced is in
fact what it purports to be and that it accurately reflects the information contained therein

MUST NOT INDICATE LACK OF TRUSTWORTHINESS

 If the source of the information or methods or circumstances of preparation indicate lack of
trustworthiness
 If the source of entry cannot be determined
 If the preparer had an interest in the outcome of the litigation or had a motive to falsify the record
 Or if the record was prepared in anticipation of litigation

CERTAIN PUBLIC RECORDS EXCLUDED

 Excludes any public record that is excluded from admissibility under the public records exception 803(8)
(b)
 If not specifically excluded, there may be circumstances when the record may be introduced under this
exception if all the requirements are met

HOSPITALS
 Hospital records may be admitted into evidence under this exception if requirements are met
 May also be admitted under r.s. 13:3714
o Provides that a copy of a hospital record certified by the administrator or medical records
librarian shall be received in evidence as prima facie proof of its contents

ABSENCES OF ENTRY
 803(7) provides that evidence may be offered showing that a matter is not included in a business record
to prove the nonoccurrence or nonexistence of the matter, if the matter was a kind of which would have
been included in the business record had it occurred.
 This exception likely exists to prevent the exclusion of such evidence, since asserts non-existence of a fact

5.11.1 OUT-OF-STATE BUSINESS RECORDS (FOREIGN

RECORDS OF REGULARLY CONDUCTED BUSINESS)
ART. 803.1 HEARSAY EXCEPTIONS; FOREIGN RECORDS OF REGULARLY CONDUCTED
ACTIVITY
A.(1) Except as otherwise provided by this Code, in a criminal proceeding, a foreign record of regularly conducted activity, or a
copy of such record, shall not be excluded as evidence by the hearsay rule if a foreign certification attests to the following:
 (a) Such record 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; and

(b) Such record was kept in the course of a regularly conducted business activity; and

(c) The business activity made such a record as a regular practice; and

(d) If such record is not the original, such record is a duplicate of the original, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.

(2) A party intending to offer in evidence pursuant to this Article a foreign record of regularly conducted activity shall provide
written notice of that intention to each other party not less than ten days prior to trial. A motion opposing admission in
evidence of such record shall be made by the opposing party and determined by the court before trial. Failure by a party to file
such motion before trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may
grant relief from the waiver.

B. As used in this Article:

(1) "Foreign record of regularly conducted activity" means a memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, maintained by a business domiciled in a jurisdiction outside the territorial limits
of the state of Louisiana.

(2) "Foreign certification" means a written declaration made and signed in a jurisdiction outside the territorial limits of the
state of Louisiana by the custodian of a business record of regularly conducted activity or another qualified person that, if
falsely made, would subject the maker to criminal penalty under the laws of the state of Louisiana.

(3) "Business" includes a business, institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit.

 Excludes business records from the hearsay rule from businesses domiciled in a state outside of the
state of Louisiana in criminal trials.
 A business includes all of the same entities as for the business records exception 803(6)

CERTIFICATION FROM THE STATE ATTESTING TO THE FOLLOWING

 The custodian of the foreign business record of a regularly conducted business activity or another
qualified person must attest (make a written declaration that, if false, would be subjected to criminal
penalty) that the following exists
o Such record 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;
o Such record was kept in the course of a regularly conducted business activity;
o The business activity made such a record as a regular practice; and
o If such record is not the original, such record is a duplicate of the original, unless the source
of information or the method or circumstances of preparation indicate lack of
trustworthiness
 Foundational requirements are same

PROCEDURES TO OFFER FOREIGN BUSINESS RECORD

 Proponent must provide written notice of intent to use to other party not less than 10 days prior to
trial
 A motion opposing shall be made by opposing party and determined by the court before trial
o Failure constitutes waiver of objection but court for cause shown may grant relief from the
waiver
 5.12 PUBLIC RECORDS AND ABSENCE OF ENTRY IN
BUSINESS RECORDS
ART. 803(8) PUBLIC RECORDS AND REPORTS
(a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:

(i) Its regularly conducted and regularly recorded activities;

(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or

(iii) Factual findings resulting from an investigation made pursuant to authority granted by law. Factual findings are
conclusions of fact reached by a governmental agency and may be based upon information furnished to it by persons
other than agents and employees of that agency.

(b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:

(i) Investigative reports by police and other law enforcement personnel or the notification of administrative
sanctions form which records the administrative sanctions proceedings conducted pursuant to Code of Criminal
Procedure Article 899.1 or R.S. 15:574.7.
o Designed to respect 6th amendment right to confront and cross examine
o Excludes whether offered by state or defense

(ii) Investigative reports prepared by or for any government, public office, or public agency when offered by that or
any other government, public office, or public agency in a case in which it is a party.
o The nature of the party that proffers the report is crucial to admissibility
o Applies to reports offered by an agency when they are a party to the action
o May be offered against the agency if it fits the requirements a subparagraph (a) (by defendant)

(iii) Factual findings offered by the prosecution in a criminal case.

o To respect 6th amendment right to confront and cross examine
o Does not exclude the criminal defendant from offering such reports

(iv) Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation
into the facts and circumstances on which the present proceeding is based or an investigation into a similar
occurrence or occurrences.
o Investigation into the cause of death of a person
o Neither party may offer reports of factual findings

ART. 803(10) ABSENCE OF PUBLIC RECORD OR ENTRY

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or
nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly
made and preserved by a public office or agency, evidence in the form of a certification in accordance with Article
902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or
entry.

 Provides that certain records, reports, or data compilations of state or federal public offices or agencies
will not be subject to the hearsay rule.

POLICY FOR ADMITTING EVIDENCE

 The basis for excluding public records from the hearsay rule is an assumption that these records are trustworthy
because public officials will perform their duties properly, that they have no motive and thus are not likely to falsify
the records, and that open records statutes requiring disclosure of public records will foster accuracy
 There is a need for admission of such records because it is unlikely that public officials will remember details of all
events or occurrences they encounter in their positions
REQUIREMENTS FOR THE PUBLIC RECORDS EXCEPTION:
o Must be a record, report, or data compilation;
o Of a state or federal public agency or public office; and
o Must be set forth:
 Its regularly conducted and regularly recorded activities
 Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or
 Factual findings resulting from an investigation made pursuant to authority granted by law
 Not excluded under art. 803(8)(b)(i)-(iv)

TYPES OF RECORDS INCLUDED

 Does not include a broad range of government records
 Includes those records setting forth:
o Its regularly conducted and regularly recorded activities;
o Matters observed pursuant to duty imposed by law and as to which there was a duty to report;
o or Factual findings resulting from an investigation made pursuant to authority granted by law

REGULARLY CONDUCTED AND REGULARLY RECORDED ACTIVITIES

 Include matters of which the agency official
o has first-hand knowledge, or
o Is information supplied to the record maker by an agency official who had first-hand knowledge
 Records made by one official that include information provided by another official who is acting in the course of his
duties are covered by this article
o Internal hearsay within the government agency will not affect admissibility
 Records pertaining to the core activities of the agency
o Certificates of titles, Registry, Death, Birth, Etc.

MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW WITH DUTY TO REPORT

 Requires
o First-hand knowledge of someone from the agency, or
o Supplied by someone from the agency
 May be used to prove things like
o Temperature and weather conditions, building code violations, etc.

FACTUAL FINDING FROM INVESTIGATIONS

 Sets forth conclusions and inferences drawn from the facts
 Conclusions may be drawn from
o Personal observations of an agency official, or
o Information supplied to the agency by others with first-hand knowledge who are not
affiliated with the agency
 The court should ensure that the basis for the conclusions is trustworthy
 Records include
o results of studies conducted in a wide range of subjects such as reports on the nature,
causes, and spread of diseases, on product safety, on discrimination in housing or
workplace, on incidence of crime, on educational attainments, and so forth
 Factual findings will include evaluative statements such as expert opinions
o The record should only be allowed if the person expressing the opinion has the proper
qualifications > foundation should be laid
 Permits factual conclusions, does not permit legal conclusions
EXCLUDED PUBLIC RECORDS
 Excludes four categories of public records
o Investigative reports by police and other law enforcement personnel;
 Applies to either civil or criminal cases, and regardless to who is offering it
 Designed to respect 6th amendment right to confrontation and cross-examination in a
criminal case
o Investigative reports prepared by or for any government, public office, or public agency when
offered by that or any other government, public office, or public agency in a case in which it is a
party
 It is the nature of the party that proffers the report that is crucial to admissibility
 Applies to reports offered by an agency when they are a party to the action
 Report may be offered against the government agency, such as by an accused in a
criminal case, if it fits one of the three categories in subparagraph (a)
o Factual findings offered by the prosecution in a criminal case; and
 Is in further respect for a defendant's constitutional rights to confrontation and cross-
examination
 Does not preclude a criminal defendant from offering such report
o Factual findings resulting from investigation of a particular complaint, case, or incident, including
an investigation into the facts and circumstances on which the present proceedings is based or
an investigation into a similar occurrence or occurrences
 While a person could offer the factual findings of the general investigation, the factual
findings in the particular complaint could not be introduced under the exception in any
case
 Neither party may offer reports of factual findings into a particular case or complaint.
 Exclusions are designed to exclude untrustworthy evidence, to avoid encroaching upon an accused's right
to confrontation and to preserve the function of the jury as the ultimate finder of fact.

EXCLUSIONS MAY NOT BE OFFERED AS BUSINESS records

 Business record exception specifically states that public records and reports which are specifically
excluded from the public records exception shall not qualify as an exception to the hearsay rule
under that exception

UNTRUSTWORTHY RECORDS EXCLUDED

OTHER PUBLIC RECORDS

 Does not affect the admissibility of public records specifically allowed under special statutes
o Prison and clerk of court certificates admissible under the habitual offender law
o Admissibility of records of louisiana bureau of criminal identification
o Admissibility of results of laboratory examinations
o Admissibility of records of convictions of motor vehicle offenses
o Admissibility of hospital records

ABSENCE OF ENTRY IN PUBLIC RECORDS

 If a public record is one that is regularly made and preserved by a public office or agency, evidence
of:
o The absence of a public record; or
o The absence of entry in a public record
 Is admissible to prove
o The absence of the record; or
 o The nonexistence or nonoccurrence of the matter
 To prove such absence of entry or the nonexistence or nonoccurrence of the matter, evidence may
be offered in the form of either
o A certification in accordance with art 902 (self-authenticating); or
o Testimony, that diligent search failed to disclose the record, report, statement, or data
compilation, or entry

5.13 OTHER HEARSAY EXCEPTIONS THAT

APPLY WHETHER OR NOT THE DECLARANT IS
AVAILABLE
ART. 803

(9) Records of vital statistics. Records or data compilations, in any form, of birth, filiation, adoption, or death,
including fetal death, still birth, and abortion, or of marital status, including divorce and annulment, if the report
thereof was made to a public office pursuant to requirements of law, and any record included within the Louisiana
Vital Statistics Laws.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, filiation, ancestry,
relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept
record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or
other person authorized by the rules or practices of a religious organization or by law to perform the act certified,
and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles,
genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones,
or the like.

(14) Records of documents affecting an interest in property. Records of documents purporting to establish or
affect an interest in property to the extent that their admission is authorized by other legislation.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting
to establish or affect an interest in property if the matter stated was relevant to the purpose of the document,
unless dealings with the property since the document was made have been inconsistent with the truth of the
statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence thirty years or more the
authenticity of which is established, or statements in a recorded document as provided by other legislation.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other
published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or, in a
civil case, relied upon by him in direct examination, statements contained in published treatises, periodicals, or
pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, such a
statement may be read into evidence and received as an exhibit but may not be taken into the jury room.
 Trustworthy
o No bias in any particular case; They are aware that their material will be read and evaluated by
others in their field and accordingly feel a strong pressure to be accurate

(19) Reputation concerning personal or family history. Reputation, arising before the controversy, among
members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a
person's birth, adoption, marriage, divorce, death, filiation, relationship by blood, adoption, or marriage, ancestry,
or other similar fact of his personal or family history.
 Does not include rumor or gossip, but instead requires a foundation that the witness is familiar with the
reputation at issue

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the
controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of
general history important to the community or state or nation in which located.

(21) Reputation as to character. Reputation of a person's character among his associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty
(but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or
imprisonment in excess of six months, to prove any fact essential to sustain the judgment. This exception does not
permit the prosecutor in a criminal prosecution to offer as evidence the judgment of conviction of a person other
than the accused, except for the purpose of attacking the credibility of a witness. The pendency of an appeal may
be shown but does not affect admissibility.

(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of
personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by
evidence of reputation.

(24) Testimony as to age. A witness' testimony as to his own age.

5C – HEARSAY
EXCEPTIONS WHEN THE
DECLARANT IS
UNAVAILABLE
5.14 UNAVAILABILITY
5.15 FORMER TESTIMONY
5.16 STATEMENT UNDER BELIEF OF IMPENDING DEATH
(DYING DECLARATION)
5.17 STATEMENT AGAINST INTEREST
5.18 FAMILY HEARSAY
5.19 COMPLAINT OF SEXUAL ASSAULTIVE BEHAVIOR
5.20 OTHER EXCEPTIONS
5.21 FOREFEITURE BY WRONGDOING
  These exception apply only when the declarant is unavailable to testify at the trial or hearing

5.14 UNAVAILABILITY
ART. 804(A) DEFINITION OF UNAVAILABILITY
A. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant
cannot or will not appear in court and testify to the substance of his statement made outside of court. This
includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of his statement;

(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court
to do so;

(3) Testifies to a lack of memory of the subject matter of his statement;

(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental
illness, infirmity, or other sufficient cause; or

(5) Is absent from the hearing and the proponent of his statement has been unable to procure his
attendance by process or other reasonable means. A declarant is not unavailable as a witness if his
exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing
of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

o Preliminary requirement that must be met prior to admitting any statement is that the proponent of
the statement must prove that the declarant is unavailable to the statement him or herself
o Legal determination that the judge makes
o Includes witness who
 Physically absent from the court or dead
 May be present but is unwilling or unable to testify due to physical or mental illness, loss of
memory, asserting a privilege, etc
o Can also plead the 5th (self-incrimination)

BURDEN OF PROOF
o The proponent of the statement has the burden of proving that the declarant is unavailable, and
must show diligent and good faith effort to obtain the witness's presence at trial
o The lengths to try to procure a witness is a question of reasonableness

PROCUREMENT OR WRONGDOING
o If the proponent procures or does any wrongdoing (anything to prevent the witness from testifying),
he cannot claim the witness is unavailable
o For the specific purpose of preventing him from testifying
CONFRONTATION CLAUSE CONCERNS
o This exception does not alleviate the defendant's 6th amendment right
o State must also overcome confrontation clause issues in Crawford which requires that the accused
must have had a prior opportunity to cross-examine the declarant on the statement

UNAVAILABLE DECLARANT IS NOT AN EXCEPTION

o Not in itself an exception
o 804(b) contains specific exceptions that require a preliminary showing that the declarant is
unavailable

5.15 FORMER TESTIMONY

ART. 804(B)(1)
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a
witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different
proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party
with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or
inferences, however, is not admissible under this exception.

o A witness's testimony that was given at a prior proceeding

REQUIREMENTS FOR EXCEPTION

o Witness must be currently unavailable to testify at the present proceeding; and
o Criminal trial
 The defendant must have had an opportunity and similar motive to develop the prior
testimony through direct, cross-examination, or redirect examination
o Civil trial
 Either the party themselves, or another party with similar interest must have had an
opportunity and similar motive to develop the prior testimony through direct, cross, or
redirect examination

THE FORMER TESTIMONY

o A witness might have previously given testimony at either a criminal or civil proceeding that was
either a part of the same or a different proceeding.
o Could also be given in an earlier hearing in the same proceeding
 Preliminary exam
 Might be same trial or a different one, such as a co-defendants case
 Prior criminal trial
 Mistrial or a codefendant trial
 Prior civil case
 Motion hearing (motion to suppress)
CRIMINAL CASES
SIMILAR MOTIVE TO DEVELOP TESTIMONY
o Would exist if, for example, the examining party in the prior proceeding would have been trying to
bring out, test, or address similar types of issues, elements, defenses, etc.

ADDITIONAL PROTECTIONS FOR USE IN CRIMINAL TRIALS

o Requirements that must have been met at prior hearing
 Accused must have had counsel
 Witness under oath
 Witness was cross-examined or defendant validly waived
 Witness is currently unavailable; and
 State made a good faith effort to locate the witness

OPPORTUNITY TO DEVELOP TESTIMONY

o Further, the statute requires that the examining party (the defendant himself in a criminal case)
need only have had a prior opportunity to develop the prior testimony; there is no requirement that
the examination of the witness in fact took place in the prior proceeding. Thus, if the defendant
validly waived the right to cross-examination (not under duress, threats, etc.), then this requirement
is met.

CIVIL CASES
 Any party with a similar interest must had an opportunity and similar motive to develop the
witness's prior testimony through the applicable examination

EXPERT WITNESSES EXCLUDED FROM EXCEPTION

DEPOSITIONS
o Do not fall into this exception
o Generally covered in the La. C.Civ.Pr

Whether in a civil or criminal case, there is no requirement that the person against whom the testimony is
now offered actually examined the witness, only that they had the prior opportunity to do so. The prior
examination may be either direct, cross, or redirect examination

5.16 STATEMENT UNDER BELIEF OF IMPENDING DEATH (DYING

DECLARATION)

ART. 804(B)(2) STATEMENT UNDER BELIEF OF IMPENDING DEATH

(2) A statement made by a declarant while believing that his death was imminent, concerning the cause or
circumstances of what he believed to be his impending death.
REQUIREMENTS
o The declarant is unavailable
o The declarant believes his death is imminent (whether or not he actually dies); and
o The statement concerns the cause or circumstances of what he believed to be his impending death
o Applies in both any criminal and civil trials, not only homicide prosecutions arising out of the
declarant's death

UNAVAILABILITY REQUIREMENT
o The unavailability need not be due to the declarant dying as a result of the circumstances leading to
make the statement

MUST BELIEVE DEATH IS IMMINENT

o Subjective requirement essential to the reliability and trustworthiness of the statement
o Not sufficient that he believe he will die soon or someday. Ex. 2 months to live
o Must believe that he is in the process of dying then
o Question for the judge
 May consider all facts and circumstances surrounding the making of the statement,
including
 The declarant's own words
 The nature of wounds
 Others present
 The time between the wound and injury
 The opinion of a physician
 Or any other factors that suggest that the declarant has abandoned all hope or
expectation of recovery

CONCERNING CAUSE OR CIRCUMSTANCES OF DEATH

o The content of the statement
o Only includes statements concerning the cause or circumstances about what the declarant believed
to be his impending death
 Must generally relate to the person, mode, or mechanism
o Generally information regarding the person, motive, or mechanism which made up the cause or
circumstances of the impending death is what generally satisfies the content requirement
o Any adequate form of communication is sufficient
 Words
 Signals
 Handwritten notes
 Nodding head in response to leading questions

FIRST HAND KNOWLEDGE REQUIREMENT

o Must concern facts about what the declarant saw or heard himself
o Expression of conjecture or suspicion will be excluded

SUICIDE NOTES
o Not generally held to be dying declarations because at the time the note is written the declarant's
death is not imminent in that the mortal wound has not been inflicted
 o The time and reflection of writing the note removes the reliability and trustworthiness of a
statement

5.17 STATEMENT AGAINST INTEREST

ART. 804(B)(3) STATEMENT AGAINST INTEREST.
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against
another, that a reasonable man in his position would not have made the statement unless he believed it to
be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the
statement.

o Excludes from the hearsay rule statements that are so far contrary from the declarant's pecuniary,
proprietary, or other interests, or that might subject him to civil liability, that it is unlikely that the
person would have made the statement unless it were true
o If declarant has a motive to lie, or statement unreliable, the statement should still be excluded.

REQUIREMENTS
o Declarant is unavailable; and
o Against the declarant's interest (when made); and sometimes
o Corroborating circumstances of trustworthiness if it is an incriminating statement that exculpates a
third party
o Applies in both civil and criminal trials
o Does not have to be a party to the suit

TYPES OF STATEMENTS AGAINST INTEREST

 At the time the statement is made
 Generally includes
o A statement against the declarant's pecuniary (financial) interests
 Against a financial gain that he might otherwise receive
o A statement against his propriety (property) interests
o A statement that might subject the declarant to civil liability
 Ex. I was texting when I ran into the back of your car
 Ex. I knew I should have replaced that broken step
o A statement that might subject the declarant to criminal liability
o A statement that could render a claim that the declarant has against another person invalid
 Ex. If person has claim against boss for sexual harassment. "my boss didn't sexually
harass me" would render claim invalid

STATEMENT MUST BE AGAINST INTEREST WHEN MADE AND WITH KNOWLEDGE

o Must be against the declarant's interest at the time the statement is made
o Declarant must be aware that his statement is against his interest when he makes it
o Statements may be made to anyone

SPECIAL CIRCUMSTANCES IN DETERMINING "AGAINST INTEREST"

  Some statements may have both self-serving as well as disserving aspects
 Some may do more to shift blame to another than to incriminate oneself
 May incriminate oneself while completely exculpating another for improper motives

"I DID IT"

o Clearly inculpatory and can be deemed a statement against the declarant's interest

"I DID THIS PART, BUT I DID NOT DO THAT PART"

o Both self-serving (exculpatory) and disserving (inculpatory)
o The statement is against the declarant's interest only if the disserving aspect predominates
o Ex. "I didn't hit her intentionally"
 Admits to hitting but did not do it on purpose
 Statement protects the declarant's pecuniary and proprietary interest
 Statement more exculpatory than incriminating because he denies a key element required for liability

"I DID IT AND HE HELPED ME DO IT"

o Contains inculpatory statement but also implicates third party
o Interlocking statement
o Only the statement against the declarant's interest should be admissible
o Use of the statement would violate right to confront if declarant chooses not to testify (if jointly tried)

"I DID IT, AND HE DIDN'T DO ANYTHING"

o Incriminating statements offered to exculpate a third party accused
o Ex. Someone who has nothing to lose, already serving life sentence
o To admit statement, there must also be corroborating circumstances that clearly indicate the trustworthiness of the
statement
o Factors court will consider to determine the reliability of the statement
 Motive to represent
 Whether the statement was made spontaneously
 Timing of declaration
 Relationship between parties
 Relationship between witness and accused
 General character of the witness
 Whether other people heard the out-of-court statement
 Whether made voluntarily after Miranda
 Whether made to curry favor with authorities

CONFRONTATION CLAUSE
o Many of the statements may be excluded under the CC even though they may conform to the exception because they
are often testimonial
o May only be offered against an accused (who is not the declarant) if he has had a prior opportunity to cross-examine
the declarant on the statement

SIMILARITY TO ADMISSIONS FOUND IN ART. 801(D)(1) (STATUTORY)

o Overlap in some cases
o Difference in the two types of statements
 Statements against interest do not require that the declarant be a party in the action, as in the case of
admissions
 A statement against interest need not be offered against the declarant, as in the case of admissions
 An admission need not be a statement against the declarant's interest, but instead can be any statement
made by a party that is being offered against him; and
  A statement against interest requires that the declarant be unavailable for admissibility, whereas availability
is immaterial with respect to an admission

5.18 FAMILY HEARSAY

ART. 804(B)(4) STATEMENT OF PERSONAL OR FAMILY HISTORY
(a) A statement, made before the controversy, concerning the declarant's own birth, adoption, marriage,
divorce, filiation, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or
family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or

(b) A statement, made before the controversy, concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have accurate information concerning the matter
declared.

o Statements regarding births, adoption, marriage, divorce, marriage, death etc.

REQUIREMENTS
o Declarant unavailable; and
o Statement made before the controversy began; and
o Either
 Regarding the declarant's own personal or family history; or
 Regarding the personal or family history of another person, related to the declarant; or
 Regarding the personal or family history of another person who was close enough to the
family to have accurate information
 Ex. Statement made by family physician

NO FIRST-HAND KNOWLEDGE REQUIREMENT

MUST LAY FOUNDATION TO ESTABLISH RELATIONSHIP

 5.19 COMPLAINT OF SEXUALLY ASSAULTIVE
BEHAVIOR
ART. 804(B)(5) COMPLAINT OF SEXUALLY ASSAULTIVE BEHAVIOR
A statement made by a person under the age of twelve years and the statement is one of initial or otherwise
trustworthy complaint of sexually assaultive behavior.

REQUIREMENTS
o The declarant is unavailable; and
o The statement must be either
 One of initial complaint of sexually assaultive behavior; or
 An otherwise trustworthy complaint of sexually assaultive behavior
o And; the declarant must be a person under the age of 12

UNAVAILABLE REQUIREMENT
o Might be available for a number of reasons including the fact that the child is unwilling or unable to
testify due to lack of memory or other reason
o In some instances, courts have found that a child victim should not be made to testify due to
psychological impact that testifying at trial could have on the child

DISTINCTION FROM PRIOR STATEMENT OF INITIAL COMPLAINT OF SEXUALLY ASSAULTIVE

BEHAVIOR 801(D)(1)(D)
o Prior statement of initial complaint is exempt if
 Declarant is available
 Capable of being cross-examined on prior statement
 Statement consistent with declarant's statement at trial; and
 Is one of initial complaint
 5.20 OTHER EXCEPTIONS
ART. 804(B)(6) OTHER EXCEPTIONS
In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines
that considering all pertinent circumstances in the particular case the statement is trustworthy, and the
proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence
to establish the fact to which the proffered statement relates and the proponent of the statement makes
known in writing to the adverse party and to the court his intention to offer the statement and the particulars
of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet it. If, under the circumstances of a particular
case, giving of this notice was not practicable or failure to give notice is found by the court to have been
excusable, the court may authorize a delayed notice to be given, and in that event the opposing party is
entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the
evidence.

o A statement that does not fit into any other hearsay exception may be excluded from the hearsay
rule if compelling circumstances justify it

REQUIREMENTS
o Declarant is unavailable;
o Trustworthiness of the statement;
o Showing that the proponent has done all she can do to get admissible evidence on the issue; and
o Written notice to the opponent/court (intent to offer statement; particulars of statement; and name
and address of declarant)

TRUSTWORTHINESS OF THE STATEMENT

o Trustworthiness is determined by considering all pertinent circumstances in the particular case,
including circumstances tending to corroborate the truthfulness of the out of court statement
o The proponent of statement could also demonstrate that the potential dangers of admitting the
hearsay statement are minimal under the circumstances

NOTICE REQUIREMENT
o Must be provided sufficiently in advance of trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet
o The court may authorize a delayed notice to be given if, under the circumstances, the court finds
that giving of the notice was not practicable or the failure to give notice is otherwise excusable
 Opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to
enable him to prepare to meet the evidence

APPLICATION IN CRIMINAL CASES

o La. Sup Court has held that this exception may also apply to criminal cases if its exclusion would
interfere with the defendant's constitutional right to present a defense
o May also be mandated when an accused in a criminal case offers reliable, trustworthy evidence
because of his constitutional right of compulsory process
 5.21 FORFEITURE BY WRONGDOING
ART. 804(B)(7) FORFEITURE BY WRONGDOING
(a) 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.

(b) A party seeking to introduce statements under the forfeiture by wrongdoing hearsay exception shall
establish, by a preponderance of the evidence, that the party against whom the statement is offered,
engaged or acquiesced in the wrongdoing.

o Allows a statement to be offered into evidence against a person who intentionally caused the
unavailability of the witness for the specific purpose of preventing the witness from testifying
against him at trial
o The person who procured the unavailability of the witness to prevent him from testifying is said to
have forfeited his right to confront the witness against him or to object that the witness's statement
is hearsay

REQUIREMENTS
o Party seeking to introduce must establish
 Declarant is unavailable; and
 Proponent must prove by a preponderance of the evidence, that the party against whom the
statement is now offered, procured the unavailability of witness for the purpose of
preventing the witness from testifying

THE DOCTRINE OF "FORFEITURE BY WRONGDOING" OF

THE CONFRONTATION CLAUSE
o Forfeited the right
o Hearsay exceptions are separate and apart from the requirements of the right of confrontation
under the constitution
 The fact that a statement conforms to an exception to the hearsay rule does not necessarily
overcome the constitutional right
o Crawford
 Accused must have had a prior opportunity to cross-examine the declarant regarding the
prior statement
o Exception to confrontation clause
 Forfeiture by wrongdoing

RELATIONSHIP TO THE HEARSAY EXCEPTION

o The admission of a statement against an accused who procured the absence of a witness/declarant
for the purpose of preventing his testimony at trial does not violate an accused's constitutional rights
to confrontation and cross-examination
THE BIG THREE
 Forfeited the right
 Testimony can come in
 Witness unavailable can't use
 5D – STATUTORY NON-
HEARSAY/EXEMPTIONS
TO THE HEARSAY RULES
5.22 PRIOR STATEMENTS
5.22.1 PRIOR INCONSISTENT STATEMENTS
5.22.2 PRIOR CONSISTENT STATEMENTS
5.22.3 IDENTIFICATION
5.22.4 INITIAL COMPLAINT OF SEXUAL ASSAULT
5.23 ADMISSIONS
5.24 THINGS SAID AND DONE
  Statements that would technically be hearsay under the definition
 Legislature has exempted certain types of statements

5.22 PRIOR STATEMENTS

o Statements that a witness made prior to testifying at the current trial
o Requirements
 The person must be present and testifying in court; and
 is subject to being cross-examined concerning his prior statement

5.22.1 PRIOR INCONSISTENT STATEMENTS

ART. 801(D)(1)(A)
A statement is not hearsay if:
(1) the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and
the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the
witness' attention to the statement and the witness has been given the opportunity to admit the fact and where
there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement;

o A prior inconsistent statement is a statement that a witness made prior to currently testifying at the trial
that is inconsistent with his current testimony
o Need not have been made at a prior trial or hearing or under oath.
o Includes statements
 Made to a police officer
 To a friend
 In a deposition
 Etc. whether formal or informal

REQUIREMENTS FOR PRIOR INCONSISTENT STATEMENTS FOR SUBSTANTIVE VALUE

o The declarant testifies
o The declarant is subject to cross-examination about the prior statement;
o Applies to criminal cases;
o The prior statement is inconsistent with his current testimony;
o Witness first given opportunity to admit the fact of the prior statement; and
o Additional evidence corroborates the prior statement

OFFERED FOR SUBSTANTIVE PURPOSES

o To prove the truth of the matter asserted within it, rather than for impeachment purposes

DECLARANT TESTIFIES AT HEARING/SUBJECT TO CROSS-EXAMINATION

OPPORTUNITY TO ADMIT THE FACT

o If witness fails to admit the fact, the proponent may offer extrinsic evidence of the prior statement
through another witness who heard the prior inconsistent statement by the witness
o Ex. "yes, I said that, but I'm telling the truth now"
 Witness admits, proponent cannot offer extrinsic evidence
ADDITIONAL EVIDENCE CORROBORATES
o May be
 Any other witness's statements, or
 Physical evidence

5.22.2 PRIOR CONSISTENT STATEMENTS

ART. 801(D)(1)(B)
Consistent with his testimony and is offered to rebut an express or implied charge against him of recent
fabrication or improper influence or motive

o If a witness is accused, either expressly or implicitly, of testifying to a particular matter only because
of some improper influence or motive to lie, evidence that the witness made a statement consistent
with his current testimony prior to any motive to lie may be offered to rebut the accusation
o May be offered for both its rehabilitative value on the issue of the witness's credibility as well as for
its substantive value to prove the truth of the matter asserted

REQUIREMENTS
o The declarant testifies at the trial or hearing;
o The declarant is subject to cross-examination concerning the prior statement;
o The statement is consistent with his current testimony
o And is offered to rebut an express or implied charge against him of recent fabrication or improper
influence or motive; and
o The statement was made prior to the motive or influence to lie

PRIOR STATEMENT MUST PRECEDE MOTIVE TO LIE

o If the motive to lie already existed when the prior statement was made, then the exception does not
apply

ONLY OFFERED AFTER OPPONENT ATTACKS WITNESS WITH MOTIVE OR INFLUENCE TO LIE
o Need not be expressly made
o Could be implied through line of questioning, voir dire, or from the defense strategy or case theory

5.22.3 IDENTIFICATION
ART. 801(D)(1)(C)
One of identification of a person made after perceiving the person

o Typically, a witness will be asked to identify the defendant as the person who committed the crime
o The prosecution will also seek to offer evidence that the witness was able to identify the suspect at a
time closer to the incident in question, either in a photo lineup or show-up identification or
photographic identification
o May be offered to prove the truth of the matter asserted
o May be the person himself, or if the declarant is unavailable, might be a police officer who
coordinated the identification procedure or any other witness who has first-hand knowledge of the
prior out-of-court identification
o Need not testify consistently with the prior identification for the exemption to apply
  The witness might recant, deny making the statement, or be unable to remember whom he
identified

REQUIREMENTS
o The declarant testifies at the trial;
o Is subject to cross concerning the statement; and
o The statement is one of identification of a person made after perceiving the person

5.22.4 INITIAL COMPLAINT OF SEXUAL ASSAULT

ART. 801(D)(1)(D)
Consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior.

o Under this rule, evidence of the prior statement of sexually assaultive behavior is non-hearsay and is
admissible to prove the truth of the matter asserted in the prior complaint.

REQUIREMENTS
o The declarant testifies at trial or hearing
o The declarant is subject to cross-examination concerning the statement
o The statement is consistent with the declarant's testimony; and
o The statement is one of initial complaint of sexually assaultive behavior

INITIAL COMPLAINT ONLY

o To minimize confrontation problems in potentially having multiple people testify against a defendant
to complaints of sexual assault
o Has been held to apply only to the first "friendly adult" to which a complaint is made
 Usually parent, teacher, pastor, or similar adult
o Subsequent complaints not included

WITNESS TESTIFIES CONSISTENTLY AT TRIAL

o If the witness recants, the prior statement is not admissible under this exception

SEXUALLY ASSAULTIVE BEHAVIOR

o To include initial complaints of rape, aggravated rape, simple rape, sexual battery, aggravated sexual
battery, carnal knowledge of a juvenile, molestation, crime against nature, and others
COMPARISON OF SEXUAL ASSAULT COMPLAINT PROVISIONS

5.23 ADMISSIONS
ART. 801(D)(2-3)
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement by a person authorized by him to make a statement concerning the subject.
(3) Relational and privity admissions. The statement is offered against a party, and the statement is:
(a) A statement by an agent or employee of the party against whom it is offered, concerning a matter within
the scope of his agency or employment, made during the existence of the relationship;
(b) A statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in
furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established;
(c) In a civil case, a statement by a declarant when the liability, obligation, or duty of the party against whom
it is offered is derivatively based in whole or in part upon a liability, obligation, or duty of the declarant, or
when the claim or right asserted by that party is barred or diminished by a breach of duty by the declarant,
and when the statement would be admissible if offered against the declarant as a party in an action involving
that liability, obligation, or breach of duty;
(d) In a civil case, a statement by a declarant when a right, title, or interest in any property or claim asserted
by the party against whom it is offered requires a determination that a right, title, or interest exists or existed
in the declarant during the time that that party now claims the declarant was the holder of the right, title, or
interest, and when the statement would be admissible if offered against the declarant as a party in an action
involving that right, title, or interest;
(e) A statement by a declarant offered against the party in an action for damages arising from the death of
that declarant; or
(f) A statement by a minor child offered against a party in an action to recover for injury to that child, or
against the person responsible for the child in an action to recover damages for losses caused by the child.

o This exception allows them to be offered for the truth of the matter asserted within them.
o Admissions are statements made by a party to the action being offered against that party by his
opponent
 A party's own statement in either his personal or representative capacity, or a statement
attributable to him because he either adopted it, authorized it, or by virtue of his
relationship to the person making the statement
o Theory lies in the fact that a person should not be able to complain that he cannot cross-examine
himself or that he is not worthy of belief without being under oath
 Holds a party responsible for his own statements
o A party's own statement, when offered against them, is not hearsay and may be offered by his
opponent to prove the truth of the matter asserted within the statement
o Overcoming hearsay objection
 Your honor, it is his own statement
o An admission could be exclude for other reasons
 Relevancy
 Unconstitutionally obtained (5th amendment)
o If the statement is in writing or recorded, it would have to be properly authenticated
o A court might even exclude portions of a statement for being unfairly prejudicial, particularly when
offered against a defendant in a criminal trial.

REQUIREMENTS
o It is a statement by a party to the action or is attributed to him; and
o The statement is being offered against the party by his opponent

OFFERED AGAINST A PARTY

 The plaintiff is offering a statement made by the defendant, or vice versa
 This provision does not apply when a party attempts to offer his own statement
o Inadmissible hearsay

A PARTY'S OWN STATEMENT (OR ONE ATTRIBUTED TO HIM)

 A party's own statement in either his personal or representative capacity, or a statement attributable
to him because he either adopted it, authorized it, or by virtue of his relationship to the person
making the statement such as an employer-employee, agent-principle, co-conspirators, as well as
others

PERSONAL STATEMENT
 In either personal or representative capacity
 May be expressed orally, in writing, or may be tacit
 A tacit admission, once that is by silence or action, must comply with the definition of a statement in
that the declarant must have intended to assert a message by his silence or action to raise a hearsay
issue
ADOPTED ADMISSION
 Manifest a belief in its truth
 A person may
o expressly adopt a statement; or
 Orally or in writing
o Implicitly adopt a statement
 The party's reliance upon the contents of a statement in a related conversation or
writing; or
 By silence under circumstances in which it would be natural to respond
 Factors:
 Statement was made in defendant's presence
 The defendant heard the statement
 The defendant understood the statement
 Of such a nature and under circumstances where a denial,
explanation, or reply would be expected
 And where the defendant is not in legal custody and is at full
liberty to speak
 Defendant failed to deny or explain
 When a person fails to deny an accusation that a reasonable perosn would
have likely denied or explained had the accusation not been true, he will
likely be considered to have adopted the statement by silence provided the
facts suggest that the person actually heard the statement, understood it,
and there were no physical or emotional impediments that might have
prevented him from responding
 A party might implicitly adopt a statement by his reliance upon the
contents of statement in a related conversation or writing
 Ex. A student who sends his transcript to a potential employer has
implicitly adopted the contents of the transcript
 Criminal cases - 5th amendment privilege against self-incrimination
o Right to remain silent
o Under these circumstances a person's silence cannot be used against him as an admission of
guilt

AUTHORIZED ADMISSION
 Made by a person authorized by the party to make a statement concerning the subject
 Representative or vicarious admissions
 Speaking agents authorized to speak on that person or entity's behalf
 Attributed to the party

AGENT/EMPLOYEE IN COURSE/SCOPE OF AGENCY/EMPLOYMENT

 Statement must be made by an employee or agent of the party
 Concerning a matter within the scope of his agency or employment
 During the existence of the relationship; and
 Offered against the principal/employee who is a party to the action
 CO-CONSPIRATORS
 Requirements
o Prima facie case of conspiracy between declarant and party-litigant
o Statement made during the conspiracy
o Statement in furtherance of the conspiracy; and
o Offered against a co-conspirator who is a party to the action
 Excludes statements made after the venture has ended unless such statement might be deemed to
be a part of a continuous transaction forming the criminal act

OTHER PRIVITY ADMISSIONS

 Privity admissions are based on the principle that one who under substantive law stands in another's
shoes for the purposes of a lawsuit should generally be made to take the bad with the good
 Examples
o (3)(c) Statements of a principle debtor offered against his surety, statements of an assignor
offered against the assignee, and statements by an insured offered against the beneficiary
o (3)(d) statements by a predecessor in title offered against his successor
o (3)(e statement by declarant offered against the party in an action for damages arising from
the death of that declarant
 Wrongful death and survival
o (3)(f) statement by a minor child offered against a party in an action to recover for injury to
that child, or against the person responsible for that child in an action to recover damages
for losses caused by the child

CONTENT OF STATEMENT
 Applies to any relevant statement by the opponent, even if it is exculpatory or neutral
 May also include opinions and conclusions
 No requirement for personal knowledge
 5.24 THINGS SAID AND DONE
ART. 801(D)(4)
The statements are events speaking for themselves under the immediate pressure of the occurrence,
through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of
the participants when narrating the events, and which are necessary incidents of the criminal act, or
immediate concomitants of it, or form in conjunction with it one continuous transaction.

o Exempts things said and done during a criminal act

o Only applies to criminal cases
o Statements made by
 Perpetrators
 Get on the floor
 Let's get out of here
 Concomitants of the criminal act
 In a drug transaction
 How much you want
 Victims and other participants
 I don't have any money
 Police officers or other witness after the incident if they form a part of a continuous
transaction of events

REQUIREMENTS
o Applies in criminal cases
o Made by participants of the crime and, in limited circumstances, some victims or witnesses
o Made during the crime, both before and after the crime that forms a continuous transaction with it; and
o Statements are instructive, impulsive and spontaneous words and acts that are necessary incidents of the
criminal act, or immediate concomitants of it

NOT NARRATING THE EVENTS

o Someone who actually hears the statements as they are being made, must testify to what they heard
o Does not include words of the participants when narrating the events where a participant later tells
someone about what was said during a crime after the incident is over
o Only applies if the witness who actually heard the defendant say those words and who has first-hand
knowledge of the statements testified to what was said and done

INCLUDED STATEMENTS
o Those that are instructive, impulsive, and spontaneous words and acts of the participants
o statements that are necessary incidents of the criminal act
o Or immediate concomitants of it
o Before during or after the commission of the crime if the continuous chain of events is evident under the
circumstances

DISTINGUISH FROM RES GESTAE OR INTEGRAL PART EVIDENCE

o This exception is also referred to as resgestae
o Not to be confused with the exception that allows certain other crimes to be admitted into evidence if
they form an integral part of a charged crime
o Integral part refers to other criminal conduct that forms a part of the instant offense for which the
defendant is on trial, this exception refers primarily to the statements made during a criminal act that
form a part of criminal transaction as well as the actions of the participants.
 5E – CONFRONTATION
CLAUSE
5.25 HEARSAY VIS A VIS THE SIXTH AMENDMENT
CONFRONTATION CLAUSE
 5.25 HEARSAY VIS A VIS THE SIXTH
AMENDMENT CONFRONTATION CLAUSE
SIX AMENDMENT OF THE UNITED STATES CONSTITUTION
In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel
for his defense

LA. CONST. ART. I SEC. 16 (1974): RIGHTS TO A FAIR TRIAL

An accused is entitled to confront and cross-examine the witnesses against him to compel the attendance of
witnesses, to present a defense, and to testify in his own behalf.

CURRENT STANDARD FOR ADMISSIBILITY: CRAWFORD V. WASHINGTON

 Court held the requirements are:
o The declarant is currently unavailable; and
o There was a prior opportunity for cross-examination
 Only those statements that are testimonial in nature are subject to confrontation, not every casual
remark to an acquaintance that might be offered against him
 If not testimonial, no right of confrontation
 There are three scenarios in which a statement will not be excluded under 6th amendment from
being offered against a defendant in a criminal trial
o The statement is non-testimonial, even if never cross-examined, and the witness is currently
unavailable;
o The statement is
 Testimonial, and
 Witness is currently available for cross-examination
o The statement is
 Testimonial
 Witness is unavailable; and
 There was a prior opportunity to cross-examination

CRAWFORD EXAMPLES OF TESTIMONIAL STATEMENTS

 Definitions
o Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations
o Ex parte in court testimony or its functional equivalent - that is, material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used
prosecutorially
o Extrajudicial statements…contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confesstions, and
o Statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial
DAVIS V. WASHINGTON FURTHER DEFINES TESTIMONIAL
 Distinguished testimonial v non-testimonial
o Statements are nontestimonial when made in the court of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency
o They are testimonial when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution

CONFRONTATION CLAUSE ANALYSIS UNDER CRAWFORD

 Pursuant to definitions outlined above, a statement is testimonial, and subject to confrontation, if it is:
prior testimony given at a hearing, grand jury, prior trial, affidavit, formal police interrogation deposition,
or other statement that would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial, as well as a statement made in the course of police interrogation when
there is no ongoing emergency, and the primary purpose of which is to establish or prove past events
potentially relevant to later criminal prosecution.
 Even though statement may not be excluded under the Confrontation Clause, to be admitted, it must not
be excluded by any other provision

FORFEITURE BY WRONGDOING
o Forfeits rights under the confrontation clause
o It must be shown that the accused procured the unavailability of the with the specific purpose of
preventing the witness from testifying against him
o If standard is net, a testimonial statement may be offered against an accused without violating
confrontation clause
ILLUSTRATION PG. 509 << SEE FOR ANALYSIS >>
Likely will not be excluded on confrontation grounds

Discussion of 911 Call

The 911 call that Omar made to police will not likely be excluded on confrontation grounds. The Sixth
Amendment Confrontation Clause provides that an accused has a right to confront witnesses against him at
trial. Under Crawford, only those statements that are “testimonial” are subject to confrontation. If the
statement is testimonial, then Crawford requires that the statement be excluded unless the witness is
unavailable to testify, and the defendant had a prior opportunity to cross-examine the declarant on the
statement. Under Davis, a statement may be testimonial if the primary purpose of the police interrogation is
to establish past events potentially relevant to a later criminal prosecution. However, a statement is
nontestimonial when made in the course of police interrogation under circumstances objectively indicating
that the primary purpose is to enable police assistance to meet an ongoing emergency. Here, when Omar
made the 911 call, he was seeking assistance with an ongoing emergency. He was inside of the closet hiding
from a business partner who was outside of the closet attempting to gain entry with a dangerous weapon to
inflict harm on Omar while threatening to kill him. Omar was not recounting past facts but was instead
relating facts to the 911 operator as they unfolded. The interrogation and answers Omar provided were
necessary to enable the police to resolve the emergency in the face of a bona fide physical threat. The
circumstances clearly indicate that the primary purpose of Omar’s statement was to enable the police to
meet an ongoing emergency. Omar was not acting as a witness. He was not giving testimony. Since Omar’s
statement to the 911 operator was not testimonial, it is not subject to the Confrontation Clause, and thus will
not be excluded on confrontation grounds.

Detailed Statement to Police

The circumstances surrounding Omar giving the formal statement to the police are different. It is possible
that a nontestimonial statement may evolve into a testimonial statement once the purpose has been
achieved. While the police arrived at Omar’s business in the face of an ongoing emergency, at the time Omar
sat down to give the formal written statement to the police officer, the threat of the emergency he faced
from Randy had subsided. Randy had left the scene and the police had secured the business. Omar then
proceeded to give the police a detailed statement, at which time he began to recall past facts relevant to a
criminal prosecution relative to Randy’s threats and attempt to break into the closet to attack him. In fact,
the police specifically told Omar that his statement would be used to obtain a warrant for Randy’s arrest. The
circumstances surrounding the giving of Omar’s second statement to the police clearly indicate that the
primary purpose of the interrogation was to establish past facts for later use at trial. Thus, Omar’s statement
to the police was testimonial and as such, Randy has a right of confrontation. Under Crawford, since Omar is
currently unavailable for cross-examination, the statement may only be used if Omar had a prior opportunity
to cross-examine Omar on the statement. Based on the facts, there was no prior opportunity for Randy to
cross-examine Omar, since Omar was killed the very next day after making the statement. Thus, the formal
statement that Omar made to the police should be excluded on confrontation grounds.

Forfeiture by Wrongdoing
It is worth noting here that the doctrine of forfeiture by wrongdoing does not apply to this case. Under the
doctrine, if an accused procures the unavailability of a witness due to his own wrongdoing, then he forfeits
his rights to confront the witness and the statement may be offered against him. However, the doctrine only
applies if the accused procures the unavailability of the witness for the specific purpose of preventing him
from testifying at trial. In this case, while Randy’s wrongdoing is the reason Omar is unavailable for cross-
examination, Randy did not kill him for the specific purpose of preventing him from testifying. Here, Randy
killed Omar because Omar gambled away all of the money from their business, not to prevent Omar from
testifying. Thus, Randy has not forfeited his right to confront Omar."

AFFIDAVITS OF CRIME LAB REPORTS

o Certificates of analysis or lab reports
o Does the accused have the right to confront the forensic analyst who conducts tests such as DNA
analysis, drug analysis, blood alcohol analysis, and the like?

Melendez-Diaz v. Massachusetts 129 S. Ct. 2527

o "Crawford and Certificates of Analysis— Melendez-Diaz provided that, under Crawford, affidavits of
forensic analysis are “testimonial,” and as such an accused has a right to confront the forensic
analyst who conducted the test. Notice-and-demand statutes comply with the confrontation
requirements."

ILLUSTRATION OF CONFRONTATION CLAUSE AND CERTIFICATE OF ANALYSIS

Dez is on trial for possession of cocaine. The prosecution intends to use the certificate of analysis prepared by
the crime lab as evidence that the white powdery substance that was found inside of Dez’s pocket was
determined to be 100% cocaine. At trial, the prosecution offers the lab report into evidence without calling a
witness. Dez objects that offering the lab report violates his Sixth Amendment confrontation rights. Is he
correct? Using the analysis in Melendez-Diaz, explain whether lab reports are or are not subject to
confrontation. How can the State comply with any confrontation requirements?

Dez is correct that offering the crime lab report against him, without calling a witness that he may confront
and cross-examine, violates his Sixth Amendment confrontation "rights because the analyst’s statements
contained in the report are “testimonial “under Crawford/Davis and therefore may only be admitted if the
witness is unavailable and Dez had a prior opportunity to cross-examine the witness/analyst. Otherwise, the
use of the evidence would violate his confrontation rights. While numerous arguments have been made as to
why lab reports should be exempt from the confrontation requirement, in Melendez-Diaz, the United States
Supreme Court has held that lab reports are incontrovertibly a “solemn declaration or affirmation made for
the purpose of establishing or proving some fact,” “made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial.” As such, the
reports are testimonial in nature and subject to the Confrontation Clause of the Sixth Amendment. Like
experts in general, an analyst’s lack of proper training or deficiency in judgment or fraud, as well as
deficiencies in processes or procedures, may be disclosed in cross-examination. Thus, a defendant has a right
to confront the analyst conducting such tests at a trial.

In Melendez-Diaz, the Court held that the prosecution could comply with a defendant’s confrontation rights
through the use of a notice-and-demand statute. Thus, pursuant to La. R.S. 15:501, the state can provide
notice to Dez of its intent to use the lab results at least 45 days prior to trial and require that within 30 days
of receipt of the notice that Dez makes a written demand to have the person making the examination or
analysis appear personally in court for confrontation and cross-examination. Additional time to demand the
witness’s presence may be available if timely requested or if exceptional circumstances exist. If Dez makes a
timely demand to have the analyst testify, the certificate shall not be prima facie proof of the facts thereon,
and the evidence may only be offered against Dez if the witness is present to testify. If Dez fails to make a
timely demand for the witness’s presence, the State may offer the report as evidence against Dez without
violating his constitutional rights.
 6 – CHARACTER, OTHER
CRIMES & CREDIBILITY
6.1 CHARACTER GENERALLY
6.2 PROVING CHARACTER
6.3 CHARACTER OF ACCUSED DEFENDANT PUTS OWN CHARACTER AT
ISSUE
6.4 CHARACTER ESSENTIAL ELEMENT
6.5 HABIT/ROUTINE PRACTICE
6.6 NON-CONFORMITY
6.7 CRIMINAL CONVICTIONS (FOR CREDIBILITY)
6.8 CHARACTER OF VICTIMS
6.8.1 CHARACTER OF THE VICTIM/SELF-DEFENSE (NON DV CASES)
6.8.2 CHARACTER OF VICTIM – DV EXCEPTION
6.9 SEXUAL ASSAULT VICTIM CHARACTER
6.9.1 RAPE SHIELD STATUTE
6.9.2 VICTIM’S ATTIRE IN SEXUAL ASSAULT CASES
6.9.3 PRIOR SEX OFFENSES OF THE ACCUSED IN SEX OFFENSE CASES
6.9.4 PRIOR SEXUAL BEHAVIOR IN SEXUAL TRAFFICKING CASES
6.10 CHARACTER OF WITNESS FOR TRUTHFULNESS/CREDIBILITY
6.11 OTHER ATTACKS ON CREDIBILITY OF WITNESSES –
IMPEACHMENT
6.12 CHAPTER OVERVIEW – HOW THE CONCEPTS RELATE TO EACH
OTHER
 6.1 CHARACTER GENERALLY
ART. 404(A) CHARACTER EVIDENCE GENERALLY
Evidence of a person's character or a trait of his character, such as a moral quality, is not admissible for the
purpose of proving that he acted in conformity therewith on a particular occasion, except:

 Some evidence must be excluded because it may have an undue tendency to suggest decision on an
improper basis because it may adversely affect the jury's attitude toward the defendant wholly apart
from its judgment as to his guilt or innocence of the crime charged.
 When you refer to the kind of person someone is you speak of his character
 Character is defined as generalized descriptions of a person's disposition or disposition in respect to
a general trait
 Character evidence deemed to be highly persuasive with a jury and has tendency to suggest decision
on an improper basis. Thus, has potential to be unfairly unprejudicial.
 Rules have been developed to limit scope

CHARACTER EVIDENCE GENERALLY INADMISSIBLE - THE CONFORMITY RULE

 Not admissible for the purpose of proving that the person acted in conformity with the particular
character trait on a particular occasion.
 Applies in both civil and criminal
 Propensity bar rule
o Not allowed to suggest that a defendant has a propensity to do things
 Ex.
o Evidence that a person is dishonest would not be admissible to prove that the person
committed forgery
o Evidence that a person is violent may offered to prove that he committed a murder

EXAMPLES OF CHARACTER TRAITS

 Negative
o Greedy, disrespectful, angry, flamboyant, arrogant
 Good
o Dependable, honest, ambitious, respectful, easygoing

EXCEPTIONS
 Three exceptions under 404(A)
o Character of the defendant when he puts his own, usually good, character at issue
o Character of the victim; and
o Character of a witness for his truthfulness or untruthfulness
 Under 405
o When character is an essential element of a claim, charge, or defense
o May also be proven by specific instances of conduct
 6.2 PROVING CHARACTER
ART. 405(A)(C) METHODS OF PROVING CHARACTER
A. Reputation. Except as provided in Article 412, 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 general reputation only. On
cross-examination of the character witness, inquiry is allowable into relevant specific instances of conduct.
(includes exceptions in 404)
C. Foundation. Before a person may be permitted to testify to the reputation of another person, a
foundation must be established that the witness is familiar with that reputation.

GENERAL REPUTATION ONLY

 Character may only be proven by testimony as to general reputation in the community, with proper
foundation that establishes that the witness is competent to testify as to the person's character
o Cannot testify to opinion or specific instances of that conduct
 Ex.
o Defendant on trial for forgery can offer a character witness to testify that his general
reputation in the community is for being honest and trustworthy
o May not testify that it is his opinion and cannot testify to specific instances

FOUNDATION
 Must establish that witness is familiar with that person's reputation
 The community in which the witnessed learned of the reputation could be
o Work
o Church
o School
o Etc.
 Line of questioning pg. 554

PERTINENT CHARACTER TRAIT

 The trait must be pertinent or relevant to the case
 Ex.
o Forgery case. Honesty is pertinent. Being punctual is not.

CROSS-EXAMINATION
 Once witness has testified about the character of a person, the witness may then be cross-examined
about relevant specific instances of conduct that go to the heart of the character trait in question
o Specific instances need not be convictions and can include arrests that did not result in
conviction, bad acts that was not arrested for, rumors and gossip currently being discussed
in the community,
 This allows jury to determine weight and credibility to give to that testimony
 Ex. Testified that someone was honest. On cross would be allowed to ask whether that person heard
that the person stole money from last employer.

HAVE YOU HEARD?

 o When cross examining must be in the form of whether that person has heard about each
specific instance of conduct in question
o Ex.
 Have you heard that Mary was fired from her job for stealing?

PRECAUTIONS BEFORE CROSS-EXAMINING CHARACTER WITNESSES ON SPECIFIC INSTANCES

 In order to minimize the prejudice, la sup court established safeguards that should be recognized
regarding the specific instances about which the character witness may be crossed
 Before allowing witness to be questioned about specific instances that may prejudice the jury, the
trial judge should conduct a preliminary inquiry (Johnson hearing) out of the presence of the jury
and the following should be satisfied
o There is no question as to the fact of the subject matter of the rumor
o A reasonable likelihood exists that the subject matter would have been bruited about the
neighborhood or community prior to the alleged commission of the offense on trial
o The specific instance didn't occur at a time too remote from the present offense
o Concerned the specific trait involved in the offense for which the accused is on trial
o Examination conducted in proper form "have you heard"
o If interrogation is allowed, jury should be informed of the exact purpose.

REBUTTAL BY OPPONENT
 Once a party has called character witness, the opponent may offer rebuttal evidence of the person's
character through another character witness
 Proper procedures for original character witness apply
o General reputation
o May be cross examined on specific instances

6.3 CHARACTER OF ACCUSED (DEFENDANT PUTS OWN

CHARACTER AT ISSUE)

ART. 404(A)(1)
Except:
(1) Character of accused. Evidence of a pertinent trait of his character, such as a moral quality, offered by an
accused, or by the prosecution to rebut the character evidence; provided that such evidence shall be
restricted to showing those moral qualities pertinent to the crime with which he is charged, and that
character evidence cannot destroy conclusive evidence of guilt.

 Applies in criminal cases

 When defendant puts his character at issue, it opens the door to evidence of his character being
offered by the prosecution in rebuttal
 Procedure for offering evidence of the character of the accused
o Proven by general reputation in the community
o Must be pertinent character trait
o Foundation must be laid to establish witness is familiar
o The community can be schoolwork ect. Where witness interacted with the person and other
associates enough to have learned
o May be crossed on specific instances of conduct that go to
 Pertinent character trait in issue; and
  Be in the form of have you heard
o Preliminary Johnson hearing; and
o Opponent may call character witness to rebut and must comply with all requirements for
offering character evidence

HOW DEFENDANT PUTS CHARACTER AT ISSUE

 Only defendant can put own character at issue
 Opens door to being cross-examined and rebuttal witnesses
 Defendant puts his character at issue by offering evidence of his character either through another witness
or by his own testimony
 Defendant may inadvertently open the door to his character
o Ex. During defendant's testimony he is asked was he at a specific location where the crime
occurred and he responds "I would never go to a place like that, I'm a law-abiding citizen" then
he puts his character at issue as a law-abiding citizen. Opened the door for prosecution to rebut

6.4 CHARACTER ESSENTIAL ELEMENT

ART. 405(A)(B) METHODS OF PROVING CHARACTER
A. Reputation. Except as provided in Article 412, 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 general reputation only. On cross-examination of
the character witness, inquiry is allowable into relevant specific instances of conduct.
B. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential
element of a charge, claim, or defense, such as in a prosecution for defamation or when there is a defense of
entrapment, proof may also be made of specific instances of his conduct.

 Character is an essential element when the existence or nonexistence of the character trait determines
the rights and liabilities of the parties under substantive law.
 Proof of the defendant's character may be proven by both general reputation in the community as well as
specific instances of conduct

EXAMPLES

CHILD CUSTODY CASES

NEGLIGENTLY HIRING

DEFAMATION
 A claim in which character is an essential element is in a libel case where truth of the statement is an
absolute defense
 In a defamation case, the plaintiff typically seeks to recover for damage to his reputation.
o Specific instances of conduct could be offered

DEFENSE OF ENTRAPMENT
 If defendant raises entrapment defense
o He claims that he would not have committed the crime charged had it not been for the
inducement of the state agent.
o He's stating that he was not predisposed to commit crime - he did not have the propensity to
commit it
o In rebuttal, prosecution must prove that defendant was in fact predisposed to
 o As such, it may be proven by specific instances of conduct, through past criminal history - can
show that defendant was predisposed to commit the crime even without the government
involvement

State v. Taylor 888 So.2d 272

 To admissibility of evidence of other crimes
o Determine if it has some relevance or is an element of the crime charged
o State has met the requirement to prove the def committed other acts by clear and
convincing evidence
o Balancing
o Prieur requirements
 State must provide written notice of its intent to use other acts or crimes evidence,
describe these acts in sufficient detail within a reasonable time before trial, and
specify the exception to the general exclusionary rule for the admissibility of the
evidence

6.5 HABIT/ROUTINE PRACTICE

ART. 406 HABIT; ROUTINE PRACTICE; METHODS OF PROOF
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not
and regardless of the presence of eyewitnesses, 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. The evidence may
consist of testimony in the form of an opinion or evidence of specific instances of conduct sufficient in
number to warrant a finding that the habit existed or that the practice was routine.

 Ex.
o If it is established that a person's habit is to always lock the door, evidence may be offered
to prove that he locked the door on the occasion in question

WHAT IS HABIT/ROUTINE PRACTICE?

 Habits
o Key Point: a semi-automatic reflexive response every time the person is confronted with the
situation
o Ex.
 Every time get in the car, put on seatbelt
 Words include
 Always
 Invariably
 Every time etc.
o A person's habit is not something that is done
 Often
 Occasionally
 Usually
 Sometimes
o The probative value of evidence of habit lies in the fact that the person's response invariably
always occurs when the situation is presented
  Routine practice
o A course of behavior of an organization or group of persons regularly repeated under like
circumstances
o Like habit

HABIT V. CHARACTER
 Character is a generalized description of disposition
o General and broad
o May not be used to infer the person's conduct on a particular occasion based on the kind of
person he is
 Habit is a person's regular response to a repeated specific situation
o Specific and invariable
o May be used to infer the person's behavior on a particular occasion based on what he
habitually does

OFFERED TO PROVE ACTION IN CONFORMITY ON A PARTICULAR OCCASION

NEED NOT HAVE CORROBORATING CIRCUMSTANCE NOR EYEWITNESSES

EVIDENCE NOT CONLCUSIVE, AND MAY BE WEIGHED WITH OR COUNTERBALANCED BY OTHER

AVAILABLE EVIDENCE

HOW HABIT/ROUTINE PRACTICE PROVEN

 To establish
o Testimony in form of an opinion, with proper foundation; or
o Evidence of specific instances of conduct sufficient in number to warrant a finding that the
habit existed or that the practice was routine
 One or more person may testify that they observed and the court must determine whether the
number of instances is sufficient to prove that the conduct is habit/routine practice

PROOF OF HABIT/ROUTINE PRACTICE BY OPINION

 Not authorized to give opinion as to what the person did on the occasion in question, only his
opinion as to whether habit existed
 Foundation must be laid to establish witness is competent to testify under the same foundational
requirements for lay opinions
 Must be able to point to specific perceptions or observations of which he has first-hand knowledge
upon which he based his opinion

6.6 NON-CONFORMITY
ART. 404(B)
B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature
of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that
constitutes an integral part of the act or transaction that is the subject of the present proceeding.

(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time
of the offense charged, evidence of the victim's prior threats against the accused or the accused's state of
mind as to the victim's dangerous character is not admissible; provided that when the accused pleads self-
defense and there is a history of assaultive behavior between the victim and the accused and the accused
lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or
concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the
part of the victim in order to introduce evidence of the dangerous character of the victim, including specific
instances of conduct and domestic violence; and further provided that an expert's opinion as to the effects of
the prior assaultive acts on the accused's state of mind is admissible.

 Excludes evidence of specific instances of conduct from being offered against a person to prove he
acted in conformity therewith
 Specifically refers to other crimes, wrongs, and bad acts
 Potential for unfair prejudice because tendency to lead jury to convict on improper bias

PERMISSIBLE PURPOSES
 Prior crimes, wrongs, or bad acts generally excluded from being offered for conformity purposes but may
be offered to prove other relevant purposes
 Illustrative list
o Motive, opportunity, intent, preparation, plan, knowledge, identity, integral part, and absence of
mistake or accident
 To be admissible, evidence of other crimes must have independent relevance apart from its propensity
purposes
o Ex. Person on trial for murdering man; evidence may be shown that man witnessed person
committing another crime to show motive that for person killing man

ADMISSIBILITY REQUIREMENT
 upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, of the nature of any such evidence it intends to introduce at trial and for what purposes
o Must specify the evidence and the purpose
o Must provide notice whether it's requested or not
 After providing notice of intent, a Prieur Hearing is set to ensure compliance with safeguards
o Notice of intent
o Prerequisite determination
 Evidence serves the purpose for which it is being offered and is not repetitive or
cumulative
 Its admission is not a subterfuge for depicting the accused as a person of bad character
 Introduce clear and convincing evidence that accused committed the act (Sufficient to
support a finding - a reasonable juror could find the existence of the fact)
o Preliminary instruction
 At the time the evidence is admitted, the court, if requested, instructs the jury as to the
limited purposes for which the evidence was received and may be considered; and
o Final instruction
 In its final charge to the jury, the court instructs the jury as to the limited purpose for
which the evidence was received and may be considered, and further instructs the jury
 it may not convict the accused of any crime other than the one charged or a crime
responsive to the once charged

STATED PURPOSE MUST ACTUALLY BE AT ISSUE

 Must also be probative of the named purpose
 Ex. Evidence being offered to prove intent may not be allowed if intent is not required for the crime
 Ex. Defendant charged with burglary. To offer prior burglaries to show identity. The prior crime(s)
must be distinctively similar to the one charged. (time, place, manner)- otherwise not probative

STANDARD OF PROOF OF OTHER CRIME

 No requirement that they be convicted
 Clear and convincing

ADMITTED SUBJECT TO THE ART 403 BALANCING TEST

INTEGRAL PART EVIDENCE

 Evidence of another crime that forms a part of the sequence of events leading to the charged offense
 Evidence so related to and intertwined with the charged offense to such an extent that the state
could not accurately present its case without reference to it
 To determine, the court considers its proximity to the instant offense in time and place and whether
the evidence forms a continuous chain of events leading to the defendant's arrest
o It must be so important that the prosecution could not prove the crime without the
evidence
 Need not given notice to use integral part evidence

SUBJECT TO HARMLESS ERROR RULE

 Erroneously admitted other crimes evidence is admitted subject to the harmless error rule

6.7 CRIMINAL CONVICTIONS (FOR

CREDIBILITY)
 Under these articles, evidence of a criminal conviction may be offered only on the issue of the
witness's credibility, i.e. truthfulness or veracity

CREDIBILITY OF A WITNESS
 Whenever a witness takes the stand, his credibility is always at issue and any evidence that bears
upon his credibility is generally admissible
 This provision applies to convictions only except those that have been the subject of a pardon or an
annulment
 The details surrounding the admissibility of such evidence depends on whether the evidence is being
offered in a civil or criminal trial.
CIVIL
ART. 609. ATTACKING CREDIBILITY BY EVIDENCE OF CONVICTION OF CRIME
IN CIVIL CASES
A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the
details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of
which he was convicted and the date of conviction is admissible if the crime:

(1) Was punishable by death or imprisonment in excess of six months under the law under which he was
convicted, and the court determines that the probative value of admitting this evidence outweighs its
prejudicial effect to a party; or

(2) Involved dishonesty or false statement, regardless of the punishment.

B. Time limit. Evidence of a conviction under this Article is not admissible if a period of more than ten years
has elapsed since the date of the conviction.

C. Effect of pardon or annulment. Evidence of a conviction is not admissible under this Article if the
conviction has been the subject of a pardon, annulment, or other equivalent procedure explicitly based on a
finding of innocence.

D. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under
this Article.

E. Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. When evidence of a conviction is admissible, evidence of the pendency of an appeal is also
admissible.

F. Arrest, indictment, or prosecution. Evidence of the arrest, indictment, or prosecution of a witness is not
admissible for the purpose of attacking his credibility.

 Only the name and date of convictions that have occurred within 10 years and punishable in excess
of six months may be admitted
o Subject to a balancing of interests; or
o Involving dishonesty or false statement

CONVICTIONS PUNISHABLE IN EXCESS OF SIX MONTHS

 Only the name and date are admissible
 Punishable by death or imprisonment in excess of six months
 Includes all felony convictions
 Includes small group of misdemeanors such as
o Stalking
o Tattooing a minor
o Battery of a schoolteacher (by a student)
 These convictions may only be admitted if the court finds balancing doesn't prohibit
CONVICTIONS INVOLVING DISHONESTLY OR FALSE STATEMENT
o Only the name and date are admissible
o Includes crimes such as fraud, perjury, or embezzlement
o Admissible without the need for balancing
EXCLUSIONS
 Does not include
o Arrest
o Indictment
o Prosecution of a witness
o Convictions that have been pardoned or annulled
o Juvenile adjudications
o Convictions more than 10 years
 Convictions on appeal do not preclude its use

SCOPE OF CROSS
 May question regarding name and date
 May not question about any facts of the case or sentence imposed
 May be questioned without any foundation

EXTRINSIC EVIDENCE ADMISSIBLE

 Witness has to be given the opportunity to admit conviction first
o If he fails to admit convictions on cross, extrinsic evidence may be offered to prove that he was in fact
convicted
 Extrinsic evidence is any evidence outside of the witness himself that may prove something
o Document
o Recording
o Another witness
 Governed under art. 613

CRIMINAL
ART. 609.1. ATTACKING CREDIBILITY BY EVIDENCE OF CONVICTION OF CRIME IN CRIMINAL CASES
A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal
convictions, subject to limitations set forth below.

B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his
credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant,
an indictment, a prosecution, or an acquittal.

C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence
imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:

(1) When the witness has denied the conviction or denied recollection thereof;

(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or

(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

D. Effect of pending post-conviction relief procedures. The pendency of an appeal or other post-conviction relief procedures
does not render the conviction inadmissible, but may be introduced as bearing upon the weight to be given the evidence of the
conviction.

E. Effect of pardon or annulment. When a pardon or annulment, based upon a finding of innocence, has been granted,
evidence of that conviction is not admissible to attack the credibility of the witness.
F. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under this Article,
except for use in proceedings brought pursuant to the habitual offender law, R.S. 15:529.1.

 Any type of criminal conviction

 Name, date, and sentenced imposed
 No time limitation

DETAILS OF THE CRIME

 There are three instances in which the details of the offense may become admissible
o When the witness has denied the conviction or denied recollection thereof
o When the witness has testified to exculpatory facts or circumstances surrounding the conviction;
or
o When the probative value outweighs

EXCLUSIONS
 Arrest
 Arrest warrant
 Indictment
 Prosecution
 Acquittal
 Pardon or annulment
 Juvenile adjudications

SCOPE OF CROSS
 May only question the witness regarding the fact of a conviction, the name of the offense, date, and
sentence imposed
 May also inquire about details if witness testifies to exculpatory facts

EXTRINSIC EVIDENCE ADMISSIBLE TO PROVE PRIOR CONVICTION

 If witness fails to admit prior conviction, extrinsic evidence may be offered to prove it after first given the
opportunity to admit and failed to do so

MUNICIPAL ORDINANCES
 Can be used for impeachment purposes

6.8 CHARACTER OF VICTIMS

ART. 404(A)(2)
A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral quality,
is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in conformity therewith
on a particular occasion, except:

(2) Character of victim. (a) Except as provided in Article 412, evidence of a pertinent trait of character, such as a
moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character
evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the
victim at the time of the offense charged, evidence of his dangerous character is not admissible; provided further
that when the accused pleads self-defense and there is a history of assaultive behavior between the victim and the
accused and the accused lived in a familial or intimate relationship such as, but not limited to, the husband-wife,
parent-child, or concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt
act on the part of the victim in order to introduce evidence of the dangerous character of the victim, including
specific instances of conduct and domestic violence; and further provided that an expert's opinion as to the effects
of the prior assaultive acts on the accused's state of mind is admissible;

ART. 404(B)(2)
(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time
of the offense charged, evidence of the victim's prior threats against the accused or the accused's state of
mind as to the victim's dangerous character is not admissible; provided that when the accused pleads self-
defense and there is a history of assaultive behavior between the victim and the accused and the accused
lived in a familial or intimate relationship such as, but not limited to, the husband-wife, parent-child, or
concubinage relationship, it shall not be necessary to first show a hostile demonstration or overt act on the
part of the victim in order to introduce evidence of the dangerous character of the victim, including specific
instances of conduct and domestic violence; and further provided that an expert's opinion as to the effects of
the prior assaultive acts on the accused's state of mind is admissible.

 An accused may offer evidence of any pertinent trait of character of the victim of the crime, except
the character trait of being dangerous, to prove that the victim acted in conformity with the
character trait at the time of the incident in question
 An accused may only offer evidence of dangerous character of the victim if he can first show
evidence of a hostile demonstration or an over act on the part of the victim at the time of the
offense charged
 The accused may also offer evidence of the victim's prior threats against him and evidence showing
his state of mind as to the victim's dangerous character
 In domestic violence situations
o the accused need not first show evidence of a hostile demonstration or overt act on the part
of the victim to introduce dangerous character of victim if
 The accused pleads self defense
 There is history of assaultive behavior between the victim and the accused; and
 The accused living in a familial or intimate relationship
o May also offer expert's opinion as to the effects of the prior assaultive acts on the accused's
state of mind
 If defendant offers character evidence, prosecution can offer evidence to rebut
 In a homicide case, accused offer that victim was first aggressor, prosecution may offer evidence of
peacefulness of victim to rebut
 In addition to evidence of general reputation, specific instances of conduct may be used in some
situations

Types of Admissible Evidence of Victims character

GENERAL REPUTATION
o Evidence of a pertinent trait of character of the victim of a crime (not dangerousness)
offered by an accused
o Evidence of a pertinent character trait of the victim (not dangerousness) offered by the
prosecution to rebut character evidence offered by the accused
o Evidence of dangerous character of the victim offered by the accused after offering
appreciable evidence of a hostile demonstration or overt act by the victim at the time of the
charged offense (non-domestic violence cases)
 o Evidence of dangerous character of the victim (including specific instances and domestic
violence) offered by the accused without the need for an overt act at time of offense when
 Defendant claims self-defense
 History of assaultive behavior; and
 Familial or intimate relationship
o Evidence of peacefulness of the victim offered by the prosecution in homicide to rebut
defendant's claim that the victim was the first aggressor
SPECIFIC INSTANCES OF CONDUCT
o Overt act/hostile demonstration
 When accused has offered evidence of an overt act or hostile demonstration (non
dv), in addition to character for dangerousness, he may also introduce evidence of
the following specific instances
 Evidence of the victim's prior threats against the accused
 Evidence of the accused's state of mind regarding the dangerousness of the
victim, which would include threats, reputation, and other specific acts
against the accused or others upon which the state of mind is based
o Domestic violence exception
 When 1) the accused claims self-defense; 2) history of assaultive behavior; and 3)
familial or intimate relation, in addition to dangerous character, the accused may
introduce evidence of the following specific instances
 Evidence of specific instances of conduct
 Domestic violence may be offered
 Evidence of victim's prior threats against the accused
 Evidence of the accused's state of mind regarding the dangerousness of
victim, which would include threats, reputation, and other specific acts
against the accused or others upon which the state of mind is based

6.8.1 CHARACTER OF THE VICTIM/SELF-DEFENSE (NON-DOMESTIC

VIOLENCE CASES)

OVERT ACT/HOSTILE DEMONSTRATION AT THE TIME OF OFFENSE

 In order to introduce evidence of the dangerous character, threats, specific instances of conduct of
the victim, and evidence of the accused's state of mine, you must first offer appreciable evidence of
an overt act or hostile demonstration by the victim at the time of the commission of the offense
 An overt act is any act of the victim that manifests to the mind of a reasonable person a present
intention on his part to kill or do great bodily harm
o Ex. Victim reached for a gun, knife, etc.
 Need not prove the act, only need to offer evidence into the record relevantly tending to establish
the act or demonstration
 Typically require corroborating circumstances or witnesses
 The court must permit the accused to present a defense and allow the jury to make credibility
determinations

PURPOSES FOR WHICH EVIDENCE MAY BE OFFERED

 The evidence of dangerous character of the victim, threats, and violent acts are relevant to a plea of
self-defense for two purposes
o To help determine who was the first aggressor; and
o To show the accused state of mind, i.e. whether the accused acted reasonably
TO HELP DETERMINE WHO WAS THE FIRST AGGRESSOR
 Whether or not the accused knew about the threats
 So the accused doesn't have to know about the threat

STATE OF MIND OF THE ACCUSED

 An issue of whether the accused was reasonable in his belief that the force used was necessary
to protect himself or to show accused's reasonable apprehension of danger justifying his
conduct
 He must be aware

 Under dv exception, may also offer expert testimony as to the effects of the prior assaultive acts on
the accused state of mind
6.8.2 CHARACTER OF THE VICTIM - DOMESTIC VIOLENCE
EXCEPTION
FAMILIAL OR INTIMATE RELATIONSHIP
 Includes but not limited
o Husband-wife
o Parent child
o Concubinage
 Must showthe critical issues of the serious and duration of the relationship
o An intermittent or short-term relationship with the deceased does not qualify
o Close emotional connection arising out of living in a domestic situation can give rise to
 May continue to exist for some time even after the individuals have separated and no longer live in
the same household
HISTORY OF ASSAULTIVE BEHAVIOR
 May be proven by the defendant, the victim, friends, relatives, or neighbors of the accuse who are
familiar with the relationship between the victim and the defendant
 Or anything documented

SELF-DEFENSE

EXPERT OPINION REGARDING EFFECTS

 May testify that the battered wife type defendant was in fear of losing life or suffering gbh due to
history of asslt behavior

SPECIFIC INSTANCES AND DOMESTIC VIOLENCE ADMISSIBLE

6.9 SEXUAL ASSAULT VICTIM CHARACTER

6.9.1 RAPE SHIELD STATUTE
ART. 412(A)(1),(2) VICTIM'S PAST SEXUAL BEHAVIOR IN SEXUAL ASSAULT CASES;
TRAFFICKING OFFENSES
A.(1) Opinion and reputation evidence; sexual assault cases. When an accused is charged with a crime
involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the
victim is not admissible.

(2) Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive
behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:

(a) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether
or not the accused was the source of semen or injury; provided that such evidence is limited to a period not
to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed
at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or

(b) Evidence of past sexual behavior with the accused offered by the accused upon the issue of
whether or not the victim consented to the sexually assaultive behavior.

 Rape shield statute provides that the following evidence is inadmissible

o Opinion evidence
o Reputation evidence; and
o Specific instances of conduct regarding the past sexual behavior of the victim
 Only applies to criminal cases
 Civil cases are governed by 404 and 405

EXCEPTIONS
 Evidence of pass sexual behavior with persons other than the accused that took place within 72
hours prior to the time of the incident, on the other issue of whether or not the accused was the
source of semen or injury; and
  Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether
or not the victim consented to the sexually assaultive behavior
 The evidence may only be admitted following a pretrial hearing in which the court determines that
the evidence which the accused seeks to offer is
o Relevant
o Probative value outweighs

CONSTITUTIONAL IMPLICATIONS OF THE RAPE SHIELD STATUTE

 In some instances, a defendant will be permitted to introduce evidence of a sexual assault victim's
prior sexual conduct that might otherwise be excluded under this provision, if necessary to protect
his constitutional right to present a defense

SEXUAL ASSAULTIVE BEHAVIOR

 Applicable in all cases in which the accused is charged with crimes involving sexually assaultive
behavior
 Broad range of conduct including
o Rape, sexual battery, carnal knowledge of a juvenile, crimes involving juveniles (indecent
behavior, porn, etc.), crimes against nature

PRIOR SEXUAL ASSAULT TO ATTACK CREDIBILITY

 Does not exclude evidence to show bias, interest, or corruption
o Ex. Evidence that father was accused of molesting victim after he found out about
relationship with another man would be admissible to show the motive to lie
o Witness currently in relationship with victim would be relevant to show the witness bias
 Does not preclude evidence regarding prior false allegations concerning sexual behavior offered for
impeachment purposes
o Also governed under the provisions relative to impeachment of witnesses
 In order to offer such evidence, the accused must present sufficient evidence such that the
reasonable jurors could find, based upon the evidence presented by the defendant, that the victim
had made prior false accusations

PROCEDURES FOR OFFERING EVIDENCE UNDER EXCEPTIONS

ART. 412(C)(D)(E)(F) VICTIM'S PAST SEXUAL BEHAVIOR IN SEXUAL ASSAULT CASES;

TRAFFICKING OFFENSES
C. Motion. (1) Before the person, accused of committing a crime that involves sexually assaultive behavior,
human trafficking, or trafficking of children for sexual purposes, may offer under Subparagraph (A)(2) or (B)
(2) of this Article evidence of specific instances of the victim's past sexual behavior, the accused shall make a
written motion in camera to offer such evidence. The motion shall be accompanied by a written statement of
evidence setting forth the names and addresses of persons to be called as witnesses.

(2) The motion and statement of evidence shall be served on the state which shall make a reasonable
effort to notify the victim prior to the hearing.
D. Time for a motion. The motion shall be made within the time for filing pre-trial motions specified in Code
of Criminal Procedure Article 521, except that the court shall allow the motion to be made at a later date, if
the court determines that:

(1) The evidence is of past sexual behavior with the accused, and the accused establishes that the
motion was not timely made because of an impossibility arising through no fault of his own; or

(2) The evidence is of past sexual behavior with someone other than the accused, and the accused
establishes that the evidence or the issue to which it relates is newly discovered and could not have been
obtained earlier through the exercise of due diligence.

E. Hearing. (1) If the court determines that the statement of evidence contains evidence described in
Subparagraph (A)(2) or (B)(2), the court shall order a hearing which shall be closed to determine if such
evidence is admissible. At such hearing the parties may call witnesses.

(2) The victim, if present, has the right to attend the hearing and may be accompanied by counsel.

(3) If the court determines on the basis of the hearing described in Subparagraph (E)(1) that the
evidence which the accused seeks to offer is relevant and that the probative value of such evidence
outweighs the danger of unfair prejudice, such evidence may be admissible in the trial to the extent an order
made by the court specifies evidence which may be offered and areas with respect to which the victim may
be examined or cross-examined. Introduction of such evidence shall be limited to that specified in the order.

(4) Any motion made under Subparagraph C and any statement of evidence, brief, record of a hearing,
or like material made or used in connection with the motion shall be kept in a separate, sealed package as
part of the record in the case. Nothing in this Article shall preclude the use of the testimony at such hearing in
a subsequent prosecution for perjury or false swearing.

F. Past sexual behavior defined. For purposes of this Article, the term "past sexual behavior" means sexual
behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is
alleged.

G. The rules of admissibility of evidence provided by this Article shall also apply to civil actions brought by the
victim which are alleged to arise from sexually assaultive behavior, human trafficking, or trafficking of
children for sexual purposes by the defendant, whether or not convicted of such crimes.

NOTICE/HEARING
 The accused must make a written motion on camera to offer the evidence
o Must contain a statement of the evidence that he intends to offer along with the names and
addresses of the witnesses he intends to call
o Must be served on the State, who must make a reasonable effort to notify the victim
 After examining the motion, if the court is satisfied that the motion sets forth evidence contained in
an exception to the article, the matter is set for a hearing
 After a closed hearing, the court will determine the admissibility
o Relevance
o Probative value
 Evidence of prior false allegations are not subject to the notice and hearing requirement
6.9.2 VICTIM'S ATTIRE IN SEXUAL ASSAULT CASES
ART. 412.1 VICTIM'S ATTIRE IN SEXUAL ASSAULT CASES
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that
constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, the
manner and style of the victim's attire shall not be admissible as evidence that the victim encouraged or
consented to the offense; however, items of clothing or parts thereof may be introduced in order to establish
the presence or absence of the elements of the offense and the proof of its occurrence.

 Specifically applies to charges mentioned in the article

 There is an exception

6.9.3 PRIOR SEX OFFENSES OF THE ACCUSED IN SEX

OFFENSE CASES
412.2 EVIDENCE OF SIMILAR CRIMES, WRONGS, OR ACTS IN SEX OFFENSE CASES (OF
THE ACCUSED)
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that
constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense,
evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior
or acts which
indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any
matter to which it is relevant subject to the balancing test provided in Article 403.

B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution
shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such
evidence it intends to introduce at trial for such purposes.

C. This Article shall not be construed to limit the admission or consideration of evidence under any other
rule.

 Must be relevant and subject to 403 balancing

 Applies in two situations
o When the accused is charged with a crime involving sexually assaultive behavior; or
o When the accused is charged with a sex offense involving a victim under 17 at the time of
the offense

ADMISSIBLE PRIOR OFFENSES

 Acts need not be a sex crime to be considered toward proving lustful disposition toward a child
o Could be evidence that the accused trespassed on school property to gain acsess to children,
letters written to children, photos
 May have occurred before or after
 The amount of time that has been past is to be considered by the court
 Prior offense must be proven by clear and convincing evidence
NOTICE
 Upon request of the accused, prosecution must give notice of intent to use crime but no prieur
hearing is required
 Reversible error for court to deny a limiting jury instruction

6.9.4 PRIOR SEXUAL BEHAVIOR IN SEXUAL TRAFFICKING

CASES
ART. 412(B) VICTIM'S PAST SEXUAL BEHAVIOR IN SEXUAL ASSAULT CASES;
TRAFFICKING OFFENSES
B.(1) Opinion and reputation evidence; trafficking. When an accused is charged with a crime involving human
trafficking or trafficking of children for sexual purposes, reputation or opinion evidence of the past sexual
behavior of the victim is not admissible.

(2) Evidence of specific instances of the victim's past sexual behavior is not admissible unless the evidence is
offered by the prosecution in a criminal case to prove a pattern of trafficking activity by the defendant.

412.3 STATEMENTS MADE BY VICTIMS OF TRAFFICKING DURING

INVESTIGATIONS
If a victim of human trafficking or trafficking of children for sexual purposes is also a defendant in any case
arising from unlawful acts committed as part of the same trafficking activity, any inculpatory statement made
by the victim as a result of questioning by any person then known by the victim to be a law enforcement
officer is inadmissible against the victim, except pursuant to Article 801 of this Code or in any prosecution of
the victim for perjury, at a trial of the victim for the unlawful acts committed by the victim as part of the
same trafficking activity if all of the following conditions exist:

(1) The victim cooperates with the investigation and prosecution, including the giving of a use-immunity
statement as directed by the prosecuting attorney.

(2) The victim testifies truthfully at any hearing or trial related to the trafficking activity, or agrees, either in
writing or on the record, to testify truthfully at any hearing or trial related to the trafficking activity in any
prosecution of any other person charged with an offense arising from the same trafficking activity, regardless
of whether the testimony is unnecessary due to entry of a plea by the other person.

(3) The victim has agreed in writing to receive services or participate in a program that provides services to
victims of human trafficking or trafficking of children for sexual purposes, if such services are available.

EXCEPTION
 May be admissible if offered by the prosecution in ca criminal case to prove a pattern of trafficking
activity by the defendant

PROCEDURES FOR OFFERING EVIDENCE

 Written motion on camera
 o Must contain statement of evidence proponent inteds to offer along with the names and
addresses of the witnesses he intends to call
o Must be served on opposing party
o Set matter for hearing
o Determine the admissibility in closed hearing (relevant + probative value)
 Along with probative value, court may also consider the possibility that it may
unduly invade the victim's privacy

STATEMENTS MADE BY VICTIMS OF TRAFFICKING DURING INVESTIGATIONS INADMISSIBLE IN

VICTIM'S TRIAL
 Statements of victims of sex trafficking to law enforcement are inadmissible in victim's trial arising
out of same trafficking activity if
o Victim cooperates
o Agrees to testify truthfully
o Victim agrees to receive services for victims of sexual trafficking

412 RULES ALSO NOW APPLY TO CIVIL ACTIONS.

6.10 CHARACTER OF WITNESS FOR

TRUTHFULNESS/CREDIBILITY
ART. 404(A)(3)CHARACTER EVIDENCE GENERALLY NOT ADMISSIBLE IN CIVIL
OR CRIMINAL TRIAL TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMINAL
ACTS
A. Character evidence generally. Evidence of a person's character or a trait of his character, such as a moral
quality, is not admissible in a civil or criminal proceeding for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:

(3) Character of witness. Evidence of the character of a witness, as provided in Articles 607, 608, and 609.

ART. 608. ATTACKING OR SUPPORTING CREDIBILITY BY CHARACTER

EVIDENCE
A. Reputation evidence of character. The credibility of a witness may be attacked or supported by evidence
in the form of general reputation only, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness.

(2) A foundation must first be established that the character witness is familiar with the reputation of the
witness whose credibility is in issue. The character witness shall not express his personal opinion as to the
character of the witness whose credibility is in issue.
(3) Inquiry into specific acts on direct examination while qualifying the character witness or otherwise is
prohibited.

B. Particular acts, vices, or courses of conduct. Particular acts, vices, or courses of conduct of a witness may
not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for
truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally
required.

C. Cross-examination of character witnesses. A witness who has testified to the character for truthfulness or
untruthfulness of another witness may be cross-examined as to whether he has heard about particular acts
of that witness bearing upon his credibility.

 This section deals with a witness who is called to testify to the character of another witness on the
issue of that witness's credibility i.e. his truthfulness or veracity
 Principal witness
o The initial witness who testified in a case (fact witness)
 Character witness
o The witness testifying to the principal witness's character

CHARACTER OF WITNESS FOR TRUTHFULNESS ADMISSIBLE

 Whenever a witness takes the stand, his credibility is always at issue
 Trier of fact must make credibility determinations
 When a witness takes the stand, evidence of his character for truthfulness (pertinent character trait)
is admissible and relevant
 Must be proven by the same procedures in 6.2 (see above or pg.689)

GENERAL REPUTATION FOR TRUTHFULNESS

 It must be in the form of the witness's general reputation in the community for the pertinent character trait
(truthfulness or untruthfulness)
 Cannot be in the form of opinion evidence
 On direct, may not inquire into specific instances of conduct

SPECIFIC INSTANCES CANNOT BE INQUIRED INTO

 608(b) precludes the use of specific instances of conduct for the purpose of attacking a witness's character for
truthfulness, with the exception of 609 and 609.1
 May only be proven by general reputation

SPECIFIC INSTANCES OF CONDUCT (CBA)

 May not be inquired into in laying foundation for character witness
 May not be asked of witness to attack character except under 609 609.1

SPECIFIC INSTANCES CANNOT BE PROVEN BY EXTRINSIC EVIDENCE

 Extrinsic evidence is evidence other than what the witness has testified to
o Another witness, physical evidence, or document offered to prove what the witness has refused to testify to
 Not admissible to prove specific acts or vices of a witness on the issue of his credibility

CREDIBILITY CANNOT BE SUPPORTED UNTIL IT HAS BEEN ATTACKED

 Credibility cannot be attacked until after the witness has been sworn and may not be supported unless it has been
attacked (by defense)
  A witness can be called anytime after the witness is sworn in to testify to untruthfulness
 Truthfulness cannot be supported until after it has been attacked

SAME PROCEDURES AS FOR ALL CHARACTER WITNESSES

 With the exception that the witness's credibility must first be attacked prior to offering a character witness for
truthfulness (not untruthfulness)

6.11 OTHER ATTACKS ON CREDIBILITY OF WITNESSES - IMPEACHMENT

ART. 607 ATTACKING AND SUPPORTING CREDIBILITY GENERALLY
A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.

B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been
sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any
witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.

C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness,
may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his
testimony.

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:

(1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of
the witness.

(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is
admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the
evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the
issues, or unfair prejudice.

ART. 613 FOUNDATION FOR EXTRINSIC ATTACK ON CREDIBILITY

Except as the interests of justice otherwise require, extrinsic evidence of bias, interest, or corruption, prior
inconsistent statements, conviction of crime, or defects of capacity is admissible after the proponent has first
fairly directed the witness' attention to the statement, act, or matter alleged, and the witness has been given
the opportunity to admit the fact and has failed distinctly to do so.

 An attack on a witness's credibility is referred to as impeachment

o The introduction of evidence designed to call into question the truthfulness or accuracy of a
witness's testimony
 Forms of impeachment
o Through criminal convictions (609 & 609.1)
o Through evidence regarding witness's character for truthfulness/untruthfulness (608)
o Evidence that shows
 Bias
 Shows that the witness might have a reason to slant or favor one side or
the other
 Interest
 Corruption
 prior inconsistent statements
 defects of capacity
 Something that might affect ability to perceive or recollect
  and witness's relationship to the parties.
 Generally, a witness's credibility may be attacked through the introduction of various forms of
evidence having a reasonable tendency to disprove the truthfulness or accuracy of the witness's
testimony

CERTAIN SPECIFIC ACTS ARE ADMISSIBLE

 Specific instances of conduct (bad acts, vices, courses of conduct) may not be inquired into to prove
a witness's character for truthfulness, specific instances may be inquired into to show other things,
such as bias, interest, corruption, prior inconsistent statements, defects of capacity, or witness's
relationship to the parties.

WHO MAY ATTACK CREDIBILITY

 Any party

WHEN MAY IT BE ATTACKED

 Not until after a witness has been sworn, and may not be supported until after it has been attacked

INTRINSIC AND EXTRINSIC ATTACK ON CREDIBILITY

INTRINSIC ATTACK
o Impeaching a witness by examining the witness himself
o To attack the credibility of a witness, a party may examine him concerning any matter having
a reasonable tendency to disprove the truthfulness or accuracy of his testimony

EXTRINSIC ATTACK
o Offering evidence that impeaches a witness outside of his own testimony

FOUNDATION FOR EXTRINSIC ATTACK ON CREDIBILITY

  This type of evidence is admissible after the proponent has first fairly directed the witness's attention
to the statement, act, or matter alleged, and the witness has been given the opportunity to admit
the fact and has failed to do so
 If they admit, evidence may not be offered.

IMPEACHMENT WITH PRIOR INCONSISTENT

STATEMENTS
 May be oral written sworn or unsworn
 Not being offered to prove the truth of the matter asserted but only to show that testifying
differently and should not be believed.
 Counsel must get a commitment from the witness to ensure that his current testimony is
inconsistent with prior statement
o If he says he is not sure or does not remember ect. It is not a commitment and cannot be
impeached
o Must be affirmative

KEY POINTS
 Prior statement offered for impeachment purposes only, not substantive value
 Counsel must first direct the witness's attention to the prior statement and the witness must fail to
admit the fact. If the witness admits prior statement and that it was different, then there is no
impeachment.
 The witness's current statement must be inconsistent with the prior statement. If witness claims he
doesn't remember, he should be refreshed, not impeached.
 Counsel may read the prior statement aloud or may have witness read the prior statement aloud.
 Counsel should re-ask the question, and if witness now changes testimony, counsel may argue the
substance of the witness testimony.

6.12 CHAPTER OVERVIEW - HOW THE CONCEPTS RELATE TO

EACH OTHER
ORDER OF TRIAL
 Prosecution has the burden of proving the crime or cause of action
  Prosecution case in chief
o To meet burden of proof
o Calls witnesses and presents physical evidence
o Defense cross prosecution witness
o If defense brings out defendant character on cross, prosecution can
o After they have called all witness and presented all evidence, they rest
o Must have presented sufficient evidence to support a jury finding in their favor (prima facie
case)
 Defense case in chief
o Present evidence and call witnesses to contradict the state
o Prove affirmative ddefenses
 Prosecution rebuttal
o Character witness to rebut evidence brought out by defense

HOW EVIDENCE IS USED AT TRIAL

PROSECUTION CASE IN CHIEF
 Limited to offering character evidence in rebuttal or in response to character evidence offered by the
defendant
 General reputation in the community
o Character of the accused
o Character of the victim
o Character of witness (truthfulness/untruthfulness)
o Character as an essential element (that may also include specific instances)
o Evidence of the defendant's character cannot be offered in case in chief
o Evidence of the victim's character cannot be asked in prosecution case in chief
o Can attack own witness credibility but cannot support it until it has been attacked by the
defense
o Can present this type of evidence in case in chief if character is an essential element of the
crime, charge or defense.
 Specific instances of conduct in case in chief
o Character essential element
o Non-conformity evidence
o Integral part evidence
o Past sexual trafficking of v to prove pattern of trafficking of d
o Other crimes of sexually assaultive behavior in sex assault case
o Crimes showing lustful disposition towards children in cases with victim under 17
o Credibility (609.1 and 608)

DEFENDANT'S CASE IN CHIEF

 May not prove elements of the crime but may offer evidence to refute such evidence offered by the
prosecution
  General reputation in the community - may offer evidence of
o Character of accused
o Character of the victim
o Character of witness
 Specific instances of conduct in limited situations
o Character of the victim
 Overt act or hostile demonstration at the time of the offense charged
 Dv exception
 Opens the door to prosecution offering evidence in rebuttal
o Past sexual conduct
 Two exceptions
o Criminal convictions for credibility
o Specific acts to show bias, interest, motive

REBUTTAL BY PROSECUTION
 Depending on what is offered in the defense's case, the prosecution may be allowed to reopen its
case to rebut evidence offered by the defense
 May call character witnesses to rebut character witnesses offered by the defense that testified to the
character of the defendant, witness, or victim of the crime
 Any character witness called will be subject to cross by the defense

CROSS-EXAMINATION
 During cross, the credibility of all witnesses are at issue
 Subject to cross regarding prior convictions (criminal trial) and specific instances of conduct that
would have a bearing on credibility and that could contradict the character witness to which they
have testified

ARGUE STATE PURPOSE ONLY

 Evidence should only ever be argued for the purpose for which it is admissible
 7 – EXPERT WITNESSES
7.1 EXPERT WITNESSES GENERALLY
7.2 QUALIFICATIONS OF EXPERTS
7.3 SCOPE OF EXPERT TESTIMONY
7.4 BASIS OF EXPERT TESTIMONY
7.5 RELIABILITY OF PRINCIPLES AND METHODOLOGY –
(EXCLUDING “JUNK SCIENCE”)
 7.1 EXPERT WITNESSES GENERALLY
ART. 702 TESTIMONY BY EXPERTS
A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise if:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the case.

 All witnesses testify as either an expert witness or a lay witness

o If a witness is not qualified as an expert to testify in a particular field, he is testifying as a lay
witness, even if he could have been qualified as an expert in a particular field
 Lay witness
o May only testify to opinions or inferences that are rationally based on his personal perceptions
 Expert witness
o In a particular field may be allowed to express more in-depth opinions and provide other
information that can help the jury understand and resolve complex issues that require scientific,
technical, or other specialized knowledge
o They may also answer hypothetical questions posed to him by either counsel
o May be asked leading questions on direct
o Oftentimes may be exempt from the rule of sequestration if his presence is needed in the
courtroom to assist counsel in the presentation of his case
o Need not be based on first-hand knowledge of underlying facts
 May base opinions or inferences on facts or data made known to him at or before the
hearing and in some instances on inadmissible facts and data

REQUIREMENTS
 The witness is qualified by knowledge, skill, experience, training, or education, or any combination
thereof
 The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue
 The expert's testimony is based on sufficient facts or data
 The testimony is the product of reliable principles and methods; and
 The expert has reliably applied the principles and methods to the facts of the case
 7.2 QUALIFICATIONS OF EXPERTS
WITNESS QUALIFICATIONS/BASIS OF EXPERTISE
 A witness may be qualified as an expert in a particular field based on education, training, practical
application, experience, or any combination thereof, that forms the basis of his expertise
 Formal education or a college degree is not necessary, provided the witness has sufficient
experience in the field
o Ex. Someone who has been changing tires his entire life would have specialized knowledge
 The trial court has broad discretion in determining experts
 When qualifying the witness, counsel should question the witness about any information which the
witness bases his experience
 The test of the competency of an expert witness is his knowledge of the subject about which he is
called upon to express an opinion - however it may have been acquired.
o All relevant information should be presented to the court to demonstrate this point.

QUALIFYING A WITNESS AS EXPERT/PROCEDURES

 The expert witness must be qualified as an expert prior to testifying as an expert
 There is not a law that specifically requires any formal procedure or require that a judge formally
declare that a witness has been accepted as an expert.
o A witness is implicitly accepted as an expert witness when the judge allows the witness to
testify as an expert after the attorney elicits testimony regarding the witness's qualifications.
o A witness is expressly accepted when a judge states it.
 Takes place during trial immediately prior to the witness beginning to testify to the substantive
issues in the case
 In the presence of the jury
 The usual procedures followed are
o Question witness on qualifications
 Counsel should seek to elicit all relvant information
o Tender witness as expert
o Cross on qualifications
 Voir dire of the the expert
 Limited to the witness qualifications; no substantive issues
 Often times during voir dire, experts are questioned about biases
 Credibility issues; don't go to the issue of whether the witness should be
allowed to give expert testimony
 Objection/argument
 Can object and make argument
 Can stipulate
 Strategically, the party offering may want to fully lay out qualifications in
the presence of the jury > reject stipulation
 Judge accepts as expert
 If judge does not, the proponent should object and proffer the substance to
preserve for appeal
 7.3 SCOPE OF EXPERT TESTIMONY
ART. 704 OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it
embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness
shall not express an opinion as to the guilt or innocence of the accused.

 May testify in the form of his opinions in his area of expertise

 May not give expert opinions in areas outside of or beyond the scope of area in which he has been
qualified but can give testimony as a lay witness
 May give relevant background information that may be helpful to the jury in understanding the
issues, his testimony, and ultimately his opinions
 May be asked hypothetical questions
o "given these set of facts, that's what my opinion would be"
 May testify to mental state of defendant on issue of insanity or competency to proceed.
o Sanity commission to inquire into mental condition (pleading insanity or mental
incompetency to proceed)

EXCLUDED TESTIMONY/ULTIMATE ISSUES

 Nonhelpful testimony
 The law prefers more concrete testimony rather than less concrete
o Ex. More concrete to testify that a defendant was not capable of understanding right from
wrong than testifying that he was insane which is more abstract. Specific words or actions
that demonstrate are even more concrete. The more concrete the more helpful it will be to
the jury in coming to its own conclusions.
 Evidence may be excluded if it probative value is outweighed
 Should not express an opinion as to the guilt or innocence

CREDIBILITY OF WITNESSES
 Cannot give expert testimony regarding the credibility of another witness (truthfulness)

HELPFULNESS REQUIREMENT
 Must help the trier of fact to understand the evidence or determine a fact on an issue
 If it is not helpful, it is inadmissible.
 Among the factors to consider in determining the helpfulness of the evidence is whether it embraces
an ultimate issue, which rather than assisting the jury, has been said to "invade the province of the
jury" (makes determination for them).
 Also unhelpful when the fact finder could reasonably draw the same inferences based on his own
knowledge and experience without the aid of an expert

7.4 BASIS OF EXPERT OPINION

ART. 703 BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence.
ART. 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION;
FOUNDATION
A. Civil cases. In a civil case, the expert may testify in terms of opinion or inference and give his reasons
therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The
expert may in any event be required to disclose the underlying facts or data on cross-examination.

B. Criminal cases. In a criminal case, every expert witness must state the facts upon which his opinion is
based, provided, however, that with respect to evidence which would otherwise be inadmissible such basis
shall only be elicited on cross-examination.

 Experts are usually provided with factual accounts about the case, witness statements, depositions,
forensic tests, photographs, police reports, medical reports, and a full range of other information
that might assist him developing his own opinions
 May also base opinions on information made known to him at the hearing itself.
 Experts may base his opinion on inadmissible facts or data if it's the type of information reasonably
relied upon by experts in the field.

INADMISSIBLE FACTS AND DATA

 Ex. Accident reconstructionist relying on eyewitness accounts that would be inadmissible hearsay
 Rule does not automatically permit the expert to testify to the inadmissible information upon which
he based his opinion
o It merely allows the expert to consider
 The proponent must prove the underlying facts to support the expert's opinion by other reliable
evidence
 An opponent may always attack the basis of expert's opinion claiming the facts are not as the ones
upon which the expert relied.
o Goes only to credibility, not to admissibility
 An opposing party may attack the factual basis of an expert witness's opinion through cross and by
offering contradicting information into evidence.
o It is only when the expert opinion is so fundamentally unsupported by the proven facts that
it can offer no assistance to the jury, that testimony should not be admitted.

DISCLOSURE OF UNDERLYING FACTS

 Civil
o May testify without first disclosing the facts upon which his opinion is based, unless the
court requires otherwise
o May be required to disclose on cross
 Criminal
o Required to state the facts upon which his opinion is based.
o However, not with any inadmissible facts or data upon which the witness may rely
 Proponent cannot disclose
 Only the opposing party may elicit the information on cross

ART. 403 BALANCING

 Expert testimony is subject to the balancing test
 Court considers its probative value toward its helpfulness in assisting the jury against the prejudicial
effect
o Embracing ultimate issues
 o Confusing the issues
o Misleading

7.5 RELIABILITY OF PRINCIPLES AND

METHODOLOGY (EXCLUDING "JUNK
SCIENCE")
 The courts have gone to great measures to ensure that sufficient procedures are put in place to evaluate the
reliability of scientific principles and methodology in determining the admissibility of scientific evidence.

CURRENT STANDARD/DAUBERT
 Scientific evidence must meet two basic requirements
o It must be relevant to the task at hand; and
o It must be shown to be reliable, or more specifically, scientifically valid.
 The court should make a preliminary determination as to whether the evidence relates to scientific knowledge
and will assist the trier of fact to understand the evidence or to determine a fact in issue

THE RELEVANCY REQUIREMENT

 The court must ensure that the evidence is sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute
 Expert testimony which does not relate to any issue in the case
o Not relevant
o Non-helpful
 The helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility

THE RELIABILITY REQUIREMENT

 In order to be reliable, the scientific reasoning and methodology used must be scientifically valid and must
constitute scientific knowledge
 Factors used in determining scientific validity
o Can and has the method been reliably tested?
 If yes, more reliable.
o Has the theory or technique been subject to peer review and publication?
 Substantive flaws would have likely been detected.
o The known or potential rate of error.
 Low rate of error contributes to the reliability.
o The existence and maintenance of standards controlling the techniques operation.
o Identification of a relevant scientific community and an express determination of whether the
technique has become generally accepted within that scientific community.
 Factors are not exclusive, and courts should apply any other facts that could aid in assessment.

CHALLENGING THE EXPERT TESTIMONY

 An attorney who wishes to challenge the scientific validity of the methodology used by an expert should file a
motion to exclude expert testimony or a motion for a daubert hearing, which must be held pre-trial in civil
cases.
 A daubert hearing is conducted outside of the presence of the jury
 Challenges of reliability go to the admissibility.

LOUISIANA SUP COURT SUMMARIZED REQUIREMENTS FOR EXPERTS

 The expert is qualified to testify competently regarding the matters he intends to address;
 The methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort
of inquiry mandated in daubert; and
 The testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
 8 - PRIVILEGES
8.1 INTRODUCTION TO PRIVILEGES
8.2 SPOUSAL COMMUNICATIONS PRIVILEGE
8.3 SPOUSAL TESTIMONIAL PRIVILEGE
8.4 ATTORNEY-CLIENT PRIVILEGE
8.5 PHYSICIAN-PATIENT PRIVILEGE
8.6 COMMUNICATIONS TO CLERGYMEN
8.7 OTHER PRIVILEGES
 8.1 INTRODUCTION TO PRIVILEGES
 A privilege is the legal right to preclude the disclosure of relevant and, in some cases, highly probative
evidence from trial
 Privileges are said to inhibit the truth-seeking function of the adversary trial
 Privileges are justified based on publicly policy interests that are furthered by the existence of the
privilege and are allowed only when such interests are deemed to be of such importance to outweigh the
potential harm of excluding the relevant evidence from trial.
o Ex. Spousal privilege is designed to show respect for and support the sanctity of marriage by
promoting marital harmony
 Privileges
o protect confidential communications within those relationships where such open communication
is essential to furthering the nature and purpose of the relationships.
o Support and maintenance of certain relationships themselves to prevent a person from perjuring
himself if we were compelled to disclose such information

HOLDER OF THE PRIVILEGE/WAIVER

 The holder of the privilege is the person or party for whose benefit the privilege operates
o Protecting his information, relationship, or other enumerated interest.
 Privileges are personal to the holder who has the sole right to waive it, allowing for the disclosure of the
protected information
 Others can assert the privilege on behalf of the holder, but the holder is the only one who can waive it
 Waiver of a privilege may be express or implied and generally occurs when the holder voluntarily discloses
or consents to disclosure of any part of the privileged matter
 Disclosure by a non-holder does not constitute a waiver of the privilege

PROCEEDINGS IN WHICH PRIVILEGES ARE APPLICABLE

 Apply to all stages of all actions, cases, and proceedings where there is power to subpoena a witness

8.2 SPOUSAL COMMUNICATIONS PRIVILEGE

ART. 504 SPOUSAL CONFIDENTIAL COMMUNICATIONS PRIVILEGE
A. Definition. A communication is "confidential" if it is made privately and is not intended for further
disclosure unless such disclosure is itself privileged.

B. Confidential communications privilege. Each spouse has a privilege during and after the marriage to
refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the
other spouse while they were husband and wife.

C. Confidential communications; exceptions. This privilege does not apply:

(1) In a criminal case in which one spouse is charged with a crime against the person or property of
the other spouse or of a child of either.
(2) In a civil case brought by or on behalf of one spouse against the other spouse.
(3) In commitment or interdiction proceedings as to either spouse.
(4) When the communication is offered to protect or vindicate the rights of a minor child of either
spouse.
(5) In cases otherwise provided by legislation.
  The key components of the spousal confidential communications privilege are
o Applies to communications only;
o The communications must be confidential; and
o Must be made during the existence of a lawful marriage

APPLIES TO COMMUNICATIONS ONLY

 Include information intentionally imparted to the other spouse whether written or oral
 Does not apply to actions or observations unless the spouse intends to assert a message by his actions
 Does not apply to situations in which the spouse may have been talking in his sleep, to himself, or if
spouse inadvertently reads information that the other spouse has written (text, diary)
 Ex.
o Wife observes husband sitting on the bed counting money stolen during an armed robbery. Can't
claim conduct as confidential communication because he did not intend to communicate with
her.
o Wife asks husband if he killed someone and he points at gun, might intend to communicate that
he did kill someone

APPLIES TO CONFIDENTIAL INFORMATION ONLY

 A communication is confidential if it is made privately and is not intended for further disclosure unless
such disclosure is itself privileged
 Those made in the presence of third parties or when the spouses should have reason to know that a third
party might overhear the conversation are not confidential.
 The presence of an eavesdropper will not destroy confidentiality
o But the eavesdropper may testify to the communications where the eavesdropper overhears the
conversation without the cooperation or connivance of one of the spouses
 Whether a communication is confidential is a preliminary determination to be made by the court that will
consider the totality of the circumstances surrounding the making of the communication and the
probable intent of the parties at the time of the communication

COMMUNICATIONS MADE DURING THE MARRIAGE

 Does not apply to statements made before a couple was married or after the marriage ended
 Does not recognize common law marriage purporting to be established in Louisiana so does not apply but
will likely recognize the existence of a lawful common-law marriage recognized by another state

APPLIES DURING AND AFTER THE MARRIAGE

 The privilege to prevent disclosure of communications continues after the marriage ends.

EITHER SPOUSE MAY PREVENT OTHER FROM DISCLOSING

 Belongs to both spouses

EXCEPTIONS
 Domestic violence cases (spouse or child)
 Civil case against other spouse
 Commitment or interdiction as to either spouse; and
 Offered to protect or vindicate the rights of a minor child of either spouse

APPLIES IN CIVIL AND CRIMINAL CASES

 8.3 SPOUSAL TESTIMONIAL PRIVILEGE
ART. 505 SPOUSAL WITNESS PRIVILEGE
In a criminal case or in commitment or interdiction proceedings, a witness spouse has a privilege not to
testify against the other spouse. This privilege terminates upon the annulment of the marriage, legal
separation, or divorce of the spouses. This privilege does not apply in a criminal case in which one spouse is
charged with a crime against the person of the other spouse or a crime against the person of a child including
but not limited to the violation of a preliminary or permanent injunction or protective order and violations of
R.S. 14:79.

KEY COMPONENTS OF THE PRIVILEGE INCLUDE

 Applies to testimony at trial
 Only applies during the existence of lawful marriage
 Only testifying spouse is holder, and may assert or waive; and
 Applies during criminal trial, commitment, or interdictions proceedings

WITNESS SPOUSE SOLE HOLDER OF PRIVILEGE

 May assert it and refuse to testify against other spouse, or she may waive it and freely testify if she
chooses to do so

ONLY APPLIES DURING A LAWFUL MARRIAGE

 Terminates upon annulment, legal separation, or divorce
 When marriage ends, if spouse is compelled to testify, the confidential communications made during
the marriage are still protected.
 Same things apply about common law marriages

APPLIES TO TESTIFYING ONLY

 Privilege does not apply to statements made by a spouse against the other spouse in contexts
outside of testifying in court
o It does not preclude other statements the spouse might have made at the other times or to
other individuals
 Ex. Would not preclude the prosecution from offering a wife's statement against her
defendant/husband that she might have previously made to law enforcement, a friend, or to a family
member
o If she tells her best friend that husband committed a crime, wife could prevent friend from
testifying about what wife told her under this privilege. Could be excluded under other
provisions but not protected by spousal witness privilege

DOMESTIC VIOLENCE EXCEPTION

 Applies when
o one spouse is charged with a crime against the person of other spouse or of a child
o In cases involving violations of a preliminary or permanent injunction or protective order
 State v. Taylor
o In a case where the testifying spouse is the victim of the offense charged, and where the
evidence supports a finding that the victim spouse asserting the spousal privilege is more
probable than not acting under fear, threats or coercion, or that the marriage itself is a sham
confected for the purpose of making the privilege available, the purpose of the privilege is
not served and may be considered as not applicable
APPLIES WHEN CALLED TO TESTIFY AGAINST SPOUSE
 Does not apply if the witness spouse is called to testify for her defendant spouse
o 6th amendment

DISTINCTIONS IN SPOUSAL WITNESS PRIVILEGE AND SPOUSAL COMMUNICATIONS PRIVILEGE

 Types of cases
o Spousal testimonial privilege
 Applies in criminal, interdiction, commitment proceedings
o Spousal communications
 Applies in criminal or civil cases
 What/who it applies to
o Testimonial
 Applies only to current spouse
o Communications
 Applies to communications made during the marriage, even after marriage ends
 Holder of privilege
o Testimonial
 Only the witness spouse holds testimonial privilege and may assert or waive it
o Communications
 Both spouses hold the privilege and may assert the communications privilege to
prevent the other from disclosing the confidential communications made during
marriage
 Duration of privilege
o Testimonial
 Only during the marriage
o Communications
 Both during and after

8.4 ATTORNEY-CLIENT PRIVILEGE

ART. 506 LAWYER-CLIENT PRIVILEGE
B. General rule of privilege. A client has a privilege to refuse to disclose, and to prevent another person from
disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of
facilitating the rendition of professional legal services to the client, as well as the perceptions, observations,
and the like, of the mental, emotional, or physical condition of the client in connection with such a
communication, when the communication is:

(1) Between the client or a representative of the client and the client's lawyer or a representative of the
lawyer.

(2) Between the lawyer and a representative of the lawyer.

(3) By the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who
represents another party concerning a matter of common interest.

(4) Between representatives of the client or between the client and a representative of the client.

(5) Among lawyers and their representatives representing the same client.

(6) Between representatives of the client's lawyer.

  The privilege belongs to the client and only client can waive the privilege
 The attorney may assert it on behalf of client but cannot waive it
 Failure to timely object constitutes a waiver of protections but does not constitute a waiver of the
privilege

WHO IS A LAWYER
 A lawyer is a person authorized to practice law in any state or nation, or is reasonably believed by
the client to be authorized to practice law
o Could apply between a person and someone who is not actually licensed to practice law
 Privilege also extends to communications made to the lawyer's representatives like a paralegal
 Does not extend to a jailhouse lawyer who does not hold himself out to be a lawyer

WHO IS A CLIENT
 A client is a person or entity to whom professional legal services are rendered by a lawyer, or a
person who consults a lawyer for the purpose of obtaining professional legal services from him
 Extends to client's representative - someone authorized to act on client's behalf
 Includes statements made to a lawyer that may not end up actually representing the person

MUST RELATE TO THE RENDITION OF LEGAL SERVICES

 Communications about other things are not included within the privilege, such as plans to participate
in future criminal conduct, taxes, political advice, or any other random topic

PRIVILEGED INFORMATION
 Confidential communications ^
 Also extends to perceptions and observations relating to the mental, emotional, or physical condition
of the client in connection with such a communication
 Does not include
o observations that third parties could have also made
o The concealment of evidence that the lawyer might obtain from the client
 A weapon used to kill a victim
 Would not have to disclose unless it were shown that the statements were made in
furtherance of a plan or conspiracy to commit a future crime

APPLIES TO CONFIDENTIAL COMMUNICATIONS ONLY

 Presence of third parties destroy confidentiality except when
o If made in the presence of thrid parties reasonably necessary for the transmission of the
communication, or those who are present at the behest of the client who are reasonably
necessary to facilitate the communication
o Reasonably necessary to facilitate the communications for the purpose of furthering the
legal services
WHO MAY CLAIM

ART. 506(D)
D. Who may claim privilege. The privilege may be claimed by the client, the client's agent or legal
representative, or the successor, trustee, or similar representative of a client that is a corporation,
partnership, unincorporated association, or other organization, whether or not in existence. The person who
was the lawyer or the lawyer's representative at the time of the communication is presumed to have
authority to claim the privilege on behalf of the client, former client, or deceased client.

 Even after the client dies, the attorney may assert the privilege on behalf of deceased client

EXCEPTIONS TO THE PRIVILEGE

ART. 506(C)
C. Exceptions. There is no privilege under this Article as to a communication:

(1)(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to
commit what the client or his representative knew or reasonably should have known to be a crime or
fraud.
(b) Made in furtherance of a crime or fraud.
(2) Which was with a client now deceased relevant to an issue between parties who claim through that
client, regardless of whether the claims are by testate or intestate succession or by transaction inter vivos.
(3) Which is relevant to an issue of breach of duty by a lawyer to the client or by a client to the client's
lawyer.
(4)(a) Which is relevant to an issue of authenticity or capacity concerning a document which the lawyer
signed as a witness or notary.
(b) Concerning the testimony of a representative of a lawyer regarding a communication relevant to an
issue of authenticity or capacity concerning a document to which the representative is a witness or
notary.
(5) Which is relevant to a matter of common interest between or among two or more clients if the
communication was made by any of them or their representative to a lawyer or his representative
retained or consulted in common, when subsequently offered by one client against the other in a civil
action.
(6) Concerning the identity of the lawyer's client or his representative, unless disclosure of the identity by
the lawyer or his representative would reveal either the reason for which legal services were sought or a
communication which is otherwise privileged under this Article.

 Does not apply to crimes that have already been committed, only for plans to commit future crimes
 Breach of duty
 Claim through deceased clients
 Joint clients
 Documents attested to
 Identity

PROCEDURES FOR OBTAINING TESTIMONY FROM LAWYER REGARDING CLIENT

 In some instances a lawyer may have information that is not privileged
 Art. 507 & 508 list the procedures that must be followed prior to issuing a subpoena to a lawyer
requiring him to reveal such information
CRIMINAL CASES (ART. 507)
 In order to obtain unprivileged information from a lawyer about his client in a criminal case, a
contradictory hearing is required wherein a judge determines that
o The information requested is not protected by the attorney-client privilege or work product
rule;
o The information sought is essential to the successful completion of an ongoing investigation,
prosecution, or defense
o The purpose of seeking the information is not to harass the attorney or his client
o With respect to a subpoena, the subpoena lists the information sought with particularity, is
reasonably limited as to subject matter and period of time, and gives timely notice; and
o There is no practicable alternative means of obtaining the information

CIVIL CASES (ART. 508)

 In order to obtain unprivileged information from a lawyer about his client in a civil case, a
contradictory hearing is required wherein a judge determines that
o The information requested is not protected by the attorney-client privilege or work product
rule;
o The information sought is essential to the successful completion of an ongoing investigation,
is essential to the case of the party seeking the information, and is not merely peripheral,
cumulative, or speculative
o The purpose of seeking the information is not to harass the attorney or his client
o With respect to a subpoena, the subpoena lists the information sought with particularity, is
reasonably limited as to subject matter and period of time, and gives timely notice; and
o There is no practicable alternative means of obtaining the information

EFFECT ON WORK PRODUCT RULE

 Does not affect the protections of information the attorney may have gotten by reason of his
representation under the work product rule
 Protects from
o Reports, memos, or other internal documents made by the other side or statements
obtained from witnesses in anticipation of litigation or in preparation for trial

8.5 PHYSICIAN-PATIENT PRIVILEGE

ART. 510 HEALTH CARE PROVIDER-PATIENT PRIVILEGE

CIVIL PROCEEDINGS
 A patient has a privilege to refuse to disclose and to prevent another person from disclosing a
confidential communication made for the purpose of advice, diagnosis, or treatment of his health
condition between or among himself or his representative, and his healthcare provider, or their
representatives
WHO IS A "HEALTHCARE PROVIDER"
 A physician licensed to practice medicine in any state, a psychotherapist, which is a physician
engaged in the diagnosis or treatment of a mental or emotional condition, a licensed or certified
psychologist, a licensed professional counselor or social worker
 Also includes a person who is engaged in any office, center, or institution referred to as a rape crisis
center who has undergone at least 40 hours of sexual assault training and who is engaged in
rendering advice, counseling, or assistance to victims of sexual assault
 Extends to representatives, personnel of a hospital whose duties relate to the healthcare of patients
or to maintenance of records
 Extends to anyone that the patient reasonably believed

MUST RELATE TO HEALTH CONDITION

 Advice, diagnosis, or treatment of any physical, mental, or emotional condition including a condition
induced by alcohol or drugs

CONFIDENTIAL COMMUNICATIONS/PRESENCE OF THIRD PARTIES

 Not intended to be disclosed to persons other than
 Includes any information, substance, or tangible object incidentalto

EXCEPTIONS TO THE PRIVILEGE

 Include communication
(a) That relates to the health condition of a patient who brings or asserts a personal injury claim
in a judicial or worker's compensation proceeding
(b) When the communication relates to the health condition of a deceased patient in a wrongful
death, survivorship, or worker's compensation proceeding brought as a result of the death
or injury of the deceased patient
(c) When the communication is relevant to an issue of the health condition of the patient in any
proceeding in which the patient is a party and relies upon the condition as an element of his
claim or defense or, after the patient's death, in any proceeding in which a party deriving his
right from the patient relies on the patient's health condition as an element of his claim or
defense
(d) When the communication relates to the health condition of a patient when the patient is a
party to a proceeding for custody or visitation of a child and the condition has a substantial
bearing on the fitness of the person claiming custody or visitation, or when the patient is a
child who is the subject of a custody or visitation proceeding
(e) When the communication made to the health care provider was intended to assist the
patient or another person to commit or plan to commit what the patient knew or reasonably
should have known to be a crime or fraud.
(f) When the communication is made in the course of an examination ordered by the court
with respect to the health condition of a patient, the fact that the examination was so
ordered was made known to the patient prior to the communication, and the
communication concerns the particular purpose for which the examination was made,
unless the court in its order directing the examination has stated otherwise.
(g) (i) When the communication is made by a patient who is the subject of an interdiction or
commitment proceeding to his current health care provider when such patient has failed or
refused to submit to an examination by a health care provider appointed by the court
regarding issues relating to the interdiction or commitment proceeding, provided that the
patient has been advised of such appointment and the consequences of not submitting to
the examination.
 (ii) Notwithstanding the provisions of Subitem (i) of this Item, in any commitment
proceeding, the court-appointed physician may review the medical records of the patient or
respondent and testify as to communications therein, but only those which are essential to
determine whether the patient is dangerous to himself, dangerous to others, or unable to
survive safely in freedom or protect himself from serious harm. However, such
communications shall not be disclosed unless the patient was informed prior to the
communication that such communications are not privileged in any subsequent
commitment proceedings. The court-appointed examination shall be governed by Item B(2)
(f).
(h) When the communication is relevant in proceedings held by peer review committees and
other disciplinary bodies to determine whether a particular health care provider has
deviated from applicable professional standards.
(i) When the communication is one regarding the blood alcohol level or other test for the
presence of drugs of a patient and an action for damages for injury, death, or loss has been
brought against the patient.
(j) When disclosure of the communication is necessary for the defense of the health care
provider in a malpractice action brought by the patient.
(k) When the communication is relevant to proceedings concerning issues of child abuse, elder
abuse, or the abuse of persons with disabilities or persons who are incompetent.
(l) When the communication is relevant after the death of a patient, concerning the capacity of
the patient to enter into the contract which is the subject matter of the litigation.
(m) When the communication is relevant in an action contesting any testament executed or
claimed to have been executed by the patient now deceased.

CRIMINAL PROCEEDINGS
 A patient has a privilege to refuse to disclose and to prevent another person from disclosing a
confidential communication made for the purpose of advice, diagnosis or treatment of his health
condition between or among himself, his representative, and his physician or psychotherapist, and
their representatives

STATEMENTS MADE TO
 Must be made to healthcare provider or representative
 Defined the same as in civil

STATEMENTS RELATING TO
 Communications covered in criminal proceedings must be made for the purpose of advice, diagnosis,
or treatment of any physical, mental, or emotional condition, including a condition induced by
alcohol or drugs

THE CONFIDENTIALITY OF STATEMENTS/PRESENCE OF THIRD PARTIES

 Same as civil
EXCEPTIONS
 (2) Exceptions. There is no privilege under this Article in a criminal case as to a communication:

a. When the communication is relevant to an issue of the health condition of the accused in
any proceeding in which the accused relies upon the condition as an element of his defense.
b. When the communication was intended to assist the patient or another person to commit or
plan to commit what the patient knew or reasonably should have known to be a crime or
fraud.
c. When the communication was made in the course of an examination ordered by the court in
a criminal case to determine the health condition of a patient, provided that a copy of the
order was served on the patient prior to the communication.
d. When the communication is a record of the results of a test for blood alcohol level or drugs
taken from a patient who is under arrest, or who was subsequently arrested for an offense
related to the test.
e. When the communication is in the form of a tangible object, including a bullet, that is
removed from the body of a patient and which was in the body as a result of the crime
charged.
f. When the communication is relevant to an investigation of or prosecution for child abuse,
elder abuse, or the abuse of persons with disabilities or persons who are incompetent.

WHO MAY CLAIM THE PRIVILEGE

 Patient or his legal representative
 Physician on behalf of deceased patient

WAIVER
 Exceptions set forth in b(2) shall constitute a waiver (civil)
 Only as to testimony at trial or to discovery of the privileged communication by one of the discovery
methods authorized

MEDICAL MALPRACTICE
 Privilege does not apply

8.6 COMMUNICATIONS TO CLERGYMEN

ART. 511 COMMUNICATIONS TO CLERGYMEN
A. Definitions. As used in this Article:

(1) A "clergyman" is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of
a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is "confidential" if it is made privately and not intended for further disclosure except
to other persons present in furtherance of the purpose of the communication.

B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from
disclosing a confidential communication by the person to a clergyman in his professional character as spiritual
adviser.

C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The
clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.
Whether the privilege applies is determined by a totality of the circumstances test
 It must be determined that the person to whom the communication was received is a clergyman
 Must be determined that the purpose of the communication was to seek spiritual advice or
consolation
 Must be determined that the communication was made privately and was not intended for further
disclosure except to persons present in furtherance of the purpose of the communication; and
 Even if those explicit requirements of the article are met, it must also be determined whether or not
the communicant waived the application of the privilege

STATE V MUDD
 Did not apply to a statement that was made to a lady who periodically volunteered at the halfway
house where she met the defendant

CONFIDENTIALITY/PRESENCE OF THIRD PARTIES

 Not destroyed if third person is present in furtherance of the purpose of the communication

TERMINATION OF PRIVILEGE
 Survives a person's death
 See 511(c)

HOLDER/WAIVER
 The communicant is the sole holder of this privilege and the only person that can waive
 Clergyman can claim on behalf

8.7 OTHER PRIVILEGES

 Protecting the tenor of a person's vote lawfully cast in a political election (512)
 That protects a trade secret owned by a person that does not conceal fraud or otherwise work
injustice (513)
 That protects the identity of a person who has furnished information in order to assist in an
investigation of a possible violation of a criminal law (art. 514)
 That protects communications made for the purpose of obtaining professional accounting services,
as well as the perceptions, observations, and the like, of the mental, emotional, or physical condition
of the client in connection with such a communications (art. 515-517)
 9 – SOCIAL POLICY
ISSUES
9.1 SUBSEQUENT REMEDIAL MEASURES
9.2.1 COMPROMISE AND OFFERS TO COMPROMISE
9.2.2 PAYMENT OF MEDICAL AND SIMILAR EXPENSES
9.3 INADMISSIBILITY OF PLEA DISCUSSION
9.4 LIABILITY INSURANCE
9.5 WORKER’S COMPENSATION PAYMENTS
9.6 ACT OF CONTACTING AN ATTORNEY
 9.1 SUBSEQUENT REMEDIAL MEASURES
ART. 407 SUBSEQUENT REMEDIAL MEASURES
In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less
likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in
connection with the event. This Article does not require the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of
precautionary measures, or for attacking credibility.

 Ex. If a business installs a handrail on a staircase after a customer falls, installing the handrail is a
subsequent remedial measure.
o Cannot be offered at trial to prove that owner was negligent.
 This rule is policy based and is designed to encourage social responsibility

REQUIREMENTS FOR THE EXCLUSION OF EVIDENCE TO APPLY

 Civil action only
o But does not apply to products liability or strict liability > applicability of the rule is determined
by 403 balancing
 Measure must be taken subsequent to an accident
 The measure must be remedial
o If taken before the accident it would have made the event less likely to have occurred
 Measure must be taken by party accused of the negligent conduct, not a third party; and
 Not offered for a permissible purpose such as ownership, authority, knowledge, control, or feasibility

PERMISSIBLE USES
 While evidence of subsequent remedial measures may not be used to prove negligence or culpable
conduct, the evidence may be offered for other purposes such as to prove ownership, authority,
knowledge, credibility
 Ex. If a party claimed that he didn’t own the property. Evidence that he rather than some other person or
entity made the repairs would show that he owned the property

ONLY LIMITS THE ADMISSIBILITY OF PARTY'S OWN REMEDIAL MEASURES, NOT THOSE OF OTHERS
 Does not limit the admissibility of measures taken by third persons or entities, only the party's own
subsequent remedial measures.

9.2.1 COMPROMISE AND OFFERS TO COMPROMISE AND SETTLEMENT OR TENDER

ART. 408 COMPROMISE AND OFFERS TO COMPROMISE
A. Civil cases. In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was
disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This
Article does not require the exclusion of any evidence otherwise admissible merely because it is presented in the
course of compromise negotiations. This Article also does not require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution.

B. Criminal cases. This Article does not require the exclusion in a criminal case of evidence of the actions or
statements described in Paragraph A, above, or of a giving or offer to give anything of value by the accused in
direct or indirect restitution to a victim.
ART. 413 SETTLEMENT OR TENDER
Any amount paid in settlement or by tender shall not be admitted into evidence unless the failure to make a
settlement or tender is an issue in the case.

 Encourages to openly and freely discuss the merits of the claims and make legit offers to settle

EXCLUSION APPLIES
 Civil case
 Evidence of offers/promises to pay or offers/promises to accept anything of value
 To settle or compromise any claims
 Where there is dispute as to validity or amount of claim
 To prove either liability for the claim, the validly of the claim, or the amount of the claim; and
 Also excludes conduct and other statements made in compromise negotiations
o Ex. Look, I was drunk. I admit it. Will you take 10k > admission would be inadmissible (collateral
statement)
o If a party cries while negotiating

STATEMENTS OTHERWISE ADMISSIBLE

 Does not require the exclusion of any evidence when it is otherwise admissible
o Evidence already known or discoverable

EXCEPTIONS TO THE RULE

 May be offered to prove
o Bias or prejudice of a witness
o Negativing a contention of undue delay; or
o An effort to obstruct a criminal investigation or prosecution
 Ex. If two plaintiffs and one settles with defendant and subsequently testifies in favor of the defense,
evidence of his settlement is admissible to show that the witness may be biased due to his settlement
with the defense

9.2.2. PAYMENT OF MEDICAL AND SIMILAR

EXPENSES
ART. 409 PAYMENT OF MEDICAL AND SIMILAR EXPENSES
n a civil case, evidence of furnishing or offering or promising to pay expenses or losses occasioned by an injury to
person or damage to property is not admissible to prove liability for the injury or damage nor is it admissible to
mitigate, reduce, or avoid liability therefor. This Article does not require the exclusion of such evidence when it is
offered solely for another purpose, such as to enforce a contract for payment.

 Encourages offers
 Often made in connection with trying to settle
 Collateral statements are not excluded

Ex.
 Look, I admit I was drunk, so how about I pay your medical bills and fix the car so that we can make this
thing go away (settlement)
 Look, I admit I was drunk, so how about I pay your medical bills and fix the car (offer)

EXCEPTION
  Does not require the exclusion of such evidence when it is offered solely for another purpose such as
to enforce a contract or payment

9.3 INADMISSIBILITY OF PLEA DISCUSSIONS

ART. 410 INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED
STATEMENTS
A. General rule. Except as otherwise provided in this Article, evidence of the following is not, in any civil or
criminal proceeding, admissible against the party who made the plea or was a participant in the plea
discussions:

(1) A plea of guilty or of nolo contendere which was later withdrawn or set aside;
(2) In a civil case, a plea of nolo contendere;
(3) Any statement made in the course of any court proceeding concerning either of the foregoing
pleas, or any plea discussions with an attorney for or other representative of the prosecuting
authority regarding either of the foregoing pleas; or
(4) Any statement made in the course of plea discussions with an attorney for or other
representative of the prosecuting authority which do not result in a plea of guilty or which result in a
plea of guilty later withdrawn or set aside.

B. Exceptions. However, such a statement is admissible:

(1) In any proceeding wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it; or
(2) In a criminal proceeding for perjury or false statement if the statement was made by the
defendant under oath, on the record and in the presence of counsel.

 To encourage
o attempts to come to agreements I criminal cases
o Unrestrained condor between the pros and def that leads to effective plea bargaining by
giving the def protection from involuntary self-incrimination
 While he is negotiating over the dispo
 While he is offering to enter into a plea that is later rejected or later withdrawn
 Excludes pleas and plea negotiations (with the prosecuting attorney or their representative) that
either do not result in a plea, or if they do, the plea is later withdrawn or set aside
o Includes statements made in court proceedings
 Excludes statements offered against party or participant negotiations
o But can still offer pleas or negotiations of a nonparty witness for impeachment purposes

WHAT CONSTITUTES PLEA NEGOTIATIONS

 To determine whether statements were made during negotiations, the court must determine
o Whether the accused exhibited an actual subjective expectation to negotiated a plea at the
time of the discussion; and
o Whether the accused's expectation was reasonable given the totality of the objective
circumstances
 o If both a subjective and objective intent are not met, the statements will not be excluded
under this rule

EXCEPTIONS
 Include
o In any proceeding wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it; or
o In a criminal proceeding for perjury or false statement if the statement made by the
defendant under oath, on the record and in the presence of counsel

9.4 LIABILITY INSURANCE

ART. 411 LIABILITY INSURANCE
A. Although a policy of insurance may be admissible, the amount of coverage under the policy shall not be
communicated to the jury unless the amount of coverage is a disputed issue which the jury will decide.

9.5 WORKERS' COMPENSATION PAYMENTS

ART. 414 WORKERS' COMPENSATION PAYMENTS
Evidence of the nature and extent of a worker's compensation claim or of payment of past or future worker's
compensation benefits shall not be admissible to a jury, directly or indirectly, in any civil proceeding with
respect to a claim for damages relative to the same injury for which the worker's compensation benefits are
claimed or paid. Such evidence shall be admissible and presented to the judge only.

 Purpose is to prevent the jury from considering to minimize any award to which the plaintiff might
be entitled.

9.6 ACT OF CONTACTING AN ATTORNEY

ART. 415 ACT OF CONTACTING OR RETAINING AN ATTORNEY
In any criminal proceeding, the act of contacting or retaining an attorney shall not be admissible against any
individual or entity, unless such act falls within an established exception for crime or fraud.
 10 – AUTHENTICATION
AND IDENTIFICATION
10.1 AUTHENTICATION AND IDENTIFICATION
10.2 SELF-AUTHENTICATING EVIDENCE
10.3 REQUIREMENT OF THE ORIGINAL
 10.1 AUTHENTICATION AND IDENTIFICATION
ART. 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
A. General provision. 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.

 Other than testimony, the primary way in which a party establishes the facts to prove his case at trial
is through the introduction of items such as physical evidence, documents, diagrams, and
photographs into evidence.
 Prior to admissibility of an exhibit, must establish foundation and authentication
o Foundation helps establish how the witness knows that it is what the proponent claims
o Authentication establishes that the evidence is what the proponent claims
 Authentication is a condition precedent to the admissibility of all evidence.
 Authentication
o helps to ensure that accurate and trustworthy evidence is being received by the jury
o Shows the relevance of the item to the case at hand
o Adds to the weight and credibility the trier of fact can give to the evidence because it has
been shown to be what the proponent claims it is in their presence

THE STANDARD FOR ADMISSIBILITY

 Evidence sufficient to support a finding that the matter in question is what its proponent claims
o If a reasonable juror could find the existence of the fact
 Evidentiary determination made by judge
 With respect to admissibility of evidence, its authenticity determines its relevance
 Other evidentiary rules still apply

PROCEDURE FOR ADMITTING EVIDENCE

 Appropriate witness
 Foundation laid
 Identification/authentication
o The witness identifies the evidence on the stand, and testifies as to how he knows the
evidence is what it purports to be
 Evidence offered into evidence/subject to other objections to admissibility (relevancy, hearsay, etc.)
 Published to the jury
 If evidence is self-authenticating, no extrinsic evidence, i.e., a witness and foundation, is necessary
prior to admitting it into evidence

ART. 901(B) ILLUSTRATIONS

B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this Article:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based
upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if:

(a) In the case of a person, circumstances, including self-identification, show the person answering to be the
one called; or

(b) In the case of a business, the call was made to a place of business and the conversation related to
business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in
any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form:

(a) Is in such condition as to create no suspicion concerning its authenticity;

(b) Was in a place where it, if authentic, would likely be; and

(c) Has been in existence thirty years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that
the process or system produces an accurate result.

(10) Methods provided by legislation. Any method of authentication or identification provided by Act of
Congress or by Act of the Louisiana Legislature.

METHODS OF AUTHENTICATING EVIDENCE

  When a proponent of evidence seeks to admit evidence at trial, he must consider who can
authenticate the evidence, and by what means the witness will be able to identify it or authenticate
it
 Common methods include
o Witness with knowledge or distinctive characteristics
 Distinctive characteristics such as appearance, contents, substance etc.
o Nonexpert opinion on handwriting
 Someone who is familiar with another's handwriting
 Must have existed prior to litigation in question
o Comparison by expert or trier of fact
 With a known specimen that has been authenticated
o Opinion on voice
 Must be familiar with the person's voice in question
o Ancient documents
 May be authenticated by evidence to establish that it has been in existence for 30
or more years and is in such condition as to create no suspicion concerning its
authenticity and was in a place where it, if authentic, would likely be

CHAIN OF CUSTODY TO AUTHENTICATE EVIDENCE

 All witness testimony taken together
 A break in change of custody goes to weight and no admissibility

CIRCUMSTANTIAL EVIDENCE OF AUTHENTICITY

 Reply letter doctrine
o It may be established that a letter signed by a particular person was actually written by that
person through circumstantial evidence
 Social media accounts

FOUNDATION FOR AUTHENTICATION

REAL EVIDENCE V. DEMONSTRATIVE EVIDENCE

 Real evidence is evidence including physical or tangible objects that actually play a role in the matter
in question
o Must be able to testify that the evidence is in the same or substantially same condition that
it was at the time in question
 Demonstrative evidence did not play an actual role in the incident in question but it illustrates some
fact of evidence that may be helpful to the trier of fact in deciding the case
o Must be able to testify the evidence fairly and accurately depicts
o Must have actually saw the crime scene and not someone who saw the scene before

AUTHENTICATION CASE
 Must still not be excluded by other evidence rules, ex hearsay
 Proper foundation
 10.2 SELF-AUTHENTICATING EVIDENCE
ART. 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal, including electronically generated documents
logically associated with electronically generated seals, purporting to be that of the United States, or of any state, district,
commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands,
or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or
execution.

(2) Domestic public documents not under seal. (a) Domestic public documents generally. A document purporting to bear
the signature in his official capacity of an officer or employee of any entity included in Paragraph (1) of this Article, having no
seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee
certifies under seal that the signer has the official capacity and that the signature is genuine.

(b) Certified Louisiana public documents. A purported record, book, paper, or other document of the State of Louisiana,
or of a department, board, or agency thereof or of a political subdivision of the state or a department, board, or agency of such
a subdivision when certified as being the original by an officer or employee who identifies his official position and who either
has custody of the document or who is otherwise authorized to make such a certification.

(3) Foreign public documents. A document purporting to be executed or attested in his official capacity by a person
authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to
the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose
certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates
of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or
consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to
all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that
they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary
with or without final certification.

(4) Presumptions under Acts of Congress and the Louisiana Legislature. Any signature, document, or other matter
declared by Act of Congress or by Act of the Louisiana Legislature to be presumptively or prima facie genuine or authentic.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin.

(8) Authentic acts, acknowledged acts, and other instruments attested by witnesses. (a) Authentic acts, acts under
private signature duly acknowledged, and instruments attested by witnesses and accompanied by affidavits, as provided by
Louisiana law, whether executed in Louisiana or elsewhere. (b) Documents executed in a jurisdiction other than Louisiana
accompanied by a certificate of acknowledgment executed in the manner provided by the laws of that jurisdiction by a notary
public or other officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto
to the extent provided by general commercial law.

(10) Labor reports. A copy of a report from the Louisiana Workforce Commission, or from any state or federal reporting
agency, which is in the possession of a field officer of the support enforcement services program, office of children and family,
Department of Children and Family Services, introduced as evidence in any child or spousal support proceeding. "Field officer"
means any person designated or authorized as a field officer pursuant to the provisions of R.S. 46:236.1.8.

 The proponent may simply offer these documents into evidence without the need to call any
particular witness to testify that the document is what it purports to be
 10.3 REQUIREMENT OF THE ORIGINAL
ART. 1002 REQUIREMENT OF ORIGINAL (THE BEST EVIDENCE RULE)
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided by this Code or other legislation.

 Does not apply to all physical evidence, only those listed

ART. 1003 ADMISSIBILITY OF DUPLICATES

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;

(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or

(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is
otherwise closely related to a controlling issue.

 For the most part, duplicates may be admissible provided it doesn't appear that there are questions
regarding its trustworthiness
o Changes, alterations
 Duplicates may be excluded if it is central to the controlling issue in the case such as a will

ART. 1004 ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible
if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith;

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;

(3) Original in possession of opponent. At a time when an original was under the control of the party
against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a
subject of proof at the hearing, and he does not produce the original at the hearing;

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue;
or

(5) Impracticality of producing original. The original, because of its location, permanent fixture, or
otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be
incurred in securing the original is prohibitive and it appears that a copy will serve the evidentiary
purpose.

EXCEPTIONS TO THE RULE

 Art. 1004
 11 – OTHER WAYS OF
PROVING FACTS
11.1 JUDICIAL NOTICE OF ADJUDICATIVE FACTS
11.2 JUDICIAL NOTICE OF LEGAL MATTERS
11.3 BURDENS AND PRESUMPTIONS
 11.1 JUDICIAL NOTICE OF ADJUDICATIVE
FACTS
 Another way of proving facts at trial is to have the court take judicial notice of the fact
 There are certain facts of which there is no reasonable dispute as to their existence
 In the interest of judicial economy

ART. 201 JUDICIAL NOTICE OF ADJUDICATIVE FACTS GENERALLY

A. Scope of Article. This Article governs only judicial notice of adjudicative facts. An "adjudicative fact" is a fact
normally determined by the trier of fact.

B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.

C. When discretionary. A court may take judicial notice, whether requested or not.

D. When mandatory. A court shall take judicial notice upon request if supplied with the information necessary for
the court to determine that there is no reasonable dispute as to the fact.

E. Opportunity to be heard. 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. In the absence of prior opportunity to be
heard, the request may be made after judicial notice has been taken.

F. Time of taking notice. A party may request judicial notice at any stage of the proceeding but shall not do so in
the hearing of a jury. Before taking judicial notice of a matter in its instructions to the jury, the court shall inform
the parties before closing arguments begin.

G. Instructing jury. In a civil case, the court shall instruct the jury to accept as conclusive any fact judicially
noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive
any fact judicially noticed.

FACTS THAT THE COURT MAY TAKE JUDICIAL NOTICE OF

 Adjudicative fact
o Normally determined by the trier of fact
o One that is not subject to reasonable dispute in that it is either generally known within the
territorial jurisdiction of the trial court or capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned
 Undisputable facts
o Facts forming part of the common knowledge of every person of ordinary understanding and
intelligence
o If the opposing party can show that a reasonable dispute exists as to the fact, the party should be
given an opportunity to offer evidence of the fact at trial

WHEN MANDATORY
  A court has the discretion of taking judicial notice of any fact whether requested or not, but is required to
take judicial notice of adjudicative facts when requested by a party who has provided sufficient evidence
that there is no reasonable dispute as to the fact

OPPORTUNITY TO BE HEARD
 Prior to taking judicial notice of a fact, a party is entitled to have a fair opportunity to be heard as to
whether a matter is one that is appropriate for the court to take judicial notice, i.e. that there is no
reasonable dispute as to its existence
 Notice is somewhat implied
 The court shall inform the parties of its intention to take judicial notice of a matter prior to closing
arguments beginning

TIME OF TAKING JUDICIAL NOTICE

 A party may request that the court take judicial notice of an adjudicative fact at any stage of the
proceedings, but shall not do so in the presence of the jury

JURY INSTRUCTION
 Civil
o Accept as conclusive
 Criminal
o May but not required to accept as conclusive

11.2 JUDICIAL NOTICE OF LEGAL MATTERS

ART. 202 JUDICIAL NOTICE OF LEGAL MATTERS
A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every
state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the
court's territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court.
B. Other legal matters.
(1) A court shall take judicial notice of the following if a party requests it and provides the court with the information needed by
it to comply with the request, and may take judicial notice without request of a party of:
(a) Proclamations of the President of the United States and the governor of this state.

(b) Rules of boards, commissions, and agencies of this state that have been duly published and promulgated in the
Louisiana Register.

(c) Ordinances enacted by any political subdivision of the State of Louisiana.

(d) Rules which govern the practice and procedure in a court of the United States or of any state, territory, or other
jurisdiction of the United States, and which have been published in a form which makes them readily accessible.

(e) Rules and decisions of boards, commissions, and agencies of the United States or of any state, territory, or other
jurisdiction of the United States which have been duly published and promulgated and which have the effect of law
within their respective jurisdictions.

(f) Law of foreign countries, international law, and maritime law.

(2) A party who requests that judicial notice be taken and the court, if notice is taken without request shall give reasonable
notice during trial to all other parties.

C. Information by court. The court may inform itself of any of the foregoing legal matters in such manner as it may deem
proper, and the court may call upon counsel to aid it in obtaining such information.
D. Time of taking notice. Judicial notice of the foregoing legal matters may be taken at any stage of the proceeding, provided
that before taking judicial notice of a matter in its instructions to the jury, the court shall inform the parties before closing
arguments begin.

E. Question for court. The determination of the foregoing legal matters shall be made by the court.

 Includes state and federal law

 Rules and decisions of state, and federal boards, commission, and agencies, foreign laws

DISCRETIONARY LEGAL MATTERS

 If neither party requests that the court take judicial notice of the items listed in (a)-(f), the court may,
but is not required to take judicial notice.

11.3 BURDENS AND PRESUMPTIONS

ART. 301 SCOPE OF CHAPTER
This Chapter applies only to civil cases. It defines and clarifies the foundation, weight, and other effects of
presumptions and prima facie evidence or proof as used in legislation but does not apply where more specific
legislation provides otherwise. It does not create new presumptions, nor does it apply to or directly affect
mixed questions of law and fact, such as the inference of negligence arising from the doctrine of res ipsa
loquitur.

ART. 302 DEFINITIONS

The following definitions apply under this Chapter:

(1) The "burden of persuasion" is the burden of a party to establish a requisite degree of belief in the
mind of the trier of fact as to the existence or nonexistence of a fact. Depending on the
circumstances, the degree of belief may be by a preponderance of the evidence, by clear and
convincing evidence, or as otherwise required by law.

(2) A "predicate fact" is a fact or group of facts which must be established for a party to be entitled
to the benefits of a presumption.

(3) A "presumption" is an inference created by legislation that the trier of fact must draw if it finds
the existence of the predicate fact unless the trier of fact is persuaded by evidence of the
nonexistence of the fact to be inferred. As used herein, it does not include a particular usage of the
term "presumption" where the content, context, or history of the statute indicates an intention
merely to authorize but not to require the trier of fact to draw an inference.

(4) An "inference" is a conclusion that an evidentiary fact exists based on the establishment of a
predicate fact.

ART. 303 CONCLUSIVE PRESUMPTIONS

A "conclusive presumption" is a rule of substantive law and is not regulated by this Chapter.
ART. 304 REBUTTABLE PRESUMPTIONS
Presumptions regulated by this Chapter are rebuttable presumptions and therefore may be controverted or
overcome by appropriate evidence.

ART. 305 EFFECT OF PRESUMPTIONS IF THERE IS NO CONTROVERTING

EVIDENCE
If the trier of fact finds the existence of the predicate fact, and there is no evidence controverting the fact to
be inferred, the trier of fact is required to find the existence of the fact to be inferred.

ART. 306 EFFECT OF PRESUMPTIONS IF THERE IS CONTROVERTING

EVIDENCE
If the trier of fact finds the existence of the predicate fact, and if there is evidence controverting the fact to
be inferred, it shall find the existence of the inferred fact unless it is persuaded by the controverting evidence
of the nonexistence of the inferred fact.

ART. 307 JURY INSTRUCTIONS

In jury cases, upon request, the jury shall be instructed of the existence of a presumption and instructed as to
its effect in accordance with Articles 305 and 306.

ART. 308 EFFECT OF THE TERM "PRIMA FACIE" IN LEGISLATION

A. Legislation providing that a document or other evidence is prima facie evidence or proof of all or part of
its contents or of another fact establishes a presumption under this Chapter. When, however, the content,
context, or history of the legislation indicates an intention not to shift the burden of persuasion, such
legislation establishes only an inference and in a jury case, the court on request shall instruct the jury that if it
finds the existence of the predicate fact it may but need not find the inferred fact.

B. Other uses of the term "prima facie", such as those that merely provide for the admissibility of specified
evidence, do not create presumptions or inferences, and are not regulated by this Chapter.