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I. PRELIMINARY MATTERS Stages of a Trial: 1. Jury Selection: We ask the jury their age, profession, address, etc. You are looking for relationships with parties or witnesses and viewpoints of jury members. 2. Opening Statement: the lawyer’s version of what will happen during the trial. 3. Presentation of Proof: evidence that is admitted at trial which determines how the case should be decided. 4. Trial Motions: • Motion in Limine: motions desired to introduce evidence or to keep it out before it is admitted. 5. Closing Arguments 6. Instructions: Explain to the jury what they should be ruling on. 7. Deliberations 8. The Verdict 9. Judgment and Post-Trial Motions 10.Appellate Review: one of the primary reasons for reversal is a evidentiary mistake. The Mechanics of Trial: Evidence is presented at trial in parts, and in the following general order, subject to change under certain rules, such as FRE 106 and FRE 611(b). 1. Plaintiff (or Prosecutor) presents his case-in-chief, then rests; 2. Defendant presents his case-in-chief, then rests; 3. Plaintiff (or Prosecutor) presents his case-in-rebuttal; 4. Defendant presents his case-in-rebuttal (sometimes called “case-inrejoinder”) 5. Each side presents further cases-in-rebuttal (sometimes called “case-inrejoinder”) Order of Examination: 1. Direct Examination by the calling party; 2. Cross Examination by the adverse party; 3. Redirect Examination by the calling party; 4. Re-cross by the adverse party; 5. Further redirect and re-cross may be necessary The record consists of: • The Pleadings • Filed Documents • Record of Proceedings • Exhibits: anything tangible other than an eye witness testifying • Docket Entries: court has an index to the file that tell you the kind of document and when it was done.
Types of Evidence: • Testimonial: testimony of the witness • Real Evidence: tangible things directly involved in the transaction or events in litigation. (ex: the weapon used in the homicide) • Demonstrative Evidence: tangible proof that in some what makes graphic the point to be proved. (ex: diagrams, photographs, etc.) • Writings: (ex: laboratory reports and medical records) II. SCOPE
FRE 611(b)—Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. • Subject Matter of Direct: determines the subject matter of the cross. Courts can interpret the subject matter of direct in 3 ways—Judge may take any of the following views of whether to admit the testimony: (1) Narrow interpretation: confines the cross-examiner to points raised on direct; (2) Broader interpretation: lets the cross-examiner ask about the “transaction described” on direct; and (3) Even broader interpretation: lets the cross-examiner ask about any “issue affected” by the direct. (i.e.: any issues that are raised on the direct can be asked on cross.) Matters Affecting the Credibility of the witness: goes to a witnesses’ motivation to lie. Credibility includes anything that is properly challenged through impeachment, which means that it includes both intentional (the witness lied) and involuntary (the witness was mistaken) lack of accuracy. It is important to note Rule 611(b) only allows you to question the witness regarding matters that affect the credibility of that witness who is then testifying, not someone else. Permitting Inquiry into Additional Matters: Even if a court finds matters to be “beyond the scope of direct,” the court can choose to allow the testimony of these matters (allowing all the information from each witness to be admitted all at once.) The cross-examining party can in essence change “hats” to become the “direct examining” party (asking questions beyond the scope) sooner rather than later. In a simple case, this prevents having to excuse and recall the same witnesses over and over.
**The answer to the question controls the subject matter of the direct. If the question asks one thing, what was said determines the scope.** Problem 1-A: “How did it Happen: the Scope of direct/crossexamination”
At an intersection, 2 cars collide—a yellow Fiat driven by Abby (Carl was the passenger), and a blue Buick driven by Eric. Abby sues Eric for personal injuries and property damage. During her case-in-chief, Abby calls Carl who testifies on direct that the “Buick ran the red light.” On cross-examination, Eric’s counsel asks Carl (1) if Carl and Abby are seeing each other; (2) whether Abby was looking out of the back window of the car at the time of the accident; and (3) whether Abby had drank 3 glasses of wine just before the accident). To each question Abby’s attorney objects that the statements are beyond the scope of direct. Answer: Preliminary Questions to Answer under FRE 611: (figuring out the relative position of the testimony) Who is presenting the evidence? Plaintiff’s witness What part of the trial are we in? Cross examination in Plaintiff’s case-in-chief. Whose witness is it? Plaintiff’s What kind of witness is it? Fact Witness What are they presenting? Question 1: This goes directly to the credibility of the witness (how truthful are they? Should we believe what is being said?) A social relationship might incline Carl to help Abby. Question 2: This will depend on how we interpret the scope of direct. The point raised on direct was the color of the light (i.e.: that the color was red and the D ran it) (1) Narrow interpretation: the cross would be beyond the scope (2) Broader interpretation: this would include anything that was going on at the intersection, in which case the question is proper. (3) Even broader interpretation: question is proper. Question 3: The fact that Abby was drinking wine is not in the subject matter of the direct. The direct is focused on Eric’s actions, not Abby’s. Because we are looking solely at the conduct of Eric, Abby’s conduct is beyond the scope. If the subject matter of the direct was “causation of the crash” But, this testimony would be the subject matter of direct. FRE 611(c) Leading questions Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. III. MAKING
RECORD & ADMITTING EVIDENCE
FRE 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) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and 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. It may direct the making of an offer in question and answer form. • An objection must be made in order to exclude evidence. An objection is also required to appeal the admission of evidence. The objection must be timely and should include a statement of the underlying reason (grounds for the objection). o The general objection: if overruled, a general objection does not preserve for review whatever point the objector had in mind. o Motion in Limine: a ruling in advance used (1) when a party anticipates that particular evidence will be offered to which he will object or (2) when a party anticipates that an item of proof that he plans to offer will meet objection from the adverse party. An offer of proof is required to appeal the exclusion of evidence. A lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he wants to preserve the point for later appellate review, which means demonstrating to the trial court exactly what he is prepared to introduce if permitted (i.e.: an attorney offers to the court what they were going to show and why they were going to show it, to preserve it for appeal). No need to renew an objection: ex: If you have multiple P’s and one P objects, the other P’s don’t also need to object to preserve the objection for appeal as it applies to them. Requiring each party to reiterate objections adequately made by similarly-situated parties would clutter and burden the proceedings.
Kinds of Error: 1. Reversible Error: the kind of mistake which probably did affect the judgment. 2. Harmless Error: the kind of mistake that probably did not affect the judgment. 3. Plain Error: the kind of error that warrants relief on appeal even though appellant did not take the right steps to preserve his rights. (i.e.: he did not object or make an offer of proof) 4. Constitutional Error: a mistake by the court in criminal cases in admitting evidence for the prosecution that should have been excluded under the Constitution. Problem 1-B: He didn’t object!
Carl joins with Abby as the second Plaintiff in the suit against Eric. (See problem 1A) The defense offers testimony by police officer Hill based on the measurements of skid marks at the scene, that Abby was traveling at 50 mph (where the posted speed limit was 35 mph). Counsel for Abby objects (1) that the officer is not qualified as an expert in accident reconstruction and (2) evidence of skid marks involve pure speculation (i.e.: this is not something someone can be an expert on (ex: speaking to the dead) or in this case, estimates of speed is not something that should be the basis of expert testimony. (See FRE 702) Carl and Abby lose and Carl appeals. Eric objects that Carl did not object at trial (it was Abby who objected). Can Carl recover? Answer: In this case the Co-Plaintiff (Abby) was the one that objected and not Carl (the party that filed the appeal.) However FRE 103(a) allows Carl to raise this issue on appeal. Carl is not done, however. In order to prevail, having shown there was an appropriate objection (under FRE 103) the party now needs to show there was an error and that error affected a “substantial right” of the losing party. • Was a substantial right of the appellant (Carl) affected? Losing is not enough to show a substantial right was affected. You have to show that by admitting that evidence, a substantial right was affected. (FRE 103(a)) In this case, negligence by Abby in speeding might bar or reduce her recovery, but it will not bar Carl’s recovery. In order for Carl to show a substantial right was affected, he must argue the jury likely found for Eric because it concluded that Abby’s speed caused the accident. o If there is other overwhelming evidence that would still have the court determine what it determined at trial or if this one thing would not have an effect on the ruling than there is no reversible/harmful error. o Remember, even if there is not an appropriate objection, a court may under FRE 103(d) hold a substantial right was affected and that the error is reversible/harmful. But, if an objection was made under rule 103(a), you do not need to reach 103(d).
FOREST: Paradigm to solve relevant questions: 1. Preliminary: Who decides if the evidence is Relevant? (FRE 104(a) & FRE 104(b)) a. Judge decides whether to admit the evidence b. Jury decides the weight to give the evidence 2. Relevance: Is this evidence relevant? (FRE 401, 402) 3. Specific Rule (specific rules of exclusion or admission) (FRE 891, FRE 404) 4. Probative Value verses the six factors: do the balancing test FRE 403—the more compelling the argument you make the evidentiary hypothesis (story to persuade your side of why the evidence should be
admitted and what this evidence will show) the more likely it will have a probative value and be admitted. 5. Jury Instructions to Recast the balance. As noted above, in any exam question, relevance should always be the starting point: It is always the threshold question because all areas of evidence law depend on the answer to the relevance question. On the exam, every answer to a question needs at least one sentence explaining why the evidence is relevant in the case—i.e.: what is the purpose for this offer of evidence? The purpose for which you offer evidence determines all other aspects of evidence law. I. DEFINING RELEVANCE There are two categories of relevance: LOGICAL RELEVANCE (FRE 401) and PRAGMATIC RELEVANCE (FRE 403). LOGICAL RELEVANCE: FRE 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.
Relevant Evidence can be referred to as logical relevance: it is an easy standard of admissibility—the evidence is relevant if it has any tendency to make a material proposition more probable or less probable than it would be without the evidence. (i.e.: Does this evidence help at all to prove a material proposition? Does it make a material proposition more probable than it was before? If yes, it is relevant.) Consequence=material. As noted, the fact must be material (i.e.: any fact that is of consequence to the determination of the action.)
FRE 402—Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
There are four possible definitions of what relevance means, however the FRE take the most liberal definition (more probable than it was before). FRE 401 implicates you are allowed to admit “direct” (establishes the point for which it is offered) and “circumstantial evidence” (even if true, fails to support the point in question, because there is an alternative explanation) using either “deductive” (conclusion necessarily follows) or “inductive” (conclusion does not necessarily follow) reasoning. That means your support for relevance can be as weak or as minimal as a circumstantial, inductive argument which could be true. (All you need is the minimal level of information that establishes something is more probable than not.)
• We want the ultimate truth to be determined by subjecting the evidence to the tools of the adversary system: cross-examination. the more • Pragmatic evidence has a stricter standard of admissibility than logical evidence. HOW RELIABLE IS THE EVIDENCE? probative value it has The more reliable something is. or Waste of Time Although relevant. so the FRE has adopted a liberal standard. and argument.) • PRAGMATIC EVIDENCE: FRE 403—Exclusion of Relevant Evidence on Grounds of Prejudice. WHO DECIDES RELEVANCE? FRE 104—Preliminary Questions (a) Questions of admissibility generally. In making its determination it is not bound by the rules of evidence except those with respect to privileges. waste of time. this evidence is admissible “subject of course to the courts discretion to exclude it should the court decide that its probative value is substantially outweighed by (insert consideration here) II. This is because the evidence is too remote to be logically relevant. Evidence which concerns some other time. Confusion. Preliminary questions concerning the qualification of a person to be a witness. (However. there are 8 exceptions where the evidence involves some other time. rebuttal. or needless presentation of cumulative evidence. subject to the provisions of subdivision (b). or misleading the jury. event or person when it will be admissible—see examples below. Evidence may be logically relevant but we may still keep it out because its probative value is substantially outweighed by auxiliary considerations: • Fairness • Danger of unfair prejudice • Confusion of the issues in the minds of the jury • Misleading the jury • Considerations of undue delay • Waste of time • Needless presentation of cumulative evidence • The trial judge can exclude even logically relevant evidence when its probative value is substantially outweighed for any of the above reasons. evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. • FRE 403 should be mentioned in every evidence question. confusion of the issues. the existence of a privilege. event or person will generally not be relevant and therefore not admissible. or the admissibility of evidence shall be determined by the court. Evidence Outline Page 7 . or by considerations of undue delay. Your answer should always read.
That is the jury decides the weight of evidence. 609) o Examples of conditional relevance: (p. he may decide there needs to be more facts to support the evidence (if the evidential hypothesis is too strained) and will admit the evidence only on condition that the other facts are also admitted to support the evidence under FRE 104(b).”) The judge admits the evidence if it is material and relevant under FRE 104(a) However. (e) Weight and credibility. When the relevancy of evidence depends upon the fulfillment of a condition of fact. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 608. 85) • Questions of Authenticity (like connecting a gun found by a cop on the scene of the crime) • Whether a witness has personal knowledge • Credibility of Witness Statements • Prior Bad Acts • ***Note there is an overlap between the responsibilities of the judge and jury. The judge also makes all findings of law before the matter is given to the jury and fact (if no reasonable person could conclude otherwise).e. the jury also makes its decision under FRE 104(b) as to what weight to give to that witness’s testimony. (Commentators call this “conjunction. o The judge is simply required to find that a jury could find the evidence true/false.(b) Relevancy conditioned on fact. (ex: if we are dealing with the occurrence of a prior act. o A jury decides if a condition is satisfied when different answers are reasonable. using 104(b). This includes deciding when relevance turns on the fulfillment of a condition of fact. • Simple Relevance: The trial judge alone determines questions of “admissibility” under FRE 104(a)—i. or the occurrence of another conviction) (See FRE 404(b). Conditional Relevance (104(b)): the jury asses (or weighs) the evidence at the end of the case determining its credibility. o The Judge decides whether something is relevant in the overwhelming majority of cases. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. o Keep in mind the judge will make sure he gives the jury careful instructions. Ex: Even though the judge may make a preliminary decision over FRE 104(a) that the expert is qualified as an expert. in which the relevance depends on the truth of other evidence (with the judge acting as a gatekeeper). Only a judge is qualified to decide this point because it turns on substantive and procedural rules. the court shall admit it upon. Evidence Outline Page 8 .: whether a particular point is “consequential” (material) within the meaning of FRE 401. or subject to. (ex: if you find A you may proceed to find B).
Where the intent or state of mind of the party is at issue: You prove intent and state of mind by the conduct of a person. it is to rebut the claim or defense of impossibility. But. KNOW THIS NOTE and annotate next to 104(b) what Huddleston rules. To rebut: Most commonly. Another standard is possible (i.Huddleston verses Booker (Notes on Page 87-90) The standard to be applied when using FRE104(b) is from Huddleston— preponderance of the evidence. You may show what other chattels or other parcels of real property have sold for as some evidence of the value of your chattel or parcel of real property providing 3 requirements are met: Evidence Outline Page 9 . the Supreme Court rejected these other possibilities. by choosing Huddleston. 3. Asserting a defense of impossibility opens the door to this evidence.e. Even beyond notice. • Malavet wants us to know how to construct the evidential hypothesis that supports admissibility and how to counter that evidential hypothesis • In constructing the evidential hypothesis determine • How will the evidence bear on the case? • What point will this evidence tend to prove? • Why does this point count? Eight General Exceptions where evidence will be admissible: 1. LOGICAL RELEVANCE Establishing Relevance: The proponent must be prepared to advance an “evidential hypothesis” explaining why his proof is relevant. The D says I don’t discriminate. 5. to show the discriminatory intent of the D employer. Comparable sales to establish value: at issue is the value of your chattel or your parcel of real property. Complicated issues of causation: Used to prove cause and effect (See Boys on the Bridge) 2. 4. other accidents can also prove that the instrumentality is dangerous and defective. Prior accidents or claims: Generally these are not admissible— 2 two exceptions if the D wants to show prior accidents of claims of the P: (1) to show common plan and scheme of fraud—if D can show the P’s prior claims were fraudulent in nature they will be admissible (2) to show the prior accidents and claims are relevant on the issue of damage to the P—if P is claiming an injury to the same part of her body that has been injured in a prior accident than the jury is entitled to know that 1 exception if the P wants to show other accidents involving the same instrumentality: (1)Other accidents involving the same instrumentality which occurred under the same or similar circumstances will be admissible because it tends to show notice or knowledge on the part of the D. III.: not all states hold this). Ex: Gender discrimination case in employment. Can the P admit into evidence how the D treated other women? Yes.
Examples of Logical Relevance Problem 2-A—Was He Going to Fast? There was a collision between two cars (Gadsky and Reinhart) and both drivers die. Is information pertaining to the speed of Gadsky (going 80 mph) 30 minutes before the accident relevant to a case determining who caused the accident? Answer: Logical Relevance: Evidence that Hill saw Gadsby going 80 MPH is relevant on the question of Gadsby’s speed speed on impact (FRE 401) Pragmatic Relevance: the probative worth is small because of the 30-mile (about 23-minute) gap between sighting and impact (FRE 403).: to be careless. happy. so we can say it is habitual (more than just one or two times) (ADMISSIBLE) Note: It is discretionary with the court how many times something becomes habit. circumstantial evidence). If a party does anything 3 or more times. D wants to offer evidence from Carla that there were boys running away from the bridge at around the time of the incident.: just because the evidence is presented does not automatically mean the company is negligent (this is what we mean by non-conclusive). etc. Is this evidence relevant? Answer: Evidential Hypothesis: The boys running away from the bridge could have caused the chunk of concrete to fall. Make sure not to confuse: • Disposition evidence: The disposition of a person (i. The rule is the same as it is for habit. Here. there are three rules which tend to overlap. (See Below for entire Section on Habit) 7. mention the possibility it could fit under habit evidence. Industrial or business routine: this is habit evidence all over again with corporations. (i. Hill (a witness) will testify that he saw Gadsby going 80 mph 30 minutes before the accident. Industrial custom as evidence of the standard of care: the custom of the business or trade is non-conclusive evidence on the standard of care. (NOT admissible) • Specific Prior Acts: Evidence that a person acted in a certain way on a prior occasion (once or twice) is not admissible to show the person acted the same way at the time of the litigated event. This fact makes it Evidence Outline Page 10 . (NOT admissible) • Habit Evidence: must be (1) specific detailed conduct (not general like disposition) and (2) reoccurring—the specific conduct must have occurred often enough. Problem 2-B—Boys on the Bridge A driver is hit by a chunk of concrete while driving under a bridge.e. 8. P sues the Construction Company (D).: it is possible the boys are responsible for the brick falling on P’s car—inductive. A construction company is in the process of re-building the bridge.e. (i.6.e. careful. Habit Evidence: The habit of a person is admissible to infer that at the time of the litigated event.) is not admissible to show the person was careful or careless or happy at the time of the litigated event. this person acted in conformity with his or her habit.
because there is the possibility of an alternative cause. Chapple Defendant was accused of killing someone related to a drug deal. it cannot be admitted. • Analytically. Two witnesses said he did it. flight is an admission by conduct—Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight. At trial the State calls Brenda (Carl’s girlfriend). IV. and • The nature of the prior misdeeds (is it inflammatory?) State v. The next day Joe and Andy examine mug books and independently identify Carl as the thief. Problem 2-C—Flight and Guilt A man with a sawed off shotgun robs Joe and Andy. (Therefore it is relevant). (material). If you can’t establish that the D flew because of consciousness of the crime he is being charged with. Who caused the action is material to determining whether D should be liable. thus meeting the standard of FRE 401. PRAGMATIC RELEVANCE Unfair Prejudice under FRE 403: Unfair prejudice may (1) inflame or anger the jury binding the issue of guilt to the D because of the evidence or (2) induct the jury to draw a general propensity inference rather than using the proof in a more particularized manner. FRE 403 questions can be resolved very differently in these cases. Pragmatic Relevance: The probative value of evidence of flight can vary greatly. for committing the crime he is charged with. Answer: Evidentiary Hypothesis: This evidence could show D was hiding or fleeing showing he was guilty of robbing Joe and Andy or the D ran into the closet to flee from the police out of guilty consciousness. (3) from consciousness of guilt to consciousness of guilt concerning the crime charged. Evidence of flight is relevant because it can show consciousness of guilt. • Evidence of flight does not create a presumption of guilt but it can be evidence of guilt. police arrest Carl at his house. The state offers testimony that when the police came to the house to get Carl. Carl says this is irrelevant. and (D had to know he was wanted) (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. depending on the facts of the case. the judge considers such factors as • Prosecutor’s need for the evidence • The degree of probative worth on the particular question. The cause of the chunk falling is a fact that is of consequence to the determination of the action. Balance—in deciding whether the risk of unfair prejudice substantially outweighs probative worth. Carl hid in the closet. (2) from flight to consciousness of guilt. Evidence Outline Page 11 . Later.less probable that the D caused the chunk of concrete to fall.
The only issue being tried was whether it was the D that did it-. The fact that the victim was killed. However.Prosecutors submitted gruesome pictures of the deceased.the defense was saying we admit the person died of a violent death. The probative value of the relevant photos was thus outweighed by the danger of unfair prejudice. during which time she divorced Donald. • Relevancy is not the sole test of admissibility for the trial court.) The evidence is being offered during the prosecution’s case-in-rebuttal. there was definitely a danger of unfair prejudice. The two things the prosecution must establish. Evidentiary hypothesis—Flight to the battered women’s shelter suggests that: Evidence Outline Page 12 . D contends the trial court erred by admitting pictures of the “charred body and skull of the victim. the admission was an abuse of discretion. Since there was so little probative value to these photographs and since their capacity to inflame is so obvious. (the D is trying to say his wife fell into the knife) The state is offering testimony by a counselor at a Shelter for Battered and Abused Women that two years earlier the wife had sought refuge there for about 30 days. • In this case. but it is not our client who killed him! • Because the photographs could very well have inflamed the minds of the jury enough to impair their objectivity. • Evidential hypothesis being proffered by the prosecution: the pictures prove the witness’s statement that the deceased was shot in the head (cause of death) and that it was homicide (manner of death). the cause of his death. the photos were relevant under FRE 401 to establish a case for first-degree murder.” The pictures were in vivid color and were extremely gruesome (court goes into grave detail explaining the gruesomeness). He claims he stabbed his wife on accident. Times when pictures probably would be allowed to be admitted: • To identify the deceased • To show the location of the mortal wounds • To show how the crime was committed • To show the brutality of the crime (when there is a standard for the crime that brutality matters) • To aid the jury in understanding the testimony of the witness (although an autopsy report may do just as good) Examples of Pragmatic Relevance Problem 2-E—“The Battered Wife” A man is charged with killing his wife. they had little probative worth. The facts issued in the photograph were simply not in dispute or at issue. On appeal. and what was done to the body after death were not in controversy. (Prosecution is trying to say there has been a history here of abuse. Where the offered exhibit is of a nature to incite passion or inflame the jury-and the photographs in the case at bench certainly fall within this category—the court must go beyond the question of relevancy and consider whether the probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit.
jury returns a verdict for D.: was this a mistake or intentional) this evidence has a high probative value because it can go to the D’s intent. D’s side: (arguing against a probative value) • Just because she went to the shelter two years ago does not mean there was abuse or even that it continued. alleging that negligent design of the fuel tank caused Risner’s death. and that she fled to the battered women’s shelter because of abuse. • As to the element of motive/intent (i. entered by the driver of the impacting vehicle to charges of involuntary manslaughter arising from the accident. Mrs. Under FRE 104(b) the judge could admit this evidence but would probably require the attorney to establish the H & W were living together at the time she fled to the shelter. Problem 2-F—“Exploding Gas Tank” There is an exploding gas tank as a result of a car crash. the court would find the evidence is indeed prejudicial but not unfairly prejudicial. The judge would likely not admit under FRE 104(a) because it is difficult for the judge to determine by the preponderance of the evidence that this proves the intent to kill her.e. Answer: Here we have 2 pieces of evidence (testamentary evidence of the speed & a guilty plea) being offered to show the cause of the accident was the negligence of the driver and not due to the negligent design.• • • • • • The victim was afraid She remembered a frightening event The event actually happened It must be something defendant did (it was he whom she feared) Defendant was hostile toward her (his behavior indicated hostile intent) and finally He later acted on that hostility by killing her. that there was no one else in the house that could have been the source of abuse. urging the trial court should have excluded the evidence under FRE 403. • Evidentiary Hypothesis: This evidence goes to the conclusion of whether the explosion was caused by negligence on the part of the driver verses Evidence Outline Page 13 . At trial. • The longer she has been with the H the more her dependency has been. Risner appeals. (this was an isolated incidence) • There are no signs of physical violence • There are no records to establish abuse Most likely. In the end. This evidence is relevant. The automaker also introduces a certified copy of a guilty plea. but does it pass the muster of FRE 403? P’s side: (arguing for a probative value) • The victim has had a dependency on the D and endured a lot of abuse. The passenger (Risner) dies. but his wife sues the automaker. D (automaker) introduces testimony by a state trooper that the impacting vehicle was going about 68 mph at the time of the impact. Therefore it ought NOT to be excluded under FRE 403.
It was just the appeals court letting the trial court know they should not admit it. or control. FRE 105—Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted. Nor would the absence of liability insurance be admissible to prove the contrary. to admit evidence of liability insurance for an exception purpose as long as the judge gives the jury a limiting instruction on how to use the evidence. • It is a headache for judges that evidence tends to prove too much—evidence that proves one point can prove another (which is highly prejudicial). we keep it out: (1) Liability Insurance (2) Subsequent Remedial Measures (3) Settlements 1. i. This rule authorizes the court to admit the evidence. (ex: evidence that proves liability insurance (prejudicial) but at the same time proves admission of guilt (proves a point).: just because the driver admitted he was guilty does not mean the tank was made good.) Evidence of the guilty plea confused the issue of causation. with considerable risk of confusion. Common FRE 403 Exceptions: Three main situations where the specific conduct will probably be logically relevant but because of policy considerations of FRE 403.• • • negligent design on behalf of the automaker. or bias or prejudice of a witness. Important: This was not reversible error. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose. • • Evidence Outline Page 14 . If this plea may be received on this issue. but give limiting instructions to prevent misuse on other issues or against other parties. upon request. the trial court must instruct the jury on the concept of causation in tort law.e. ownership. • Liability is not admissible to show any kind of fault on the D or the ability of D to pay. the court. LIABILITY INSURANCE FRE 411—Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. 402. This rule allows judges in the context of liability insurance cases. Court said the guilty plea should have been excluded because it was prejudicial (it confused the jury with criminal law (guilty plea) when the law that should be used is civil (more than 1 tortfeasor can be liable. such as proof of agency. (goes to who caused the accident) Therefore this is relevant under FRE 401. shall restrict the evidence to its proper scope and instruct the jury accordingly.
(Makes it more probable that Linda caused the accident) 2. I’m sure my insurance will cover it. The D’s witness said “I saw the cars enter the intersection and the P ran the red light. Answer: P(Myra) is trying to say D (Linda) admitted to causing the accident. It is relevant to who caused the accident. 2. We want to protect people Evidence Outline Page 15 . (FRE 801(d)(2)): “A statement is not hearsay if the statement is offered against a party and is the party’s own statement in an individual capacity. 1. however Linda objects. bias. Myra sues and Linda counterclaims. this will be used to show a party’s admission of guilt. Note: There is a hearsay issue here. however the hearsay objection should be overruled because of the admission doctrine. anything that comes out of your mouth following an accident will be treated as a party admission under the Rule. If someone is disputing they own a car or building you can admit the fact that they have liability insurance on the property to show the person owns it.000 in damages. Where it is relevant to impeach the credibility of a witness by showing interest or bias or motive. This evidence is not admissible under FRE 411 because Myra is using to try and prove that Linda was at fault. what do we do? 4.” Basically. when the statement is offered by your opponent at trial.Exceptions to liability insurance: If the liability insurance is relevant on some other basis. or motive to lie or exaggerate. It can be used if a witness has a motive for falsifying testimony. This is relevant to impeach the credibility of the witness by showing the witness has an interest. They’ll pay for what happened to your Porsche. Ex: P sues D for personal injury damages arising out of an intersection automobile accident.” Both cars end up having about $6.) A confession relieves the opposing party from having to prove otherwise. Myra wants to offer this evidence. To show a party’s admission of liability: If I admit that I was the cause of the accident and that I have liability insurance to cover it. The judge should give a limiting instruction telling the jury to exclude any admission of insurance. Capacity to pay should not affect an objective finding that someone should pay. An admission would prove fault (confession. 3. To prove ownership and control when ownership and control is disputed. 1. This evidence is admissible under FRE 401 and 402. it will be admissible. Linda says: “Whoever screws up. Problem 2-G—“My Insurance Will Cover it!” There is a two car accident between Linda and Myra.” However the attorney for the P knows the witness is a claims manager for the same auto insurance company for which the D is insured. her insurance pays. 3. but not under FRE 411. We do the balancing test of FRE 403. • Probative Value: showing she was the proximate cause of the accident • Unfairly prejudicial use of it: the fact she has insurance cannot be used to show she was negligent. After the accident. Is this “admission” relevant and material? Yes.
but there may be situations where the court will be required to do it on its own motion. evidence of the subsequent measures is not admissible to prove negligence. SUBSEQUENT REMEDIAL MEASURES (i. culpable conduct. a defect in a product. • Confusion of the issues: concerns over confusion of the issues arise partly because of the relevancy problem and partly because it may be impossible to show that the changes that follow an accident were made because of the accident. • Feasibility: to show the feasibility of a precautionary measure when feasibility is controverted (i. or impeachment. • Remedial measures can be proved for purposes other than establishing negligence. • Relevancy: concerns over relevancy arise because efforts to prevent future accidents may not show that past practices amounted to negligence or fault. agency.e. Reasons for this Rule: • Public Policy: We want to encourage D’s to make repairs after an accident and to make conditions safer than what they were at the time of the accident. a defect in a product's design. the court should give a limiting instruction to the jury explaining what they should do with this evidence. control. 6. or feasibility of precautionary measures.who are responsible and not force them to pay for something just because they have the money.e. after an injury or harm allegedly caused by an event. What would not Evidence Outline Page 16 . such as proving ownership. In the interest of public safety we will not use it against you. In admitting this evidence.” Note. The statement of insurance just happens to be inseparable from the admission. measures are taken that. that applying FRE 105 is upon request from a party. if taken previously. The jury should not consider the ability to pay. would have made the injury or harm less likely to occur. or a need for a warning or instruction.: when D’s deny feasibility). (FRE 105. So we tell the D go ahead and make the subsequent remedial measure. 5. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose. The instruction language could be: “You should decide this case without making any assumptions about insurance. FRE 106) This will further avoid the possibility of unfair prejudice. such as proving ownership.: subsequent repairs): FRE 407—Subsequent Remedial Measures When. Exceptions to Subsequent Remedial Measures: • To show ownership and control when ownership and control is disputed: showing someone was taking subsequent actions to repair something tends to show they are in control of the building. rather it is the party’s admission of liability that is being used. etc. 2. it is not the statement of insurance that is being used to prove negligence. It is key to note here. if controverted.
If the defendant has taken a remedial measure that shows that the practice is feasible. The P will often classify this as putting feasibility into issue.when (1) a defendant contends that the design or practice complained of was chosen because of its perceived comparative advantage over the alternative design or practice or (2) when the defendant merely asserts that the instructions or warnings given with a product were acceptable or adequate and does not suggest that additional or different instructions or warnings could not have been given or (3) when the defendant urges that the alternative would not have been effective to prevent the kind of accident that occurred. The big question becomes is it feasible OR it is feasible (possible) but not recommended—the issue arises when the D offers some other explanation for not putting the measure into effect sooner. For the feasibility exception to apply.• have been admissible as part of the plaintiff’s case in chief becomes admissible because feasibility was controverted by the D. Evidence Outline Page 17 . o Feasible AND Controverted (the broad view) Courts announcing a more broad view have concluded that "feasible" means more than that which is merely possible. but includes that which is capable of being utilized successfully. Note: D’s are often willing to stipulate to feasibility in order to avoid having subsequent remedial evidence admitted. two questions are required: (1) what is meant be feasibility? and (2) is the feasibility controverted? (See Truer) There are several schools of thought on how feasibility can be interpreted: broad (when you are the offering party and want the exception to be applied) or narrow (when you are the objecting party and don’t want the exception to be applied) o Narrow: disallowing evidence of subsequent remedial measures under the feasibility exception unless the defendant contends the measures were not physically.Proof of a remedial measure may be admitted where a defendant has argued that a certain practice was impossible under the circumstances (scientifically. o Broad: a broader spectrum of motives and explanations for not having adopted the remedial measure earlier. Impeachment: almost any testimony given by defense witnesses could be contradicted by way of a subsequent remedial measure. or economically possible under the circumstances the pertaining. technologically. then that action may come in to prove feasibility. or economically). It all comes down to a judgment call. More on Feasibility. (ex: the cost is too high for this measure to have been adopted earlier) Controverting feasibility: o Feasibility NOT Controverted (the narrow view) Courts in the narrow view have concluded that feasibility is not controverted -and thus subsequent remedial evidence is not admissible under the Rule.
Malavet seems to say that if the evidence is considered a subsequent remedial measure to prove negligence.e: if feasibility was controverted) or if the P’s could show the statement is impeachment. • Defendants wished to exclude any reference to the change in protocol under Maryland Rule 5407 (same as rule 407) because it was a subsequent remedial measure. Plaintiff countered that: (a) the change was not a remedial measure because the defense claimed the prior protocol was correct. “Given my medical knowledge and experience. In other words. then a subsequent remedial measure can be seen as contradicting that testimony. and answers in the affirmative. • A plaintiff cannot impeach a defendant with evidence of a remedial measure for a broad assertion like the defendant claiming they were not negligent. the doctor is saying. like “I couldn’t have possibly made it any safer” or “that would have not helped and only been a nuisance” evidence of a remedial measure may be admitted if it tends to impeach such an assertion.More on Impeachment. at the time prior to Mr. but ruled that it would admit the proof if defendants denied feasibility (i." • The trial court rejected the first argument (saying that defendants did not have to admit wrongdoing in order to claim that a change was remedial). • If a D is asked on cross examination whether he thinks he had taken all reasonable safety precautions. • Plaintiff got Dr.” Evidence Outline Page 18 . then it is not admitted at the 401 stage (we don’t even go to the 403 stage). McDonald to say that restarting Heprin would have been unsafe. Turer’s death. and (b) they are entitled to prove the change in protocol to show that continuing Heparin was "feasible. FRE 407 is designed so that remedial measures are excluded so that these hypothesizes can’t be used. However. the hospital changed its protocol for injecting Heprin. I considered it unsafe to restart Heprin. most courts would not allow this admissible for impeachment “if it is offered for simple contradiction of a defense witness’ testimony. • Relevance of a Remedial Measure (Evidential Hypothesis for P): You changed your protocol and that is an admission that your old protocol was wrong. However where a defendant makes a more narrow assertion.” • Methods of Impeachment: o Bias/corruption o Mistake/capacity o Bad character o Inconsistent statements o Contradiction Tuer v. After the deceased died.has created some of the same practical and interpretive problems presented by the exception for establishing feasibility. and apparently because the deceased died. The deceased died as a result of being taken off of the Heprin. McDonald (Malavet thinks this case is very well written for an exam!) There was a medical malpractice claim. (In other words.
Therefore the feasibility exception does not apply. or that the defendant was using due care at the time of the accident.” o The court said here “at the time of the event. o Another statement that would have constituted impeachment: “I could not do anything different today. it was just not advisable to use. because we are dealing with human life. or enforcement authority. merely said in my judgment. or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim . except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory.) 3.” • Simple contradiction of testimony that does not get to the meat of the matter will also not satisfy this exception. This is not a denying he did not take every reasonable precaution. we do not move on to the other rules like FRE 403. if the Dr. would have made a blanket denial. or amount of a claim that was disputed as to validity or amount. It was merely his judgment call. Offers to settle and conduct or statements made Evidence Outline Page 19 . he was not denying feasibility. invalidity of. Examples of permissible purposes include proving a witness's bias or prejudice . • Settlements are not admissible as any kind of indication of fault or liability or damage. The court constitutes the statement as meaning the Heprin was feasible. negating a contention of undue delay.• • • Feasibility Issue: The court said that in the context of the Dr’s statements.) Impeachment Issue: Court says you need substantial impeachment. said “he used the best combination of safety and operation yet devised” this would also have opened up the door for use of the exception. o If the Dr. the measure was not believed to be as practical as the one employed. investigative. that might have opened the door to the exception. (Court in Pruer chooses the narrow view. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Because the court rules the change in measures was not admissible (it did not meet the 3 exceptions. it would have been unsafe.—Evidence of the following is not admissible on behalf of any party. The Dr. and (2) conduct or statements made in compromise negotiations regarding the claim. The contradiction of the testimony has to be substantive—meaning it is substantially related to the facts and resolution of the case. Also. and proving an effort to obstruct a criminal investigation or prosecution. when offered to prove liability for. SETTLEMENTS: FRE 408—Compromise and Offers to Compromise (a) Prohibited uses. Permitted uses.
You have to sue me. when offered to prove liability is not admissible.Perrin. The yield that year is about half the typical yield and when Perrin tells Sosbee the first time he says. “Don’t worry. and we’ll bill Cheron [the manufacturer of the herbicide].” Later. but the admission will be admissible. an admission of fact that is made as part of an offer to pay these expenses is admissible. buys a herbicide from Sosbee for his crops. • There must be a dispute about liability or amount. Exceptions to Settlements: • There must be a claim: The facts have to have matured enough so that there is someone who can be identified as a claimant. • An offer to pay hospital or medical expenses is not admissible: This is because the rule assumes I may be motivated by humanitarian motives.: is this an attempt to settle)? Answer: There has to be a claim which is disputed for this rule to apply. I will admit my client was negligent. If a party has filed a claim in court. The herbicide ended up not being very good. Let’s settle.000 but I am not going to pay you. we’ll take care of you.” This cannot be used. he told Perrin again “my yield isn’t half what if was last year” and Sosbee replies “You just tell us the damages you’re claiming.” I admitted liability and full amount. This could be used against me because there is no dispute as to liability or amount.” Can this be used against Cheron? Do these statements fall under rule 408 (i. Also. In other words. the offer to pay the medical expenses will not be admitted. Ex: I say “let’s settle. there has to be a Evidence Outline Page 20 . Ex: “I will admit that I owe you $10. so a party to a settlement negotiation should be careful about taking the stand Civil Cases Problem 5-P “Two Potato. Ex: If I tell my neighbor “I think my dog bit you. a potato farmer. Courts want to encourage settlements—this encourages the parties to be frank and open in settlement negotiations.e. There can be no compromise if there is no claim. However. One Potato”.” This could be used against me in litigation because there was no claim. “my potato plants don’t look as healthy as they should” and Sosbee replies. Malavet says statements offered to pay medical expense are excludable if such contents are trying to settle the case.• • during settlement negotiations. Ex: If I admit to doing it and then offer to pay the medical expenses. there is no question that you have a claim that is being disputed. on another occasion. But right when the damage/accident takes place you might not have a dispute. this rule only applies to exclusion of material generated for the purpose of aiding in the settlement. (FRE 409) • Impeachment: Statement can be used for other purposes such as impeachment (or bias or prejudice). Statements/Evidence that come into court that are independent of the settlement process cannot be bathed in immunity by being turned over or mentioned during settlement.
If D calls Passenger as a witness. investigative. and therefore is not a negotiation protected by the privilege. can P cross examine him about the settlement? Answer: No. It is important to note. this cannot be hearsay because this is an oral assertion admitting liability. The prohibition does apply here. There is a possible exception however—To show the bias of passenger in testifying for the defendant 408(d). causing injuries. • Under FRE 403. it would be more likely the attorneys would do all the taking using hypothetical terms. evidence of the following is not. • In this case we are assuming this instance is not an attempt at compromise. a settlement negotiation between a criminal and the state which involves payment in exchange for dropping criminal charges is not excludable under this rule because it is seen as an obstruction of justice. Another Civil Case Hypo: While driving a car Plaintiff and Passenger are struck by a car driven by D. That concern is just not prevalent here. so as not to incriminate the defendant in future proceedings. or enforcement authority can be used in a criminal case. Plea Discussions. (2) a plea of nolo contendere. its subsequent admission in a criminal case should be expected. Criminal Cases Civil Settlement negotiations in the criminal context. statements in civil settlement negotiations by a public office or agency in the exercise of its regulatory. Offering or accepting a compromise in a civil case is not very probative of the defendant’s guilt in a later criminal case. These statements were too early for this rule to kick in. Evidence Outline Page 21 .conflict as to the validity or amount. • However. • Remember the policy behind this rule: we are only concerned about the potential of thwarting settlement negotiations. Plea Bargaining Rule 410. (think Miranda Rights) • Therefore. this could be classified as a negotiation in which case it would be barred from admissibility. and Related Statements Except as otherwise provided in this rule. in any civil or criminal proceeding. it seems under this rule. • On a side note. • When someone makes a statement in the presence of government agents. • Hence. the use of civil settlements to prove liability or invalidity or the amount of a disputed claim is also blocked in criminal proceedings. These statements do not dispute validity or amount. Passenger and D settle but P proceeds to trial. Inadmissibility of Pleas. admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn.
Problem 5-R “I Used His Stuff” Rackley is charged with passing counterfeit bills. At trial the DA tries to admit Rackley’s statement. Evidence Outline Page 22 .” Confession or Plea Bargaining? • The ACN tells us FRE 410 statements to law enforcement agents are not necessarily inevitably admissible. Eventually. In defining exactly which statements are covered. but the D objects claiming these statements were made during a plea bargain. plea bargaining statements and pleas of guilty or no contest are not admissible at trial [See FRE 410]. Rule 410(4) excludes “Any Statement made in the course of plea discussions with a Prosecuting attorney which do not result in a guilty plea.(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas. then any statements made during these negotiations are not admissible at trial. such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it. • FRE 410(3) excludes D’s statements to law enforcement agents if (a) the agent has actual authority to bargain and is doing so. • Objective Reasonableness Standard under FRE 410: (1) whether the defendant exhibited an actual subjective expectation to negotiate a plea and (2) whether that exception was reasonable given the totality of the objective circumstances. • There has to be some sort of waiver of rights for a statement to be admissible. His Attorney sets up a meeting with the DA. The DA and two secret service agents meet the D and his attorney (first meeting) but no plea bargaining occurs because the DA hasn’t had time to review the case. Answer: FRE 410(4) implies that the absence of the DA disposes of the defense argument: The Rule simply does not reach what Rackly told the agents. Rackley and his attorney draw up a implicating Rackley’s guilt. • Again for reasons of judicial economy. or (b) defendant thinks bargaining is occurring and his belief is reasonable under the circumstances. or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath. • Most courts state that if a plea bargaining fails. However. on the record and in the presence of counsel. the “plea bargain” falls through. Rackley’s attorney then calls the DA’s office and sets up another meeting. They meet again but only the secret service agents show up. particularly if agents purport to have authority to bargain. or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
If the plea failed the K was not agreed to. Was this a confession or plea bargaining? Answer: FRE 410(4) appears not to contemplate bargaining for a third person. First. Bragen and Roberts. are busted with a meth lab in their basement. therefore the privilege applies and has not been waived. it is very unlikely a court would find there was plea bargaining taking place here. or 2) they were trying to make a deal that would take care of everyone.e. or (b) defendant thinks bargaining is occurring and his belief is reasonable under the circumstances. but instead was a decision by D’s counsel to take some action in the hope of including leniency by the government. defendants were trying to make a bargain for the third party but did not enter a plea. • Rackley can also argue that he thought the bargaining was going on because he had his lawyer with him and the agents were there and therefore the belief was reasonable.Remember. In this instance. The agents made no offer of any deal with Rakley and they were not relaying a prosecution offer. 2) Taking the second view. The action taken by the D’s was in no way a prescheduled continuation of the first meeting. • But the problem is that the DA disclaimed any interest in bargaining in the first meeting and did not even show up for the second meeting. 1) Taking the first view. releasing the women gave defendants what they wanted.: their confession)—this evidence is usable against the defendants. we will confess (in effect. The agents release the wives and then at trial admit the incriminating statements. • Rackley attempts to get around the fact that no attorney was present for the government at the time of the admissions by putting forth a theory of “ongoing negotiations. you have engaged in a waiver of the privilege under the rules). Rackley can advance both of these arguments. Problem 5-S “Just Keep Them out of It” Two men. However. statements to law enforcement agents "are not necessarily inevitably admissible. FRE 410(3) excludes D’s statements to law enforcement agents if (a) the agent has actual authority to bargain and is doing so. and the government should get something in return (i. • Rackley was never told by the Secret Service Agent that they had the authority to plea bargain. Their wives are arrested also. Also there was an alternative purpose for the meetings: gathering information and usable evidence. so the attempt to a plea failed. Here. though he will probably lose. In exchange for letting the women go." • Remember. the government released the women because Evidence Outline Page 23 . and the situation is ambiguous enough to be categorized in conflicting ways: Either 1) the two men in effect confessed because they did not want to drag down the women. They are interrogated with counsel in a Federal building and both men make incriminating statements and plead for the agents to let their wives go because the women had nothing to do with it. he can argue the agents have actual authority to bargain because the second meeting continued the first meeting.” • Rackley’s attorney independently initiated the meeting with the agents.
during interruption of the D’s case-inchief. prosecutors are making you sign a waiver waiving the inadmissibility of plea bargaining before the agreement is entered in to) Conclusion: We think that the two characterizations are almost equally plausible: The presence of the lawyers (prosecutor Kendall and counsel for each defendant) suggests that all parties were interested in a deal. You would allow a misleading piece of evidence to go un-countered (and un- Evidence Outline Page 24 . so the ensuing talk was plea bargaining. Problem 2-H—“Power Rollback Caused the Crash—The Air Crash Case” While serving as a Navy flight instructor. Rainey is complaining that the D cannot just selectively choose which parts of the letter he wants to talk about. But the presence of the agents. Erin died in a training session. The D said we never asked about these comments and therefore it is beyond the scope of direct. counsel for plane company calls P as an adverse witness and asks him about several comments that were made in a letter that P wrote.” During the D’s case-inchief. than anything in that letter is fair game. Ranney wrote a letter to his commander saying that the “Rollback caused the crash. Answer: Does the part of P’s letter not mentioned on cross shed important light on the issue? YES! FRE 106: The common-law rule of completeness was designed to prevent exactly the type of prejudice of which Rainey complains.it was convinced of their innocence. They never reached an agreement and the waiver has not been completed. or during the case in rebuttal. WRITINGS RECORDED STATEMENTS AND FRE 106—Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party. • You must be focused on the accused’s perceptions of the discussion (did they believe it was a plea or a confession? • A court must apply a two-tiered analysis and determine (1) whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion and (2) whether the accused expectation was reasonable given the totality of the circumstances. Her husband (Jim Ranney) sued the plane company. V. If you are going to admit the letter. an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. This rule can be used during cross. • • If you admit a writing or recorded instrument at the other party can make reference to any other part of that writing or recorded statement. and is not entitled to any "quid pro quo" for doing what it ought to do on making such a discovery. (Because of this. and the fact that they obtained a written waiver from the women points toward the fact that the men confessed and waived there right to exclude it from evidence. (Note the hearsay issue here) Comments in the letter contradicted the P’s theory of the crash which he testified to..
the prosecution in a criminal case shall provide reasonable notice in advance of trial. evidence of a pertinent trait of character offered by an accused.Evidence of the character of a witness. Exceptions. or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2). preparation. plan. Evidence Outline Page 25 . (b) Other crimes. CHARACTER EVIDENCE AND RELEVANCE FRE 404—Character Evidence Not Admissible To Prove Conduct. evidence of the same trait of character of the accused offered by the prosecution. identity. or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. or by the prosecution to rebut the same. evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused. such as proof of motive. or acts is not admissible to prove the character of a person in order to show action in conformity therewith. (2) Character of alleged victim . (3) Character of witness . wrongs. of the general nature of any such evidence it intends to introduce at trial. or during trial if the court excuses pretrial notice on good cause shown. however. 608.In a criminal case. wrongs. be admissible for other purposes. (Malavet says he always tests on this issue. as provided in rules 607. or absence of mistake or accident. or acts Evidence of other crimes. intent. • Character as circumstantial evidence to infer conduct at the time of the litigated event: the character is not itself a material evidence of the case. It may. provided that upon request by the accused. and subject to the limitations imposed by Rule 412.) VI. Other Crimes (a) Character evidence generally Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. o Cannot be used in civil cases. or by the prosecution to rebut the same.In a criminal case. but you want to use this evidence as way to infer how this party acted at the time of the event.countered at that time) and this is unfair. except: (1) Character of accused . Four preliminary questions 1. For what purpose do you seek to prove character? (What is the relevance?) Any one of three purposes can be used: • Because the character of a witness itself relates to a material issue in the case (specific element of the crime) o There are limited times this occurs in the civil context. and 609. but there are times this can be used in criminal cases. opportunity. and it NEVER happens in criminal contexts—the book came up with one example. knowledge.
• Character to impeach the credibility of a witness (used when D is a witness—this is discussed in impeachment) Any one of these purposes cannot be used: • Bad person inference (he is a bad person and therefore likely committed this crime) • Action in conformity therewith (he did it before. This depends on the nature of the case.Allowed by defense and by Prosecution to rebut (FRE 803 has a hearsay exception for reputation evidence). (b) Specific instances of conduct. but sharply restrict evidence of specific instances. This trait must be substantively at issue in the case. claim (civil). or defense [Rule 405(b)] or Evidence Outline Page 26 . or defense. On cross-examination. only reputation was allowed for the purpose of proving character as circumstantial evidence of conduct on a particular occasion.Allowed by defense and by Prosecution to rebut. In cases in which character or a trait of character of a person is an essential element of a charge. Prior Specific Acts. What method/technique can you use to prove character? 3 possibilities: • Specific Acts of conduct • Opinion Testimony • Reputation Evidence 3. • If it is a larceny case— the trait would be honesty/dishonesty • If it is an assault case—the trait would be peacefulness/violence • If it is a perjury case—the trait would be truthfulness or the lack of it. Reputation.Can only be used o where character or a trait of character is an “essential element” of a charge (criminal). inquiry is allowable into relevant specific instances of conduct. proof may also be made of specific instances of that person's conduct. In all cases in which evidence of character or a trait of character of a person is admissible. claim. proof may be made by testimony as to reputation or by testimony in the form of an opinion. What kind of case is it? • Civil • Criminal 4. Character for what trait? (pertinent character trait) There is no such thing as “general character.” There must be some specific pertinent trait or character. FRE 405—Methods of Proving Character (a) Reputation or opinion. • • • • • FRE authorize both reputation and opinion evidence. and therefore he is likely to have done it this time) 2. Under the old common law. Opinion.
Most of the time. opportunity. therefore. • Character is admissible in a civil case if it is a material issue in the case. Basic Rule: no “bad character” evidence at the initiative of the prosecution if the purpose is to show criminal disposition unless and until the D first opens the door. FRE 609) Character of Defendant in Civil Cases Generally there is no character evidence allowed in civil cases. This situation is rare. intent. there are circumstances where it can be admitted as circumstantial evidence to infer conduct. FRE 608. • A defendant can put forth evidence of a “pertinent character trait. and the company should have known it).e. If the character of a witness is itself directly a material issue in the case than you need to be able to show it. in other words and it is not allowed in a civil case.: showing bad things about his character showing he would likely commit a crime like this) (See FRE 404(a)(1)). lack of mistake. always first make reference to FRE 404(a) and 405! Then you may move on to other rules! (such as the impeachment rules FRE 607. However. there does not need to be a charge or a conviction. There are situations when this happens: (1) defamation when truth is a defense (2) negligent entrustment (bus co. and (3) wrongful death (if husband was a horrible husband. Evidence Outline Page 27 .e. identity. hired “the town drunk” as their bus driver.” (i. etc. Also. • The one exception to this: sexual assault and child molestation cases. This can be part of the P’s case in chief.: showing good things about his character showing he would not commit a crime like this) but in doing so he opens the door to rebuttal evidence concerning the same trait by the prosecution (i. he probably did it this time—it is still allowed. Although this is disposition evidence—he did it before. [Rule 404(b)] (See Examples Below) o On Cross-Examination of a character witness [Rule 405(a)] (See Example Below) Note. Here “being a good parent” is an essential issue in the case. plan. this is almost never used to prove a material element of the crime. It is disposition evidence.) Character of Defendant in Criminal Cases Again. The D need not open any doors. the fact that he is dead may make wife better off and she won’t get much money) (4) child custody (parental fitness of mother and father is assessed in order to serve the best interest of the child.o MIMIC Rule: to show motive. • There is no character as circumstantial evidence to infer conduct in a civil case. evidence in civil cases is offered for the purpose of showing circumstantial evidence to infer conduct in a civil case. FRE allows the D’s prior acts of sexual assault or child molestation to be shown by P. in character questions.
who says D is a violent person.) • A defendant cannot be acquitted based solely on character evidence. while those that don’t bear directly on the crime. she claimed the clothes were hers. Problem 5-E “She’s a known Thief” Gretta is charged with shoplifting. It is important to Evidence Outline Page 28 . Prosecution calls Coach Jones.The Eleventh Circuit has said that you can create reasonable doubt through the use of character evidence. • Jury Instruction. as it stands. but under FRE 404(a) the first sentence bars this and none of the three listed exceptions apply.e. (not admissible 404(a)) Bad Person: she is a bad person and is therefore likely to steal. or that are too general (i. How the evidence would become admissible: If Gretta got on the stand and made a comment about her character. Some courts have held that a jury should be told not to base their decision solely on character evidence. This is forbidden by the first sentence of 404(a) because of AICT. there is no exception that applies. and to view character evidence along with other evidence.” (Reputation) P also wants to offer evidence that Gretta had been convicted of shoplifting at other stores 4 other times. or that character does not excuse a crime. (not admissible 404(a)) Also. (FRE 104(b)). Answer: This would be relevant (because it makes it less likely that he is the initiator of the violence). defendant is a “good person” or “law abiding”) are not. (ex: if someone robs you. than the Prosecution could contradict her testimony with character evidence related to specific facts. Answer: This would be relevant (because it can help the finder of fact determine who the aggressor of the fight was).traits that bear on the specific charge usually are considered pertinent. He claims self-defense. this has nothing to do with whether they are an honest person or not. but the Judge has to decide whether a there is a legitimate purpose to admit the evidence. • Relevance: Possible evidentiary hypothesizes: AICT: she has stolen before and therefore she is likely to do it again. The P (during its case in chief) wants to offer a witness to testify that “Gretta is a known thief—she had a reputation of being a thief. but they can create reasonable doubt based on the character evidence. but it fits into one of the exceptions under 404(a)(1). She pleaded the same defense at trial. therefore it is not admissible.Definition of Pertinent Character Trait (FRE 404(a)(1)). • It is important to distinguish the difference between a character trait and a pertinent character trait. Problem 5-A “Fight in the Red Dog Saloon” Facts: Defendant is accused of assault against victim in a bar fight. (We prohibit its use because of the AICT argument) Facts: D is going to call Reverend Graham to say he is peaceful. Upon getting caught. (Specific Instances of Conduct) Answer (going through the forest) • Preliminary: Whether Gretta shoplifted will be determined by the jury.
if D presents an eyewitness that testifies the victim struck him first (this is non-character evidence) than the prosecution can introduce character evidence tending to show the trait of Victim’s “peacefulness. in rebuttal. Answer: This is relevant because it makes it more probable that Don started the fight and Vince acted in self defense. • Self-Defense Homicide Exception to Character and NON-character evidence (404(a)(2)(c). fight-picking fellow. But it fits into the exception in 404(a)(2). not only is the door opened to rebut this character evidence.” The Prosecution objects for irrelevance and barred by the character evidence exception. (See FRE 404(a)(2)) • Character of Victim Opens Door for Character of Defendant-If the D attacks the character of a victim. Because Defendant is claiming self defense. Character Evidence of Crime Victim If the victim’s character is relevant to a defense by the D. if the accused attacks the victim. Furthermore.e. the defense has now opened the door to the prosecution attacking his character in their case-in-rebuttal. • If the accused in offers character evidence about the victim. He can only prove this trait through reputation or opinion testimony (FRE 405(a)).note. (i. the prosecution can rebut this evidence concerning the victim. • FRE 404(a)(1)(2): If as a defense lawyer. (Because we would be applying 404(a)(2)(b) and not 404(a)(2)(c).: is a pertinent character trait) then the D can take the initiative to show the bad character of the victim in order to help the defense. because the victim’s “aggressiveness” is not an “essential element” of the ‘self-defense’ defense. even if the defense has not approached the issue of defendant’s character [See FRE 404(a)(1)]. aggressive. may a party inquire into specific instances of conduct. • The offering party only can offer opinion and reputation to support their evidentiary hypothesis concerning the victim. the prosecution is allowed to rebut that with character evidence. but it also opens the door to evidence of the same trait in the defendant. Ernie’s statements do show a “pertinent trait” that he should be allowed to prove. Only on counter. For instance. you offer evidence of your own client’s peaceful traits. then the prosecutor can rebut that same character trait in the client. P’s character evidence about V’s peacefulness would not be admissible.Where a defendant is charged with homicide and has introduced evidence (including non-character evidence) that the crime was committed in self-defense. however.) Problem 5-B “Red Dog Saloon-Part II” Facts: Now Defendant offers testimony of Ernie who says that the victim is “belligerent. Ex: In D’s murder trial. the P could now call Coach Jones and offer his testimony. If D’s witness offered this testimony in a battery case. this only applies in homicide cases. then the Prosecutor can attack the accused with character evidence.” Note. (Using Opinion or Reputation) Evidence Outline Page 29 . It does run into the prohibition of FRE 404(a) because it is AICT. Note this will open the door for rebuttal by the prosecution.
the P can encounter about specific acts which may rebut the character of VICTIM when they are cross examining the witness. D’s counsel would be allowed to ask about specific bad acts of Victim if the P asked E about specific good acts regarding Victim. Coach Jones. 405(a)(2) also kicks in to allow specific acts of conduct relative to D provided that Ernie is considered to be associated with D (FRE 611 (C)(3-C) or hostile to the P (FRE 611(c)(3-A)). the P may now rehabilitate the character of the Victim and attack the character of the Defendant. should Ernie testify as described above? What kind of testimony is that? Ernie says “Victim is a belligerent. Also. Hostility towards P is not automatic.• In a homicide case. once the D admits this testimony. (404(a)(2)) • On redirect of E. • Once Ernie (the D’s witness). because it could just be that E knows V and not D. the P might ask Ernie about D’s peacefulness (or lack thereof..) Problem 5-C “Red Dog Saloon—Part III” Facts: If the judge lets Ernie testify about Victim’s character. the attack on the character of the victim opens two doors for the prosecution: (1) rehabilitating Vince’s reputation and (2) attacking Defendant’s reputation. it may take the form of "opinion" or "reputation" testimony. in order to admit this type of testimony. you can show any evidence to rehabilitate your client. but he can even attack the witness (with anything to rehabilitate the character of the victim). • For opinion. • Also note. Note: Once the D admits this testimony. The pertinent character trait would need to be likely to be displayed Evidence Outline Page 30 . Under FRE 611(b)(2). the opinion testimony by Reverend Gram.” Answer: As offered. (FRE 404(a)(1)(c)) • Using FRE 404(a)(1)(c) and FRE 611(b)(2). In other words. E could just avoid testifying about D simply by testifying that he knows V but not D. Laying the Foundation For Opinion/Reputation Testimony: It is important to determine whether the testimony is being offered as opinion or reputation because there is a different foundation that you have to lay based on whether the testimony you are offering is opinion or reputation. this would be subject to a foundation and only limited to opinion and reputation testimony. fight-picking fellow with a real short fuse. The context matters. (This allows admitting things beyond character evidence!—any attack or suggestion that a homicide victim is mean/bad/etc. the prosecutor can not only rebut to show the victim was peaceful/nice/good.) This cross examination would be allowed to occur even though technically it is direct questioning of the witness (sooner rather than later). and Ernie all squarely fit FRE 405(a). asserts that D is a peaceful guy. when the accused attacks the character trait of the victim. etc. you need to be acquainted with the person. where the basic message is that if character evidence is admissible at all. the proponent must lay a proper foundation.
the question was whether the witness knew the D had been charged with embezzlement— Would this question be allowed? Answer: The P can argue this goes to how well the witness knows the D and how qualified he is to testify to the D’s reputation. documentary) is not allowed under the language of this rule. • For reputation.e. (this is not expressed in the rules). medical records. to the pertinent character trait. (i. Violence and embezzlement are not in the same subject matter.in the given context. you have to ask the question. etc. police complaints.) called extrinsic evidence would not be admissible.” Therefore the Prosecution is allowed to ask Gram (who has already testified to the accused peacefulness) if he knows of specific acts which the accused has done which may show otherwise (i.into relevant specific instances of conduct.e: you were classmates. This is a specific act/specific incidence of conduct. Note.What Price Truth? Facts: Same fight as above. after the Reverend testifies that the defendant is peaceable. went to church together. However. because there is likely other evidence relating to the specific actions to formulate the good faith basis. the relevant community is important: in this instance the relevant community would be “drinking buddies” or neighbors.. this evidence would be so damaging that courts usually restrict them to the subject area of direct—i. • Good Faith Requirement: The lawyer must have to have a good faith basis for asking such a question. which would require them to testify that they talked with people in the community about Vince or Don. At trial. Remember rule FRE 405 only allows inquiry. **In both cases. the prosecutor asks the following question on cross-examination: “Did you know that the defendant beat his wife?” Answer: This is admissible. Asking a question for which you do not have a good faith basis is definitely unfair prejudice! (Ex of sources of good faith basis: convictions.. Evidence Outline Page 31 . therefore in order to get this in at trial. • Under FRE 405.e. FRE 405(a) allows on cross examination “inquiry. you need to show a pertinent period of time.for testimony about either Don or Vince. Maybe even coworkers or class mates (anyone who can provide testimony about the opinion or reputation about the accused). Gram and Ernie could also give reputation testimony. that should mean acquaintance with their reputations before the fight became widely reported and the charges were brought against Don.) It is possible in this case that Jones. etc.e. It has to be that your knowledge was acquired in the regular course of human operation (i.: you need to have met/ known them before the underlying facts took place. the judge may require you to show the evidence upon which your “good faith” is based not in front of the jury. You would want to show the witnesses are personally acquainted with the person whose character they are prepared to assess.) Problem 5-D. etc. etc. Here the foundation should indicate acquaintance with reputation in a pertinent period of time -. this other evidence (medical records. Anything other than that (eye witness.: that he beat his wife). What if in the hypo.) The good faith basis becomes important with specific actions. neighbors.
Scenario 4: H calls a witness that testifies that he was present and saw V use a beer bottle to almost kill 3 other bar patrons in 3 other bar room brawls (This is not permissible because it is a specific act of conduct and does not fall into one of the exceptions for the use of specific acts of conduct to show character evidence!) 5. then this is not permissible. plan. Then the P may rebut by either showing the good character of the victim or by attacking the character of the D by the use of opinion/reputation evidence.) But it has another relevant argument which would make it admissible to show the state of the mind of the accused. Scenario 5: H calls a witness that testifies like he did in scenario 4. (If this is offered to show the character of the victim for violence. Scenario 1: H is on trial and calls a witness that wants to testify V is known in the community as a violent person. P wants to call a witness that says H (the D) has a bad reputation of being a violent person. (This is permissible) 2. but the witness adds. Scenario 3: Also. The D can attack the reputation of the victim saying the victim has a reputation of being a violent person in the community. Scenario 2: In response. (This is permissible) 3. opportunity. I told H about it before the incident in this case. (one of the MIMIC exceptions when you can show a specific act of conduct) This shows H knew V almost killed 3 other people. or defense [Rule 405(b)] or • On Cross-Examination of a character witness [Rule 405(a)] (See Example Below) • MIMIC Rule: to show motive. identity. etc. By attacking the character of V. claim (civil). intent. so it was reasonable for him to be afraid for his life. Ex: 5 possible scenarios: 1. The limitations of Specific Prior Acts Remember Prior Specific Acts can only be used • where character or a trait of character is an “essential element” of a charge (criminal). This fear was reasonable because of what he had been previously told.What if D was not the D and was instead the witness? In this case the questions might be allowed. lack of mistake. Would questions concerning whether he beat his wife be admissible? Start with 404. P wants to call a witness to testify that V had a good reputation and was a peaceful person. which would only have been allowed if D testified and the prosecution had attacked him under FRE 608. BarBri Example: The D (Hector) is charged with assault or murder and claims self defense saying the victim was aggressive toward the D. the D opens the door for the P to attack the D’s character. (This is permissible even though H did not take the initiative to show his own good character.) 4. but only if G had testified to D’s truthful character. The book cites one example for criminal cases: Evidence Outline Page 32 . [Rule 404(b)] (See Examples Below) 1. or 405 then go to 607. The first major exception is where the character trait is an element of the crime—this RARELY happens. 608 and 609 (conduct as they relate to credibility).
He is only saying. the P is not trying to prove the truth of these prior acts. When the accused calls a character witness. then he should know about these prior acts.If the prosecutor does not like the answer he gets on cross-examination he cannot bring in extrinsic evidence of the specific acts like calling the actual victims of those acts as witnesses or admitting a document which proves those acts into evidence. • Extrinsic Evidence. the D’s character witness cannot give specific instances of prior acts. he can always call in his own character witness of the D to rebut what the D’s character witness had said. if the D’s witness is qualified to testify to the D’s reputation.” Note: If the witness says “No. I’ve never heard of that. they are seen as having waived protection against questions by calling a character witness in the first place. He cannot then admit documents or call other witnesses which prove the D has been charged with those other crimes. • If the P chooses not to cross-examine the D’s character witness. • See Michaelson case Jury Instructions: In instances like this. Michaelson requires the “cross examiner to demonstrate privately to the court the fact of the question they are asking. However. Ex where prior specific acts allowed on cross-examination of a character witness: D’s witness is testifying to a specific character trait of the D (such as the peacefulness of the D in an assault case.” There is nothing before you on the truth of any of these questions. because that is outside the scope of cross examination. If the D’s witness does this. he can only give opinion and reputation evidence.) In order to do this. the prosecution can cross examine that witness on specific instances from the defendant’s past that would not be admissible otherwise. this witness’s testimony would be limited to reputation and opinion testimony. it is important to give the jury instructions which clearly state these questions are “permitted only to test the standards of character evidence that these character witnesses seemed to have. • Possibility of Prejudice. The second major exception for when you can admit a D’s specific prior acts is on Cross-Examination of a character witness (FRE 405(a)).” then the P is screwed. (ex question: “Did you know D has been arrested 6 times?” OR “Have you heard of any specific act which would tarnish the reputation of the D?”) In asking these questions.“reputation for chastity” as an element of the crime of seduction and four examples for civil cases. Evidence Outline Page 33 . (See above) 2.Although the mere asking of these questions might prejudice the defendant. the P can then respond by bringing up the D’s prior specific bad acts on cross-examination of the D’s character witness testing the witnesses’ knowledge of the D’s reputation. • Logic behind the admissibility: This question is admissible only to test the witness’s knowledge of the D’s reputation. You only use them in weighing the evidence of the character witnesses. • The P cannot just make up questions to raise the stench of misconduct.
Intent. this goes to the D’s motive and it admissible. Can the P show the D’s wife went missing three years prior to this current charge? If the P is admitting this evidence to show the D killed the detective because the detective was about to arrest the D for killing his wife. Possible unfair prejudice dangers: o That the jury will use the evidence to believe that D is a bad person.3.(i. Identity. 2. The court can excuse pretrial notice if good cause is shown. • Also Remember FRE 403 still applies to the MIMIC rule!! So even though some particular prior act would be relevant to show one of these things. (FRE 403) and 4) Gives a limiting instruction on request. This shows the D knew these goods were stolen. Problem 5-E “Drug Sale or Scam” Evidence Outline Page 34 . in D’s murder case of the detective. the prosecution in a criminal case shall provide reasonable notice in advance of trial. the details of the disappearance of D’s wife would be admissible to show motive of killing the detective. the judge can still exclude it under FRE 403. To show motive: Ex: the D is charged with killing a detective.e. D claims he didn’t know the goods were stolen. Independent instances which would allow in prior acts of misconduct: 1. o That the jury will conclude a general bald inference that D acted in conformity therewith on a particular occasion. Mistake (or lack of). provided that upon request by the accused. • Also remember that MIMIC rule applies to both CIVIL and CRIMINAL cases. In this case the P could offer evidence showing the D has received stolen goods on 4 prior occasions and knew the source of the shipments. Notes Regarding FRE 404(b) • Remember. and thus deserving of conviction or a finding against them in a civil case. To show intent/state of mind: (such as knowledge): Ex: D is charged with receiving stolen goods.: a reason other than an AICT) MIMIC RULE--Motive. The third main time you can admit a D’s specific prior acts is if there is some other relevance apart from showing criminal disposition (FRE 404(b)). This is always an impermissible use. Common plan and scheme (not an exhaustive list) Four Pronged approach to the MIMIC RULE: Many courts use a four prong approach when admitting evidence under Rule 404(b) in which the judge does the following: 1) Decides whether the evidence is offered for a proper purpose (FRE 104) 2) Decides whether the evidence it is relevant for that purpose (FRE 402) 3) Decides whether its probative value is outweighed by the risk of unfair prejudice. Therefore. of the evidence to be presented.
”) They try to get in evidence of past drug dealing crimes under Rule 404(b) to show that he did intend on this occasion to sell the drugs.: “I am a thief.Recall that in Old Chief the Court held that as a matter of Federal law. and often extrinsic evidence will link one parent to the injuries). The evidence shouldn’t really be used to identify the parent as the source of injuries (but if the parent is the sole caregiver it is pretty obvious on its own.The defendant meets with an undercover cop to sell coke. not a drug dealer. but some courts have held that where intent is not an issue in controversy the evidence should be excluded under a 403 analysis (e. They arrest him and he has no Coke on him. The mom says he fell down the stairs but he has been to the hospital many times recently with similar injuries. (FRE 105) The jury should never use character evidence alone to convict someone. not a drug dealer. This holding does not extend to use of prior acts to prove intent. the judge should instruct the jury they are to use the character evidence only in a certain way.e. Stipulation.g. The Prosecution wants to admit these prior instances into court. the D is claiming he is a thief. While expert testimony by a doctor concerning the nature of the injuries may be helpful. So we don’t have to worry about the jury getting a negative impression of him. when you allow such evidence to be used. Problem 5-I “It Was an Accident” A boy is brought to the hospital with many injuries. FRE 403 analysis: • The risk of unfair prejudice is not as prevalent here because. He says he was just going to rip the guy off and not actually sell him the coke. the prosecution cannot admit evidence of a prior conviction (where the criminal conviction is an element of the current charge) if the defense offers to stipulate that the element is satisfied. To show Mistake of Lack of Mistake This is often used in child abuse cases. Jury Instruction: Generally. (i. but several prior injuries in a short period of time may be used to show that these ones were not accidental. Evidence Outline Page 35 . Answer: Relevance: • AICT: he sold drugs in the past so he is likely to have been selling them here (prohibited 404(a)(b)) • Bad Person: he is a bad guy and therefore he sells drugs (prohibited 404(a) (b)) • Hyper-specific: the evidence is being used to show intent. They probably already have one based on his own admissions. we want the jury to infer the mother has recklessly or intentionally injured the child and this was not an accident or mistake. Defendant gets nervous when he sees dust on the bills and walks out on the deal. 3. the defendant claims mistaken identity but offers to stipulate to intent if the jury finds he was the perpetrator). if there are so many similar trips to the hospital over a short period of time common sense alone would lead one to infer that the instant injuries were no accident. because the D is denying he intended to sell drugs. • Relevance hypothesis: Because the child has been in the hospital with severe injuries in the past.
Arguably. It is important to note. it should be allowed to assist the jury’s understanding of the case. These prior instances will be admissible when D is prosecuted for the 2005 killing. We are not trying to show her character. Note: Too many accidents may tend to be unfairly prejudicial because it would increase the likelihood that the jury will think the D is a “bad person. any prior conduct that connects the D to this crime is admissible. In 2000. Therefore. • Modus operandi evidence: where a defendant’s past crime or act contained sufficiently distinctive qualities that match those of the current crime. 4. H’s wife dies drowning in a bathtub. and 1994 the same thing happened to H’s wives. A says that gun is one of the things H stole when he robbed A’s house. However. Ex: if H robbed A’s house 3 years ago. Prior instances in which a person was killed in this same unusual and distinctive nature can be admitted. rather than to show his propensity for committing it. With child abuse. because H stole A’s gun. but we are trying to show that the pattern of injuries shows the “intent” or “absence of mistake” which is part of our list of excepted uses for character evidence under 404(b). The jury will decide whether this conduct was in fact abuse under 104(b). Uncharged-non-conviction bad acts are left to the jury to decide. we often allow stuff like this to be admitted out of necessity.• • • • • • • The unfair prejudice is not outweighed by the probative value. 1996. In order for this to apply. (A “trademark”) Evidence Outline Page 36 . Keys to modus operandi: o Close resemblance o Distinctive nature of prior charged misdeeds Ex: The D is charged with a crime which is distinctive and unusual in its nature. Testimony by an expert witness should not be required— It is common sense a child who has been to the hospital in one year three times is not normal. To show identity: D is claiming it was not him. Prior act must bear singular strong resemblance to the charge offense. At H’s trial for murder . P can admit D’s conviction of robbery because it tends to show that it was H who committed the murder not A. we are still very concerned about the possibility of unfair prejudice here. He is convicted and sent to prison and then released. Ex: in 2005. Two important cases for 104(a) review Bourjaily and 104(b) review Huddleston. and similarities must be sufficiently idiosyncric to permit inference of pattern.” Often in these cases there is more than one potential villain because more than one person provides care for the child. there has to be a distinctive element to the crime charged and the prior crime(s). These things happen behind closed doors and there are no witnesses usually. even if the D is one of two parents. the evidence of the past crime can come in to “link” the defendant to the crime. Then there was a murder with A’s gun. it should be enough to show the injuries happened at home.
The fact that defendant committed 8 distinctive robberies. Eyewitnesses testify that one of the men ran in hunched over. because it is all part of the same transaction/preparation. Therefore. The P would be able to show that the day before the D stole a truck if the truck was used in the bank robbery. As an attorney. In addition to the individual charges. in the morning. One of the men is identified by an eyewitness.Problem 5-G “He Came in Running All Hunched Over”: Two men are accused of robbing a bank. Should this be let in? Answer: Testimony that defendant engaged in innumerable but unspecified instances of bribery tends to tar the judge with a broad brush and put him in a disadvantage to defending. • (As to RICO): It does not matter here that the P prove any one particular bribe. but the lawyer is unable to name even one case in which this occurred. Here there is a close parallel between the charged crime and other acts.” The prosecution wants to admit testimony by a lawyer that he bribed the Judge several times over a long period of time. and the other confesses to eight other distinctively similar robberies using the same “modus operandi. • (As to extortion): The testimony will less likely be admitted to show intent to take a bribe in connection with the specific instances. specific instances do not have to be annunciated under RICO. The conduct must be very specific facts that are unique and very similar to the crime. RICO only charges people for taking bribes as part of an overall and ongoing effort to exploit the criminal court system. so it makes it likely that it was he who committed the offense. since taking numerous bribes in the single professional setting of the courthouse may not be strong enough to show intent. you need to convince the judge that this evidence is a consistent/common conduct that can link the D to the crime. he is charged under the RICO act which makes it illegal to operate an “enterprise” in interstate commerce through a “pattern” (i. for D’s activities in the aggregate indicate the plan or design.” Issue: Whether the confession of the other man is admissible. To show common plan and scheme: the D is charged with bank robbery. more than one act) of “racketeering. If this argument failed. • Reverse Modus Operandi. 5. and we know someone committed a similarly distinctive robbery here containing the same element is admissible. The fact that defendant committed 8 distinctive robberies makes it likely that he committed other similarly distinctive robberies. Problem 5-H “The Corrupt Judge” A Judge is charged with several acts of extortion for taking bribes from lawyers for ruling one way or another.e. Answer: Yes. and we know we have a similarly distinctive robbery here.A defendant can also show prior crimes or acts of a third person to show mistaken identity provided the other person’s crimes are sufficiently “signature” like to link them to the instant crime. that two men were seen arriving in separate light and dark cars. D would at least be entitled to Evidence Outline Page 37 .
Malavet thinks this is a 104(a) exercise.) • The rules do not require a preliminary finding by the court that the government must prove the prior act actually happened. Convictions verses Non-Convictions in Criminal Cases Two types of convictions: 1. a rule 105 instruction should be given on the proper use of the evidence. [404(b)] 2. Decides whether the evidence is offered for a proper purpose. 4.e. if the evidence is admitted. upon request. confession that someone has committed acts where they have not been tried. 1. [FRE 403] and 4. and cannot be used to prove bribery. 1.. FRE 403. Decides whether it is relevant for that purpose [FRE 401&402] 3. Un-charged non-conviction bad acts (such as in “it was an accident”) and 2. [FRE 105] Explanation of RELEVANCE ANALYSIS (Under Huddleston): There are in effect TWO required relevance findings. The JUDGE's finding of whether evidence fits within one of the established exceptions to the general prohibition against character evidence. Under FRE 104(b). Actual convictions Huddleston test: THE JUDGE. NOW THEN comes the balancing of the legitimate uses of prior acts evidence against those prohibited by the general character rule of 404(a) (supplemented by 405(a)) and by the specific prohibition of 404(b). • It is up to a jury to find by a preponderance of the evidence that the act actually occurred. (The judge has already decided what the permissible inferences that the jury can draw from the facts are). not guilty. Finally. Evidence Outline Page 38 . 2. i. if the evidence may be admitted you still must pass the final hurdle. How do we go about proving a non-conviction act? (such as an acquittal.a limiting instruction that the testimony is admitted only to show D operated an illegal enterprise. Gives a limiting instruction on request. etc.The prior acts must be “integral components” of an overarching or “common objective” and cannot just be unlinked acts that are similar in nature and close in time to one another. the judge must admit the relevant prior acts evidence if the government adduces enough proof so that a reasonable jury could find by a preponderance of the evidence that such acts did in fact occur. Decides whether its probative worth is outweighed by the risk of unfair prejudice. If you get this far. as to this part of the analysis was not that important to the Supreme Court. but whether the court is acting under FRE 104(a) or FRE 104(b). Common Objective. 3.
if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen. (2) Evidence offered to prove any alleged victim's sexual predisposition. or other physical evidence. Footnote 6: • In a remarkable footnote [footnote 6]. if they want. (1) In a criminal case. Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible. proof of a prior crime is relevant if the jury “can reasonably conclude: by a preponderance that “the act occurred and that defendant was the actor. (b) Exceptions. That is. Sex Offense Cases. (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. injury. you cannot talk about a victim’s sexual predisposition in order to show something like the V consented in a sexual misconduct case. the following evidence is admissible. Huddleston agreed "that the strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing. asking only whether there is sufficient evidence to enable the jury to find that the defendant committed the prior act. Huddleston is the Federal standard. • In general. reintroduce the clear-and-convincing standard? The Exception of Sexual Misconduct of a Victim: Rule 412. (2) In a civil case. require the judge to find by a preponderance of the evidence that the act actually occurred before he can admit it. evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. and (C) evidence the exclusion of which would violate the constitutional rights of the defendant." Does it follow that courts can.” Some states such as the state in Bourjaily. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. Evidence Outline Page 39 .• The judge plays a screening role.
She saw him at the luau and they left together.• RAPE SHIELD STATTUES: if the accused is charged with sexual misconduct.) FRE 412(b)(1)(B) 3. there can generally be no evidence offered to prove the alleged victim engaged in other sexual behavior or no evidence to prove sexual disposition of the alleged victim. • Sixth Amendment confrontation clause: in all criminal prosecutions.e. She goes to the clinic where she has bruises and semen within. The Sixth Amendment or FRE 404(b). and tells her friends she was raped. He claims that Leslie consented and that (3) they had sex once the previous summer. but some courts have allowed sexual history in where it shows a motive for victim alleging rape or where it shows a bias against the defendant. or injury (i. the accused shall enjoy the right…to be confronted with the witnesses against him. The prosecution objects. She said that Fred did it. o EXCEPTIONS: there are three situations where specific instances of sexual behavior may be shown: 1. Fred is charged with rape. Reasoning behind Rape shield Statutes: • To avoid embarrassing or humiliating complainants in rape cases • To encourage (avoid encouraging) victims to report sexual assaults • The conviction that judges could not be trusted wisely to exercise discretion to weed out proper from improper questioning of complainants in rape cases. hence that she did so with Fred. Past Sex Between Victim and Defendant/Prior acts of consensual sexual activity between the alleged V and the D himself. There must be an in camera closed hearing and the judge must find the probative value outweighs the value of harm or unfair prejudice to the victim or any other party. Evidence Outline Page 40 . prior sexual acts are not going to be admissible under the FRE’s unless there is a specific prohibition in FRE 412. (FRE 412) Generally. Problem 5-K. Response: a woman’s sexual disposition is irrelevant. “Ordeal of Leslie or Fred” Leslie comes home. we did it before. Explaining Physical Presence/To show a third person was the source of seaman. Constitutional Rights/If the constitutional rights of the accused require this sexual conduct evidence to be admitted. [412(b)(1)(C)] Note: FRE 403 is still in play here. The physical evidence is fairly strong. went to a lonely spot and his advances went too far.: The D says it wasn’t him who caused the injury or seaman— it was another party) FRE 412(b)(1)(A) 2. Do you let this evidence in? Evidentiary Hypothesis: Leslies’ disposition is relevant (whether proved by opinion or reputation) in suggesting that she engages in sex voluntarily. There still must be notice to the complainant in advance of trial. He also offers testimony from his friend Greg who says (1) Leslie is an easy mark/sexually active and testimony from (2) Thomas who says he had sex with her that same night. This exception is very vague. (That is. and therefore it was consensual this time. acting funny.
Rule 414. It is likely here the probative value would not outweigh the danger of harm. Reputation evidence (against victim) is only admissible if put in controversy by the victim. This is exactly what the rape shield is trying to exclude. and may be considered for its bearing on any matter to which it is relevant. In any case. (2) Probably Admissible. the exceptions apply only in the criminal context. if there is co-participation between co-workers and plaintiff’s outside the place of work (like an orgy). The Prosecutor wants to argue that she is a stripper and is therefore “sexual harassment” proof. Now we have to see if there are exceptions: • There are no exceptions in 404.) Sex Crimes Continued (Prior Offenses/Character of Defendant) Rule 413. How the civil context differs from the criminal context: Civil Cases. Evidence of Similar Crimes in Child Molestation Cases Evidence Outline Page 41 .404(b)(2) only allows evidence of victim’s sexual disposition if its probative value substantially outweighs any harm to the victim or prejudice to any party (reverse FRE 403 test). Out of work behavior known by people in work is also not relevant. Note: What about where there is a “say no. • Rule 412(b)(2) is the exceptions in civil cases. 404(a)(2) directs you to FRE 412. But if the prosecution never brings up the bruises. Note: under 403. This is an AICT and is specifically prohibited under 404a and 404b. Problem 5K “Acting Out in the Assembly Line” An employee is charging an employer with sexual harassment. Conduct outside of work (even if known by co-workers) is not going to be relevant.(1) Not admissible. Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault. • Note: out of work behavior is not relevant. Being a stripper is considered character evidence. (ex: Provocative Dressing. admit under 412(b)(1)(A). this does not have a very high probative value because just because they had sex 1 year ago does not mean she consented now. (3) Admissible. this would be relevant. evidence of the defendant's commission of another offense or offenses of sexual assault is admissible. Here we have a presumption of inadmissibility. which deal with consent more than the semen. it seems doubtful on these facts that a court would fund such proof of specific conduct with the defendant so lacking in probative worth as to warrant exclusion on that ground. Although 404(a) applies in civil and criminal cases. This presumption is rebutted only if the probative value substantially outweighs the danger of harm. Go to 404(a)(2) because it is a criminal case dealing with character of the alleged victims. May explain the semen/bruises. but mean yes”? There must be prior evidence of a conversation that illustrates that no would mean yes. Admit under 412(b)(1)(B). it is probably not admissible. D admits they had sex so it is probably more probative with respect to the bruises. But. (this brings in the prohibition scheme of 404(a) and 412).
(a) In a criminal case in which the defendant is accused of an offense of child molestation. evidence of other child molestation offenses is admissible and may be considered 3) FRE 415 – extends 413 an 414 to civil cases FRE 413 through 415 say that the evidence can be considered “for any matter to which it is relevant. evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.: the Bourjey cases) would probably use 104(a) (let the judge decide if the prior act occurred) before admitting the evidence. She says it was rape and he says she consented. may State courts do not like Huddleston (i. evidence of other sexual assault offenses is admissible and may be considered 2) FRE 414 – trials for child molestation. who will testify that he once tried to rape her and (2) a judgment of conviction against Craig from another state three years earlier for fondling and sodomizing the 13 year old daughter of the woman he was living with after they drank beer and played strip poker. (i.e. Evidence Outline Page 42 .” Therefore. Craig’s previous girlfriend. The prosecution wants to introduce (1) Laura.” However.e. and may be considered for its bearing on any matter to which it is relevant. in these cases. you may not even need to go through a FRE 403 analysis. however Malavet does not. evidence of the defendant's commission of another offense or offenses of child molestation is admissible. Rule 415. • • • • Problem 5-L “I Told Him to Stop” Craig is on trial for raping Karin. BIG HUDDLESTON DEBATE: Under Huddleston the jury should make the determination under 104(b) if there is any question as to whether the prior act occurred or was a “sexual offense. Depending on the court. we look to the points of similarity between the prior act and the current act to determine if the prior act is similar enough to be relevant. Can these two things be admitted? Answer: (1) Prior instance of conduct that did not result in conviction.) To make up for a little unfair prejudice. the judge can always instruct the jury accordingly to avoid the unfair prejudice that may occur. • FRE 413.: some courts look at FRE 413 as being automatic admissibility rules. Basic rundown: 1) FRE 413 – where a D is accused of sexual assault. 415 – invite prosecutors to prove sexual assault or child molestation by means of evidence that the D assaulted/molested others. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation. An actual conviction for a sexual offense is not necessary according to Congressional comments. 414.
) Argument against admitting the testimony: One prior “misstep” does not establish this trait. Skip 404 because we are acting under 413. Under 404(a) and (b) you would need to come up with another probative value. • Eventually. evidence of similar sex crimes is admissible. physical resistance leading to assault. and all a single act can show is something like modus operandi. Rule 413 allows me to use this for this purpose.e. • It is important to notice the very different arguments that are being used under 404 verses 413. Remember 413 is still subject to the 403 balancing. deciding whether the specific instance of conduct occurred should be left to the jury. 5. This is relevant. Points of similarity: (ways this prior act is relevant): He used alcohol to sexually molest the child and lower her inhibitions. 3.e. • The key under 413 is to find as many similarities as you can (or dissimilarities depending on which side you are on) to determine if the prior situation is similar enough to be relevant to admit. The judge must make sure the jury will not be overwhelmed by unfairly prejudiced. Most courts hold this is not an automatic admissibility rule—FRE 403 still has to be addressed. even when she says no and offers physical resistance. he is likely to do it again. (2) Specific Instance of Conduct that Resulted in Conviction. the prosecution can argue. this is what you should argue to admit the evidence: 1. The case book suggests it is possible to read 413 as automatic admissibility (i. because it is an action in conformity therewith (which is specifically prohibited). verbal refusal. However. the Court must allow the jury to determine if the prior instance is true under 104(b). Any unfair prejudice will be guarded by the judge through FRE 105. In which case. I have a legislative finding that I am allowed to do it. Under Huddleston. The judge under 104(a) only determines whether the testimony is admissible. Evidence Outline Page 43 . • A 403 balancing act still occurs. he seeks sex in a socially inappropriate manner.: not going through the 403 test). This is way broader than 404(a) and (b) standard. it would support the conclusion that Craig is by disposition prone to press for intimacy once he and his mate have started down that road. escalating advances. the P would probably win this one because under 413. because he did it before.Because this was never proven in court. In other words. under 413. Rule 403 is designed to favor admissibility 4. There is need for this evidence 2. In this case. If you were the prosecution in this case. Laura’s statements are a similar scenario to this charge so it is highly relevant under 413 and should be admissible.: initial intimacy. Under 413. he initiated in a friendly way of contact before he raped the girl. we are asserting an AICT. You could also argue there are not enough similarities for this to be admitted under FRE 413. under 404(a) and (b) this is not allowed. 106 (jury instructions.) It would seem that by believing Laura. this does not really go to modus operandi because there is not enough significant parallels to support this inference from one act. (i.
FRE 608 and 609 will be available. VII. designating a regular practice of meeting a particular kind of situation with a certain type of conduct -Constitutes non-volitional behavior (reflex. Routine Practice Evidence of the habit of a person or of the routine practice of an organization. under 609. 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. Furthermore. People hate child molesters. One more side note: the attacks on the victim of rape allowed by FRE 412 will probably not trigger FRE 404(a)(1)(C). Proof of habit must be very specific and must be regular and almost automatic behavior. Although sexual assault itself is not a crime involving false statements. Habit. regular) -Specific situations and particular kinds of situations Habit or not Habit? • The wearing of seatbelt: habit • Previous Speeding tickets: non habit (specific instances of conduct— character) Evidence Outline Page 44 . Side Note: because the D intends to testify. whether corroborated or not and regardless of the presence of eyewitnesses. In this case there is a real risk of prejudice. semi-automatic. or carefulness. Even under these rules. • Rule 406 broadly states that habit of a person or routine of an organization is relevant to prove conduct in conformity on a particular occasion. no mention of the underlying facts would be allowed. Therefore. those facts could be well developed for the jury. HABIT AND ROUTINE PRACTICE Rule 406. Habit -Is more specific. this probably has less probative value and a higher risk of prejudice. The assault against Laura is more likely to be admitted than this is. yet under 404 and 413. the conviction is still probably going to be weighed by the unfair prejudice. temperance. -Character is more general (a tendency applicable to the varying situations of life) -Involves moral overtones that are not part of our habit.Defense Counsel should try and argue the unfair prejudice far outweighs the probative value. Habit is relevant to prove that the conduct of person on a particular occasion was in conformity with the habit or routine practice. the circumstances may support such a finding for 608(b) or 609(a)(2) purposes. The rule states that regardless of the presence of eyewitness or other corroboration of the evidence is unnecessary. The guy is a child molester. • • Difference Between Character and Habit: Character -Evidence is a generalized description in respect to a general character trait such as honesty.
and that Teel “always uses a signal when turning” that would be habit because it is more specific. Thus it qualifies as habit under 406. • In this case. it will not be admissible. • It is important the testimony shows more than a general disposition to be careful. They want to introduce testimony by Newsome. If he had testified that the driver travels Route 46 everyday. He sues the Freon manufacturer.: that he heated up the can past 130 degrees). a fellow worker. • Alternative Argument: You could potentially classify this as character evidence under 405(a)—an eyewitness opinion classifying specific instances of conduct. that they regularly drive with him. Regularity Problem 5-N “The Exploding Can” A mechanic (Halleck) was trying to heat up a can with water and Freon in it with a heating coil and the can exploded. • Questions to ask to establish a habit: o How long have you worked together? o How many times have you observed him install Freon systems? • Judges.e. that says “I’ve often seen Halleck use a coil to heat water” and thus to heat cans of Freon. Evidenec of carefulness or carelessness is not considered habit. at lease semi-automatic. Teal is dead. If it is character evidence. Evidence Outline Page 45 . The Plaintiff (Teel’s estate) wants to introduce testimony that Teel was “always a good and safe driver. • Proof of a deliberate repetitive act by one in complete control of the circumstances should be admissible because it is highly probative.” • This is not habit because it is too general a type of behavior (it is more like character evidence than habit). under 104(b) determine whether a foundation has been laid to establish habit or routine practice and determine if it is reasonable to classify the conduct as habit or routine practice rather than character evidence. However is “often” enough to show habit? The answer will turn on how many times Newsome saw Halleck use the coil. • Newsome’s testimony describes behavior that is specific and if not sub conscious.• 37 counts of drunken aggressive behavior: non habit (violent when angry— character) Particularized Behavior Problem 5-M “Death on the Highway” Teel and Finney got in a car accident in which both parties died and there were no witnesses. The manufacturer says he ignored warning labels on the can (i. we are not too concerned with the unfair prejudice because Mr. but it must show a regular practice of meeting a particular kind of situation with a specific type of conduct. • When does something go out of the realm of 404(b) and into the realm of 406? There needs to me enough to establish a mode of behavior that has become nearly or completely involuntary. The police report indicated that the accident could only have occurred where one of the parties was at fault.
(b) Declarant. the officer seems to fall below a reasonable minimum. if it is intended by the person as an assertion.Practices of an organization/Habit of an organization Problem 5-O “Was He Served?” Manuel is charged will illegal entry after previous deportation. you still need to establish facts that show a pattern of company habit. or at least one who has observed warrants being served. The officer has never executed such a warrant but has been told this is how it works from one of his detention officers. meaning he has seen people or machines performing their functions and understands the underlying purposes and relationships. At trial. Evidence Outline Page 46 . It generally suffices when a party offers business records under FRE 803(6). A "declarant" is a person who makes a statement. • But the officer apparently has not observed service of the sort of papers involved here. Definitions The following definitions apply under this article: (a) Statement. This is as long as he has observed it firsthand and understands how it works. • However. (c) Hearsay. HEARSAY I. If he had some firsthand corroborative information. HEARSAY IN GENERAL Rule 801. the actual court thought it was sufficient that the agent had extensive experience in “the normal rule of things and the normal processes of deportation and was thus familiar with the procedure. If he has heard "what goes on" from several people in a position to know and has corroborative firsthand knowledge about organizational practices. The government should produce a witness who serves warrants to describe how it is done. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person. • On these facts. then he would be an adequate witness. government calls an INS officer to describe the procedures of what happens in the ordinary course of deportation procedures claiming part of the procedure is to hand the immigrant a copy of the warrant.” • Remember. Therefore the situation is troubling. circumstantial knowledge might be all right. the government must prove Manuel was served with the warrant of deportation. As part of proof. Answer: • A person who does not himself follow the routine has the necessary knowledge to testify to habit.
other than one made by the declarant while testifying at the trial or hearing. memory. are superior methods than the alternative (allowing the completely uninterrogated statement. • Definitions: o Declarant= the one who makes the out of court statement o Witness=The one who hears it who comes into court to report what the declarant said. inflection. offered in evidence to prove the truth of the matter asserted. • • • • Why exclude hearsay? • Absence of cross examination • Absence of demeanor evidence (the jury cannot see how the declalarant reacts—the jury misses clues. 402) Evidence Outline Page 47 . Hearsay is not admissible unless it fits an exception or exclusion Whether something is hearsay or not depends on the purpose for which it is being offered. impression. Excluding hearsay is a superior kind of truth seeking content—better than the alternative: Although excluding hearsay does not ensure the truth."Hearsay" is a statement. Rule 802. Is the offered evidence relevant? (FRE 401. expression and appearance to convey) • Absence of the oath • There is a clear preference for live testimony over out of court statements Why • • • • do we distrust hearsay? Risk of Faulty Memory Risk of Misperception Risk of Ambiguity or Faulty Narration Risk of Distortion Forest for Hearsay: 1. The opponent cannot be denied the opportunity to cross-examine the person who said the statement. unviewed testimony and not underoath testimony). excluding hearsay and forcing a live witness in front of the jury. and sincerity is really important. o Writing= Declarant’s own writing to report on what the declarant wrote earlier. Hearsay Rule Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. Rationale/policy behind the hearsay rule: we exclude hearsay because it denies to the opponent the opportunity to cross examine the one whose perception.
and the time this bank was robbed. Problem 3-A “Three See A Robbery” 1. 4.: that Higgens committed the crime) and therefore is hearsay. even though his words don’t necessarily say it Answer: All three statements are hearsay. move on to FRE 403. and regardless of the answer to the hearsay question (FRE 403)? If the probative value is substantially outweighed by the danger of unfair prejudice. II. Listener is testifying that he heard Plaintalk say Higgens did “it. It tends to prove Higgens robbed the bank. NON-VERBAL ASSERTIONS: ASSERTIVE CONDUCT Evidence Outline Page 48 . Is the offered evidence hearsay? (FRE 801): If the offered evidence is (1) within the definition of hearsay. move on to chapter 8 of the FRE. Even if it fits within the FRE 801 definition of hearsay. This is hearsay and not admissible unless there is an exception. relevant and non-hearsay evidence will still be excluded. Even though it fits the FRE 801 definition of hearsay and despite its failing to be exempted by FRE 801(d). a.You need to establish the evidential hypothesis that favors admissibility or the irrelevant evidence will be excluded under FRE 402 and the analysis of admissibility stops here. By any reasonable assertion. Higgens was observed carrying money out of the bank. is it nevertheless within some exemption that expressly defines it as “not-hearsay” or non-hearsay? (FRE 801(d)) If the answer is yes. 2.” This is the direct statement of the point to be proved—it is plain hearsay.” This tends to show on the day this bank was robbed. Obliquw inteds to assert that point.e. 3. Does the evidence fit within the definition of hearsay of FRE 801(a)(b)(c)? If no. Always keep in mind the limiting instruction if you allow evidence to be admitted. and is not saved by an (2) exemption or (3) exception. is it within some exception found in the rules. especially in FRE 804 and FRE 804? 3. 2. therefore he robbed the bank. it must be excluded under FRE 802. you may have to explain here how the evidence is hearsay for one purpose but not hearsay for another. than it is not hearsay and move on to the FRE 403 question. despite being relevant. c. If the “it” you are referring to is the crime (then this goes directly to the truth of the matter asserted. Therefore this is not admissible (unless there is an exception). and the admissibility would stop here.” This amounts to an indirect assertion that Higgens robbed the bank. fitting FRE 801(a)-(c). i. If the answer is no. Should the offered evidence be excluded. Lissner said he heard Oblique say “they ought to put Higgens in Jail for this. b.) If the answer is Yes you move on to FRE 801(d) and other sections of chapter 8 to see if there is an applicable exemption or exception. (Remember. Lissner said I heard Serchev say “Higgens went out of here carrying money bags.
after having been stopped at it for a red light. The most common instance of such conduct involves one of the standard nonverbal cues—nodding or shaking the head or shrugging the shoulders in an answer to a question. 5. Problem 3-“Kenworth and Maserati” A truck to the side of the Masarati making a turn begins to move forward and the Masarati shoots forward into the intersection. Relevance: Moving into the intersection. Is it a statement. you can argue that this conduct “implies” that the light turned green. suggesting the fact that the jury could reasonably draw this inference from the proof. where it crashed into a car. This is a nonverbal conduct not intending to be an assertion. Alternately. They appear to look at each other and they both revved their engines loudly. Is it Hearsay: FRE 801(a). makes it more probable that the light had changed to green in their favor. 6. 3. then she could call it hearsay. When the light turns green they both "burn rubber" in front of you. Phillip and Hillary intended to assert that the traffic light was green (i. Whatever you can convince a judge was intended by the actor as an assertion is assertive conduct to prove the truth of the matter asserted will be hearsay and excluded (unless there is an exception). it is offered as non-assertive conduct).. 2. The truck moving forward was most likely not an assertion saying the light was green. directly in front of you. Answer: On first glance this is clearly not hearsay. It fails by the very definition of hearsay. The Drag Racing Scenario Two cars (Phillip and Hillary) are stopped at the traffic light. 4. you need not go any further than item 3. Probative Value is substantially outweighed by the danger of any of the six (6) reasons stated in FRE 403. As proof that he had the light in his favor. this was assertive conduct).e. FRE 801(a)(2)? (a) the revving was intended to be assertive of the call/intent to race AND/OR (b) accelerating into the intersection ("burning rubber") was intended to be assertive of the fact that the light was green. If it is not offered or objected as assertive conduct. A lawsuit ensues. if intended as an assertion. (b) & (c)? This is only an issue if it is offered as assertive conduct OR if the opposing party objects to its admission by arguing that it is assertive conduct (theoretically possible but quite odd). Only "b" is admissible for the proposition indicated above. and. D wants to offer evidence of a truck moving forward as being evidence that the light turned green.e. Declarants FRE 801(b)? Evidence Outline Page 49 . 1. although the likelihood of unfair prejudice becomes higher if the evidence is admitted as an assertion. FRE 403 is probably not a problem. Advance the P’s argument that evidence of the truck moving forward is hearsay.. it is subject to the hearsay exclusion. pointing as a means of identifying or selecting. If you could convince the judge that the trucker was being assertive. a court can simply offer testimony that they went into intersection as evidence that the light was green (i. However. Evidential Hypothesis or Fact-pattern: Through their conduct.Any reasonable definition must embrace assertive conduct when offered to prove the truth of the matter asserted.
• Relevance of Testimony/Evidentiary Hypothesis: People would have complained if there was a problem in the room. The P’s contend the trial court erred in allowing in evidence the testimony of the hotel owners. it was a contemporaneous statement regarding the condition of the intersection made upon personal observation thereof by Phillip and Hillary. and neither Hillary nor Phillip are a party. FRE 803(1) The exception.e. 8.e. so you are describing their conduct in your trial against the person that broad-sided you after you went into the intersection behind Phillip and Hillary. alleging their son died of Carbon Minoxide from the AC vent.: their silence communicated there was no problem. 9. • Plaintiff tried to say this is hearsay because the hotel owners implied the “assertion” of the hotel visitors (i. The opposing party would argue that any other reason is a mere pretext. but the statement would be admissible because it was their present-sense impression of the situation (i.Phillip and Hillary 7. in a criminal trial charging them with racing or injuring someone while racing.) • Court said this was not hearsay because it derived its value from the credit to be given to the witnesses themselves and was not dependant on the veracity or competency of other persons. Hillary and Phillip intended their conduct to assert that the light was green. Owners of the hotel introduce evidence claiming there were never any complaints from customers in the hotel. The assertive conduct would be a hearsay statement. People would have been able to smell the carbon monoxide. Cain v. the light changed from red to green). the best chance of admission is 803(1) present sense impression. • It is admissible to show how the heater acted in the past. FRE 802 The "burning rubber"-as-statement that the light was green is inadmissible hearsay. Truth of the matter asserted FRE 801(c)? If the proponent is seeking its admission as a statement to prove that the light was green. This EH requires the assumption that the noncomplaints can in fact prove the defect did not exist. Thus.. but specifically defined as not hearsay by 801(d)(2). This is clearly the best available evidence to support their position that carbon monoxide did not come from the heater. because if it had existed then people would have complained. Evidence Outline Page 50 . They are not parties to the case. • A judge would probably allow the revving evidence to constitute assertive conduct showing Phillip's and Hillary's intent to race. then yes. the evidence becomes technically subject to the language of FRE 801(a)-(c). (Admission by a party opponent) • If we were to classify it as hearsay. If it was a statement. George Parents are suing the hotel. unless you can find an exception. That is. The same goes for a tort trial in which they were parties (to show intent to commit a tort requiring specific intent).
in substance. Check Checkkey witness (Cali)Spinelli Check.Indirect Hearsay Consider the following testimony Q: What is your name? A: Edith Harris Q: Where were you born? A: Bangor. cannot be used to prove substantial points in a case. However. this would not be hearsay. “By not telling us what Cali said to you. what did you say to him?” • Court said Spinelli was obviously serving as a transparent conduit for the introduction of inadmissible hearsay information obviously supplied by and emanating from the key witness. 1983 Edith Harris cannot have firsthand knowledge of any of the facts set out in her answers. They did this creatively by only asking him to say what he (Spinelli) talked to Cali about following the conversation. the system tolerates testimony of the sort shown above even though the witness lacks personal knowledge and is. she does not have personal knowledge. Cali. However. Maine Q: Who are your parents? A: Mike and Sue Q: What is your mother’s maiden name? A: Smith Q: What is your date of birth? A: November 14. he was inside the restaurant and did not hear the contents of the conversation. • Government tried to argue they were Spinelli’s own out-of-court statements that he was testifying to and could be cross-examined on them The testimony presents triple hearsay—the major problem is that Cali is refusing to testify! 1. • P put Spinelli on the stand to get to what Check had said. • Indirect hearsay. These statements are hearsay pure and simple—the source of her knowledge is hearsay. in another case where this is irrelevant/background info. was officer Spinelli’s informant who had a conversation with Check. a police man is convicted of possessing cocaine. • Ex: in a paternity case. United States v. Although Spinellie was close by. Cali would not testify. These statements were being offered for the truth of the matters asserted in them. this would be hearsay. In the conversation Check offered cocaine to Cali. The statements by Check to Cali: these statements would be admissible if they were offered using Cali’s testimony (because Cali would Evidence Outline Page 51 . and it would appear that every one of them was in substance. that pretty much proved his guilt. • In short. the key witness. testifying to hearsay. such as this.
The P was trying to get Cali’s description of his conversations with Check into evidence through Spinelli. The statements by Spinelli during his conversations with Cali: (i. Cali.(b) & (c)] Evidence Outline Page 52 . He could testify as to his own observations.: his statements in the form of “I said” would be hearsay under FRE 801(a). as an informant.e. Non-Truth Uses (1) impeachment [FRE 607] [FRE 613] [FRE 801(d)(1)(A)] [FRE 803(3)] [FRE 401] [FRE 403] (2) verbal acts (or parts of acts) [FRE 801(a). (2) verbal acts. and (6) circumstantial evidence of memory or belief. No exception is available and they are inadmissible under FRE 802. Spinelli was becoming a second witness (Cali) to confirm his own testimony about conversations with Check. but not as to his statements at the time he saw Cali and Check talk. regarding what Check told him: here the P’s are trying to prove the truth of what Check said to Cali. (4) verbal objects. (5) circumstantial evidence of state of mind. Note: The prior consistent statement exception does not apply because that can only be used for rehabilitative purposes. III. The only person who has personal knowledge of what was said during that conversation is Cali. (b). It is ultimately the declarant’s knowledge of what was said. The co-conspirator exception (FRE 801(d)(2)(E) does not apply here. and only if the witness lacked reason to fabricate at the time he made the hearsay statements. as relayed by Spinelli. they do not fit within the definition of FRE 801(a). 3.(b) & (c)— most likely within (c) (it fails to fit within the truth of the matter asserted language) • You always must balance the possible legitimate value of its “nontruth” use against the unfair prejudice of its truth use. This is not allowed. Spinelli does not know what was said between Check and the key witness. 2. NOT HEARSAY—NON-TRUTH USES Non-Hearsay: As was mentioned above.have personal knowledge of them—FRE 602 and they were admissions under FRE 801(d)(2)(a)) However. • These categories are not listed in the rules. They are statements being used to prove the truth of the matter asserted. Therefore it is not hearsay when offered for any other purpose. We are making a very purposeful choice by classifying something as a truth use or non truth use and then are making a judgment as to which one should prevail. was a government agent. • With these uses. The following are several commonly recognized alternative purposes: (1) impeachment. & (c). Spinelli had a lack of personal knowledge of what Check said. and thus was not a true “co-conspirator” for purposes of exemption. but are well accepted by the courts throughout the country as nonhearsay uses. No exception is available. In effect. (3) effect on listener or reader. an out of court statement is hearsay when offered to prove the truth of the matter asserted. The statements by Cali.
that he really wants the jury to take the prior statement as proof that Burton had the light. The attorney states that he is offering it to impeach the testimony of the witness and not to prove that the blue car had a green light. The net result is that it is only admissible for impeachment purposes under FRE 607. Steps to take with this problem: Preliminary: The color of the light is crucial to determining negligence. 613. it does NOT meet the requirements for the exemption. and circumstantial evidence of memory or belief. Bystander made a prior inconsistent statement conflicting with his testimony. Abby’s counter argument: The evidence goes straight to the matter asserted. Answer: Admissible to impeach. it might fit within the "not hearsay" exception of FRE 801(d)(1)(A) (prior inconsistent statement). (FRE 801(d) (1)(a). Issue: Whether the previous statement to the insurance adjuster is admissible or is hearsay. Abby can argue that Burton's purpose is pretextual. but not to prove the truth of the matter asserted. Prior inconsistent statements are not hearsay when offered to impeach. Since this one was given to the insurance adjuster. Problem 3-C: “The Blue Car Ran a Red Light” Facts: Witness testifies at trial “the blue car ran the red light. • Rehabilitation is a response to the impeachment. 611. with non-truth uses. the attorney (on cross) attempts to get the witness to testify that in a previous statement made to an insurance adjuster.” However. Evidence Outline Page 53 . but to prove that Bystander vacillated. NOTE: If the statement had been offered to prove the truth of the matter asserted. you can always argue its truth use is too prejudicial. the policy behind the hearsay rule does not seem to be at risk here because the very person who made the out of court statement is available to testify (and be cross-examined) to it. Burton offers the statement not to prove what it asserts (the blue car had the light). and the change in his story is contradictory behavior raising doubt about credibility • Also. Impeachment(flip side of impeachment is rehabilitation) A statement that would be hearsay if offered for its truth is not hearsay if used solely to cast doubt on the credibility of a witness’ current testimony. BUT ONLY IF GIVEN UNDER OATH IN A HEARING OR AT A DEPOSITION. The statement is being used to cast doubt on the credibility of Bystander’s current testimony. hence that it should be excluded under FRE 403 as posing too great a risk of "unfair prejudice." This shows how. 1. he said that the blue car had a green light. You don’t need to rehabilitate a witness unless that witness has been impeached.(3) (4) (5) (6) effect on listener or reader verbal objects circumstantial evidence of state of mind.
Non-truth use: The testimony will impeach the testimony given by Bystander in court. an undercover cop is propositioned by a masseuse (Debra) who is likely a prostitute. 2. words of misrepresentation in a misrepresentation action. because it is a relevant legal act in this case. We will exclude the statements from the definition of hearsay. (prior inconsistent statement).”’ This is not hearsay because we just want to know if he said those words. and therefore it is a non-truth use for the statement and it should be admissible. words of conspiracy (the words constitute the legal act of conspiracy). However. Possible truth use (truth of the matter asserted): The light was green for the blue car.” Issue: Whether the prostitute and the undercover cop’s out of court statements are admissible to show that an act of soliciting prostitution occurred. It is important to note the words are hearsay because the words are still a statement (oral assertion) capable of being used to prove the truth of the matter asserted. because if he said those words. so the words spoken would have had to be out of court—this is a crime that is committed through words. • This is the classic situation where the substantive law gives legal significance to certain words. they can be offered into evidence.) The act of Evidence Outline Page 54 . memory and sincerity of D (the ability to cross examine him). The statement constitutes the legal act in itself. Verbal Acts-Element of the Crime Problem 3-D—“Anyway You Like” While at a massage parlor. (the only way you can show solicitation is through words. Answer: Yes. This could be the element of an offense or claim (such as an offer or acceptance of a contract. Probative Value These statements do have a legitimate probative value for impeachment. 2. words of waiver. or libel and slander). it constitutes legal significance of acceptance.Two alternative evidential hypothesis that apply to the out of court statement: 1.: 801—Hearsay) FRE 801 does not say anything specifically about impeachment. Where a person’s words have independent logical or legal significance. All we want to know is if he said it • Ex: A witness testifies “I heard the declarant say “I accept your offer. words of cancellation. Verbal ActsWords (Spoken or Written) having logical or legal significance independent of their assertive value. In the middle of the massage Debra asked if the cop “was interested in a good time…I can give it to you any way you want. The same goes for defamation.g. We don’t care about the perception. We choose to show the inconsistency of the witness is a legitimate probative value for impeachment. All we care about is if the Declarant said certain words. Specific Rule (e. we are not going to use the statements to prove the truth of the matter asserted. We are engaging in a balance. words of bribery (making offers and seeking acceptances). The conversation itself is the issue.
this double crib of corn is your share for this year. Evidence Outline Page 55 ." (This statement occurred after the contract had been made between Lord and Prager. we have a balancing. Truth of the matter asserted: She actually gave him sexual favors or she intended to give them sexual favors. it is admissible. where Cartwright "pointed out the corn in the double crib and said. The truth of the girls’ statements is not important. performing the contract) independent of the assertive aspect. FRE 403 favors admission. and is part of the requirement of the substantive law. it is given independent legal significance. the words have "independent legal significance. Verbal Act: Has legitimitate non-truth probative value. the bank offers testimony by its loan officer that "when we came out to see about selling the corn. This is a crime committed through words. As proof. The Forest: Relevant: These words are relevant because they are material as to the crime that is committed. is Cartwright's statement to the bank officer hearsay? Answer: (1) Lord's Statements are NOT hearsay. It is being offered to show that it was spoken (whether her statement was true is irrelevant. 'Mr. Reasoning: (1) The statement has its own legal significance beyond its assertive aspects. This is an offer of sex for money and has legitimate probative matter. The fact that they were made was. (2) Cartwright’s statement to the loan officer did not perform a contract or effect a conveyance to the bank. Unfair prejudice has to substantially outweigh the probative value. Because it proves an element of the offense. The statement has legal significance (conveying corn." which is to say that the law assigns importance to the fact that they were spoken. Again. Verbal Acts-Element of a Contract Problem 3-E: “Whose Corn?” Facts: Lord is in a descrepency with Bank and Prager. Lord offers his own testimony that he and Cartwright had gone to the field. Two Alternative Evidentiary Hypothesis: 1. Prejudice This statement is still potentially unfair prejudice because the jury could take it to mean she actually gave him sexual favors. We really need this to prove an element of the crime. ) As proof that the corn was the bank’s. As a matter of substantive law. 2. They have relevance independent of their assertive aspect. so it is properly viewed as a verbal act. (2) Bank Officer's statements ARE hearsay. Thus. Lord. • Solicitation for prostitution is the very fact at issue.) Issue: First. Cartwright told us that the corn in the double crib was his. they are not trying to prove that the cop could really have it “any way he liked it”).' " (This statement solidified the contract.stating the words is the crime of solicitation. is Cartwright's statement to Lord hearsay? Second. Both assert they own 40% of Cartwright’s corn. sir. Hence the statement is hearsay. and it belongs to you. for there is no indication that Cartwright was conceding default and telling the officer that the bank could claim and sell the collateral.
and asks Plaintiff to show him the leak. However. Plaintiff takes Agent around to the gas leak. and a contract was effected is legitimate and therefore passes muster under FRE 403. • Ex: Victor (the Victim) goes to the police officer and says Spano mugged me. therefore he will be allowed to testify to what V said to him because this is relevant to show the effect that it had on the police officer. Probative Value: The probative value that delivery of the corn was delivered. Truth of the matter asserted: The Plaintiff owns the corn 2. Non-Truth use: Delivery of the corn was legally accomplished in the barn when the statement was made. Answer: We are not trying to prove the gas man is actually the agent. • Think of it as an out of court statement that shows why a third person acted or didn’t act in a certain way. we are trying to prove the reasonableness of Plaintiff’s conduct (the effect on Plaintiff-. it is not hearsay. It gave the PO probable cause to arrest Spano.that he was not contributory negligent because he believed that he was accompanied by someone who knew what they were doing) • We still need to balance the probative worth to ensure the jury does not misuse the statement for proof of agency. Agent appears and says that he is from the gas company. The PO wants to show he had probable cause to arrest Spano.The Forest: Relevant: These statements establish who would be the lawful owner of the corn. An out of court statement offered to who the effect on the listener Where a statement (written or spoken) is used to show the effect it had on its intended addressee. 3. (FRE 403) Evidence Outline Page 56 . Issue: Whether Plaintiff's testimony that Agent stated he was from the gas company is admissible as non-hearsay. Alternative Hypothesis: 1. PO arrests Spano. the gas company asserts that Plaintiff is contributory negligent for going so close to a gas leak. This statement is not being offered to prove the truth of the matter asserted (it is being offered to show the effect on the police officer) Problem 3-F—“I am from the Gas Company” Facts: Plaintiff smells a gas leak. the “gas man’s” statement is offered to show the effect it had on the plaintiff in order to show that his actions were reasonable under the circumstances. and Agent lights a cigarette which ignites the gas and injures Plaintiff. At trial. there is a possible non-truth use. In the following case. So it is hearsay under FRE 801. such as loan denials or termination of employment. Spano sues the PO for false arrest. Specific Rules This is a statement (an oral assertion (this corn is your share) and a nonverbal conduct (pointing)) made out of court that can possibly be offered to prove the truth of the matter asserted. This often comes up in cases where the reasonableness of someone’s actions is in controversy.
the will fits the verbal act doctrine (words having legal significance) and it disinherits Ira. when offered to prove how Anna felt and would likely have treated him. it is admissible. 4. Although it standing alone. Answer: The will and the comment about Ira are not hearsay. Arguably. FRE 803(3) creates a hearsay exception for a statement describing a state of mind. the wife’s statements about her husband’s cruelty are being offered to show that she didn’t like him. Only a few weeks earlier. Problem 3-H—Anna Soffer’s Will Facts: Husband tries to collect in a wrongful death suit for future income of dead wife. if there is evidence sufficient to show the fact of agency or employment prima facie. The comment about Ira (he is cruel and selfish) is nonhearsay because shows the state of mind of the wife-. Forest Relevance: The will suggests that she deeply resented him.showing trouble in the relationship. and made several disparaging comments about him. Hearsay: Evidence Outline Page 57 . wife executed a will in which she limited his inheritance to $1. they are not being offered to prove that he was actually cruel. Note that the gas company could then offer counterproof showing Forest is not an agent. the damages will be reduced because it shows that she would not have shared much of her income with him or much of a companion. Truth of the matter asserted: The agent is actually an agent of the Gas Company 2. regardless what kind of person Anna thought Ira was. and supports the contention that she would not have shared with him much of her expected "significant income" and would not have been much of a companion (a loving spouse). declarations or statements of the alleged agent are admissible in corroboration. but not to prove that what they thought or felt was actually accurate. because of this. Circumstantial Evidence of State of Mind Where a statement is used to prove what someone thought or how they felt. Non-truth use/Effect on Listener: Alfred was reasonable in approaching the gas leak with someone he believed to be an employee of the Gas Company who was instructing him to go there—his reaction was reasonable upon hearing the statement. Forrester can give persuasive evidence in court that he is employed by the gas company.Two alternative hypothesis: 1. As a dispositive document. but only that the wife and the husband were not getting along and so the husband was not likely to get future income and companionship. It is not being offered as proof that the husband was actually bad. Could Forrester take the stand and testify he was an agent in order to prove agency? Yes. In the following example.
The fact that such a declaration was made by the wife. and the accounts match. Answer: No. This content is highly probative of the reasonable expectancy the husband would get if the wife died. In the following example. the girl’s statement does not in itself prove that the place she was assaulted was the defendant’s. it is behavior raising doubt about the closeness of the relationship. Evidence Outline Page 58 . and probative worth is independent of truth content. • Truth Use: Ira beat Ana • Non Truth Use: The quality of companionship between the two was not what might have been expected between husband and wife-statement raising doubt in the closeness of the relationship—husband and wife were not getting along so husband would likely not be supported by Ana. that statement indicates that something has gone sour in the relationship no matter what the declarant actually thinks about her husband's qualities. When one spouse says in a public setting (or one likely to be made public) that her spouse is cruel and selfish. but the fact that her memory matches the description offered by the arresting officer helps to prove she was there.) • Truth Use: Ira was a bad person • Non Truth Use: Ana would not have supported Ira if she would have lived. 2. Anna’s Comments: Anna was highly upset because it amounts to an act of public disclosure revealing a problem in the relationship. whether true or false. The arresting officer then gives a separate detailed account of the defendant's room. Problem 3-I: A Paper Mache Man Facts: A child is molested by a man in a room. we have a verbal act with a legal significance (aka that Ira is disinherited and that Anna would not have supported Ira if she had lived. but rather that the girl had a mental impression of being in the room that could only have come from being in the room. FRE 403 Balancing: her disclosure has probative worth simply because she said it. Issue: Whether the description by the police officer of the girl’s description of the room is hearsay. 5. Will as Dispositive Document: It is right to say that insofar as the will leaves Ira only $1. and probative worth does not depend on truth content. Ira would have had no reasonable expectation of future financial benefit if Ana survived. Circumstantial Evidence of State of MemoryA person’s recollection can be used in conjunction with non-hearsay evidence to connect a person to a place or crime.1. it may be let in as a then existing mental impression of the room. is compelling evidence of her feelings toward him and are not excluded under hearsay. but are admissible as her state of mind and verbal act. The room is described by the child to a police officer who testifies to what the girl told her about the appearance of the room. This is not used to prove that the room was as the girl described it.
or that the exterior features or surroundings of the house were as the child stated. or other proceeding. the agency or employment relationship and scope thereof under subdivision (D). hearing. “NONHEARSAY” AND “NONASSERTIVE CONDUCT” Rule 801. or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Evidence Outline Page 59 . or that they were located as stated. However. but rather to prove that she believed that the room looked thus because she had been there. Non-Truth Use: Because she can describe the room in detail and she was assaulted somewhere. it was admissible to show she had knowledge as to articles and descriptive features which. Truth Use: The young girl was assaulted in the D’s room. IV. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement. and was given under oath subject to the penalty of perjury at a trial. then the young girl's statements to the officers indicating what she believed the room to look like can be used not to prove what the room looked like. were in fact in or about that room and house.• • • • • The officer’s testimony as to her own observations does not raise any hearsay problems because the officer is simply testifying to what she observed in the room at the time of the D’s arrest. Definitions (d) Statements which are not hearsay. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C). or in a deposition. or (C) a statement by a person authorized by the party to make a statement concerning the subject. A statement is not hearsay if-(1) Prior statement by witness. and the statement is (A) inconsistent with the declarant's testimony. or (C) one of identification of a person made after perceiving the person. or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment. This is a great example of conditional admissibility: if the actual appearance of the defendant's room can be established by direct testimonial evidence of the police officer. These statements would NOT have been inadmissible if the purpose had been to establish that there were in fact the stated articles in the room. The statement is offered against a party and is (A) the party's own statement. the assault occurred in the room. But this testimony is essential to make the child’s testimony relevant. in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth. as was proved by other evidence. or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). made during the existence of the relationship. or (2)Admission by party-opponent. or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
o NOT FALLING UDNER FRE 801(a)-(c): nonhearsay or not hearsay o FRE 801(d): hearsay exemptions. • Ex: The D in a criminal case takes the stand. nonhearsay exceptions will be classified as follows. • Note. These can be in the form of legal conclusions. 611(b).” The statement is offered against a party and is: • The party’s own statement Evidence Outline Page 60 . The Prior statement of identification made by a witness. The D could just say “I am innocent. 3. We must distinguish between statements that are nonhearsay because they are used in a way that puts them beyond the reach of the hearsay definition in FRE 801(a)-(c) and statements that are “not hearsay” because they fit into the special categories in FRE 801(d). when you were arrested what did you tell the police? He said “I told them I was innocent. In order to be relevant. 1. not about their prior statements. Ex: “I was negligent. FRE 607. Prior inconsistent statement which was given under oath and as part of a formal proceeding. • In this situation most of the hearsay dangers are abrogated by the fact that the witness is now present and subject to cross-examination. and 613 make it clear that any statement can be used for impeachment. (such as a deposition or a hearing)—FRE 801(d)(1)(A) 2. "nonhearsay" and "not hearsay" o Other FRE’s (like FRE 803): hearsay exceptions FRE 801(d) “Not hearsay” exceptions Prior statements by witness A witness testifying to the witnesses own prior statement: This is hearsay. Admission by party-opponent: A declaration by a party offered against the party.• • The nonhearsay uses have nothing to do with the “not hearsay uses” set up by 801(d)(1). if the declarant testifies. For the purposes of this class. the rules adopt a partial approach: 801(d)(1)(A) allows admission to prove the truth of the matter asserted but only if the inconsistent statement was given under oath at a hearing or in a deposition. • Generally. A witness’s own prior statement if it is being offered to show the truth is hearsay.” However there are certain prior witness statements that are not hearsay and are therefore admissible and subject to cross examination. Prior consistent statement which is offered to rebut a charge of recent fabrication or improper motive. Nevertheless. The D’s lawyer asks his client. he or she must testify to their observations. usually the admission would have to be inconsistent with the party’s present position at trial.” The answer to this is inadmissible hearsay because it is being offered to show the D is innocent.
Singer. When they get to his house the wife said he was in Denver. 136 Facts: Sazenski and Izquierdo were suspected of smuggling marijuana from Florida to Minnesota. In fact. Answer: The court said sending the letter was “conduct” not intended to be an assertion. The defense objected on the grounds that the content of the letter was hearsay (“writing” made out of court by other than the witness). In other words. (1983). pg. Instead we are trying to show what the declarant was attempting to achieve through her lies and perhaps what the lies show about her state of mind. A lie cannot possibly be offered for a truth purpose and cannot trigger the definition of hearsay. Lying and Hearsay: Most courts allow out-of-court lies by a declarant under the somewhat over-simplified reasoning that because they are lies they are not being offered to prove the truth of the matter asserted. not a statement and therefore does not fit under FRE 801(a). Answer: Yes. the LL’s behavior is an act (LL’s conduct of mailing that letter which is being introduced to demonstrate his belief that the D lived there. It is the implied truth of the action we are implying from the LL’s behavior that D lived there. this is hearsay. Her statement appears to Evidence Outline Page 61 . Here. it is an act. The court chooses to look at the entire scene and the action of the landlord and therefore it is not a statement and therefore not hearsay. United States v. the hearsay doctrine is not implicated because what a party to a suit says may always be used against him. A letter was sent from Sazenski’s landlord to Sazenski and notifying them of their eviction. • Remember it is all about how we classify this: The court chooses to classify the LL’s behavior as an ACT therefore avoiding the problem of classifying it as a written statement. • Counterargument: If this was a written statement submitted to imply the truth of the matter asserted. Sazenski had a residence in Minnesota. The inferential syllogism starts with an act (not a statement). We can infer from the Landlord’s act the Defendant lived there. Problem 3-J “My Husband is in Denver” Facts: FBI agents issue an arrest warrant for Greg. The prosecution sought to enter the letter into evidence in order to show that Sazenski and Izquierdo lived together. D objects claiming that what she said or thought was hearsay. just the opposite is true. the out of court statements are not being offered to prove their contents.• • • • A statement of which the party has manifested an adoption or belief of its truth A statement by a person authorized by the party to make a statement A statement by the parties agent or servant concerning a matter within the scope of the relationship A statement of a conspirator made during the course and in furtherance of the conspiracy. Issue: Whether lies made by a declarant out of court are admissible as non-hearsay if used to show the state of mind of the declarant. The government wants to enter this testimony. Where a defendant’s lies are offered into evidence. Although this is going straight to the truth of the matter asserted.
The government argues the lie is being introduced to show Greg’s wife’s lied because of her belief in his guilt. Issue: Whether a disclosure made out of court by a declarant which would not ordinarily be made by a guilty person is hearsay. that would be evidence that she felt he was guilty. The actual assertion (truth of the matter asserted) here is: “I believe my husband to be guilty and that is why I am providing him with an alibi. and there may be innocent explanations for what the wife said. He also offers witness testimony saying that she heard him in public say that he was storing a King Air aircraft on his airstrip. Pacelli: Evidence Outline Page 62 . Nobody intentionally harbors stolen property and talks about it. This can be offered because of its performative aspects and as circumstantial evidence of state of mind. It was offered to support an inference of innocence: a man with a guilty knowledge is not likely to advertise his possession of stolen property. With these types of questions. It is being offered to show Bruno’s state of mind that he didn’t know. Bruno denies any involvement with the smugglers.be a deliberate lie. this would be hearsay. This statement is not offered to prove what Bruno knew. but what he was willing to tell others that he knew. Her statement is also a performative act because it is an attempt to interfere with the investigation. It was offered to support an inference of innocence. This conduct by Bruno tends to prove he wasn’t knowingly involved in the theft of the plane. intending to say only that Greg had been or would be going to Denver (narration) • she may have forgotten. The testimony is offered to show that he is innocent because a guilty person would not advertise that a stolen plane was on his airstrip. a man with guilty knowledge is not likely to advertise his possession of stolen property. Therefore we should not give a lot of probative weight to her statements.” In which case. Nobody could be convicted on such proof alone. wrongly believing he had gone (memory) • she may have misunderstood the arrangement (misperception) Significance of Disclosure. but as a state of mind that no one would talk about any stolen property. claiming that he let the plane land because it was an emergency. • Barbara may have misspoken. which is probative on whether Greg was guilty. Bruno let a drug plane land on his property. you may be able to cross reference FRE 801(d)(1)(B).Sometimes a defendant might make a disclosure that would seem unlikely of a person with a guilty conscience. You are not offering the statement for its truth. You could also argue admitting this statement produces risks (FRE 403) that unfairly prejudice the jury. The important issue here is did Bruno know there was drugs on the plane. If she were trying to lie to police. Answer: No. At trial. The statement was not offered to prove the airplane was stored on the property. which also goes to show Greg’s guilt. Problem 3-K: King Air YC-437-CP Facts: Bruno is charged with importation of drugs. Counterargument: This is an oral assertion being offered to prove the truth of the matter asserted.
if we can prove that they committed a crime in engaging in the cover-up. if it is an act. we can use it to prove any inference we want. Lipsky testifies that he was at Paseli’s house in which there were statements made that Paseli was the one who murdered Parks. Defense was trying to say they wanted to admit the evidence to inferentially show guilt through acts. Court said no! • Counterargument: this was non-assertive conduct/conduct (actions) from which we can infer Pacelli’s guilt. thus the former fit under 801(a)(1) and the latter under 801(a)(2). The Court agreed (a.a. thus NOT HEARSAY under 801(a)(2).: these statements were hearsay). If you find the statements are hearsay: Evidence Outline Page 63 . Pacelli Under the Rules: (1) FRE 401: It is more likely Paceill committed conspiracy if he killed a key witness that was going to testify against him. and of his friends Perez and Bracer on February 10. (i. However. Also.) (2) FRE 801(a): The statements and assertions were intended to be statements. This is conduct from which we can circumstantially infer Paseli killed Parks. or (b) because they are verbal acts constituting obstruction (illegal act. These are acts from which we infer the guilt of the defendant. 803(3) is not needed. Beverly.Pacellli was charged with conspiracy to interfere with the constitutional rights of others. Therefore. • But the Pacelli court did not buy that prosecutorial argument. (5) FRE 801(c): (what the Plaintiff’s would argue) The statements are NOT being offered to prove the truth of the matter asserted. These statements are verbal assertions by multiple declarants used to prove the truth of the matter asserted. Pacelli murdered Parks to prevent her from testifying. Frank Bassi.: Pacelli is guilty-. of his uncle. ex: cover-up) (6) Since they are not hearsay. then they clearly become Verbal Acts and would be admissible.k. In essence. at the Bassis' apartment. it is non-assertive conduct.the speakers assumed him to be guilty because he told them he was guilty. in which case it is not hearsay. they infer that he is guilty and the rule does not adopt the inference view. This was an assertion that implied the guilt of Pacelli. just as in the "My husband is in Denver" problem. Defense knows that the statement is going straight to the matter asserted. Pacelli argues that Lipsky should not have been able to testify as to the conduct and statements of his wife. but note that for the same reason they probably do not fit within the 803(3) exception. the government was claiming he killed Parks (a witness who was testifying against Pacelli in a drug dealing case).e. (4) FRE 801(b): The statements were made by persons. This is performative conduct intended to assert that they believe defendant to be guilty. In other words. Remember. • Truth of the Matter Asserted: Paseli Killed Parks. they would be admissible to prove something other than the truth of the matter asserted for 801(c) purposes. 1972. (The wife was committing a crime independent of everything—lying to the Feds) Accordingly. (a) because they do not state that Pacelli is guilty.
and she started crying. the court could have found: (in which case. testified as follows: • A. just as the child's statements in the Papier Mache Man case became admissible once the other police officer testified to her personal knowledge of what the appartment looked like. (nontruth use) This testimony offers circumstantial evidence of the child’s fear of her step father. Court deems this evidence to be circumstantial assertions of fear on behalf of the child.) • Reasoning: The statements of the child were not admitted to prove the truth of the assertions she made. but merely to indirectly and inferentially show the mental state of the child at the time of the child custody proceedings. Betts v. The Step-brother is a bad guy. However. (Be careful not to say the child knows or believes. Betts There is a child custody proceeding going on. verbal communication is being used for a nonverbal assertion (fear) Possible truth uses. She said: --she ran and put her arms around me and her head in my lap and started crying real bad and hard and said. as it would go straight to the truth of the matter asserted. they might become admissible. then it would definitely be hearsay. The Step-dad killed my brother."-. because this may implicate the truth of the matter asserted. but they would not be admissible to prove the truth of the matter asserted. The foster mother saw an item in the paper relative to the remarriage of the child's mother and with reference to it. “I am Napolean Bonaparte” Evidence Outline Page 64 .• You can argue that the statements are offered to prove mental impressions based on knowledge acquired from Pacelli regarding the crime (803(3)). "He killed my brother and he'll kill my mommy too. the statements would have been hearsay) 1. FRE 403: We allow this because the dangers or the truth use is NOT IMPORTANT in this case. here we are only offering the evidence to show the child would not be in a good environment (evidentiary hypothesis for the non-truth use) o In this case. So I told her that her mama and Mr. o In this case. if we were offering this evidence to prove the father actually did kill the child’s brother. 2.and she doesn't seem to ever get that out of her mind. o However. • We are offering this statement to show the child’s state of mind. Ray Caporale had got married. when you couple them with the co-defendant's confession that he helped Pacelli commit the crime. • The use of this testimony does not violate the hearsay evidence rule.
: that Pacelli was guilty. Her lie circumstantially proves her belief that G was guilty. Hearsay Quiz: (page 150) We are only determining whether it is or is not hearsay (FRE 801(a)-FRE801(c). because the testimony in the gas company example was being offered to prove something else.e. the possibility of truth use (i. Non-hearsay: possible non-truth use—effect on listener (attempting to show C was negligent by getting in the car) 3. 2. (i. 4. We do not deal in terms of the reliability of the statement. Non-hearsay: circumstantial evidence of a state of mind. Because of the Duck Soup Argument. Where in criminal cases.: circumstantially inferring the state of mind of the child) Implications/Assumptions Pacelli deals with that which is implicit/asserted by a statement. This would be relevant in a sanity hearing. If you identify yourself as someone you cannot be. this could be labeled as a verbal act because this would be an element of the fraud.e.: that Pacelli killed the victims) could be used to impact the jury (i. Evidence Outline Page 65 . there was independent legal significance. and your capacity is being challenged.This is an obvious example of an out-of-court non-hearsay statement which circumstantially indicates a state of mind regardless of the truth of the statement. you do not have to go to 803(3). The man was reasonable in following the agent to the gas tank.: for truth purposes. the fact that the step dad killed the son was not as harmful because it wasn’t his criminal trial! • Pacelli was a criminal cases that implicated Pacelli’s guilt. Cross reference Ana Sofer’s will. this is circumstantial evidence of a state of mind. Reliability of the statement/witness is only important when we are dealing with the truth of the matter asserted. Non-Hearsay: Verbal Act (if we knew that lying to the police was a crime) or circumstantial actions of the state of mind. as in Pacelli.) We will deal with reliability with the hearsay exceptions and the 801(d) Inferences verses Implications/Assumptions Inferences Betts deals with inferences (i. If this was an identity theft case. In the gas case.e. A Note on Reliability The Reliability that we deal with in non-truth uses is the reliability/strength of the evidentiary hypothesis.) In Bettes. the possibility of truth uses is a lot less. Bettes was a civil case that dealt with circumstantial inferences. A Note on Possibility of Truth Use: In civil cases.e. Hearsay: this goes straight to the truth of the matter asserted! This is different than the gas company. Elements: 1.
• There are 37 express exceptions allowing the use of hearsay for truth purposes within the rules. We are now more concerned with deciding whether the statement is admissible. Statements by declarants who testify: Three exceptions that apply to certain prior statements by testifying witnesses. which is diminished or denied when hearsay is used. Non-hearsay: non assertive conduct-it was an unavoidable natural response and therefore we should trust it. even though it is hearsay. HEARSAY EXCEPTIONS Here.(b). the sweating and shaking was fake. despite being relevant." (FRE 801(d))? (c) Even though it fits the 801(a). These five exceptions are set out in Rule 801(d)(2)." These are party admissions. • With hearsay exceptions. not to mention the six "non-truth use" categories. especially in FRE 803 and FRE 804? (Hearsay Exceptions) (3) Does the 6th amendment prohibit its use? Should the D be able to cross examine the witnesses against him? (4) Should the offered evidence be excluded. is it nevertheless within some exemption that expressly defines it as "nothearsay" or "nonhearsay. These statements are called "not hearsay" even though they fit the basic hearsay definition set out in Rule 801(a) through (c).5.(c) definition of hearsay. At the heart of the confrontation clause is the right to cross-examine. 2. if we can argue. we know the evidence is hearsay. et seq. AND despite it failing to be exempted by 801(d). (b)&(c)? (Remember the non-truth uses) (b) Even though it fits the 801(a).(b).(c) definition of hearsay. and regardless of the answer to the hearsay question? [FRE 403] (5) Should there be a limiting instruction? Hearsay Exceptions Come in FOUR main groups: 1. these are hearsay exceptions created by statutory magic. IV. We may be able to argue it was assertive. Deconstructing Hearsay: Preliminarily: who decides admissibility/foundation. In substance. Admissions: The second group contains five exceptions that together make up the "admissions doctrine. is it nevertheless within some exception found in the rules. you still need to consider: o the FRE 403 balancing test and o the Sixth Amendment Confrontation clause.] [Presumptively Excludable. is comprised of the 24 [actually 23] 'unrestricted' exceptions listed in Rule Evidence Outline Page 66 . and by far the largest group. Unrestricted Exceptions: The third. Rule 801(d)(1). FRE 802] (a) Does the evidence fit within the definition of hearsay of FRE 801(a). judge (FRE 104(a)) or jury (104(b))? (1) Is the offered evidence relevant? [FRE 401] [FRE 402] (2) Is the offered evidence hearsay? [FRE 801. 3.
V is found dead. Statements that fit these exceptions may be offered to prove what they assert regardless whether the declarant testifies. • A declaration of present physical postion: A declarant’s exclamation of present pain. V tells Mom someone is at the door. Mom calls up V.” • Declaration of Intent: declaration of present intent to do something in the not too distant future is admissible to show what was intended was done. (2) the statement must be made under the stress of excitement under the startling event. The witness said he heard the decalrant say “I want to kill myself” a few days earlier. bank robbery. The previous medical history is admitted for its truth.803. is hired to give testimony that the P was disabled as a result of the accident. but these may be invoked only if the declarant is ''unavailable as a witness" under FRE 804(a). etc. 20 seconds later V comes back on the phone says Spano is here. • Present sense impression-precise contemporaneousness. This only comes in if there is corboration of the trustworthiness of the Evidence Outline Page 67 . bodily condition etc. 4. suffering. and regardless whether or not he could be produced at trial to give testimony. etc.” This is present sense impression—v is describing something that is in existence at the very instance he is speaking. • Former Testimony by an unavailable declarant • The Statement Against Interest a declaration of a person now unavailable as a witness against that person’s money interest or property or penal interest. • Excited Utterance: (1) there must be a startling event. is admissible. Shorltly thereefater. who needs to give you a diagnosis or treatment. (3) statement must concern the effects of the starling event o Startling event could be a fire. The issue becomes has the excitement worn off? o Look at the verbs to determine if it is an excited inference—the declarant screamed. (You aren’t going to lie to a Dr.) Ex: a dr. • Declaration of Existing State of Mind when existing state of mind of declarant is an issue in the case. Ex: Did Spano act with malice on January 2? A witness can testify that he heard Spano say “I feel malicious today. He basis this on “the medical history he got from the P”. Ex: a third party confessed to the crime of which someone is on trial for. showed. There can be a time lapse between the event and the utterance. Ex: police find declarant’s dead body. Mom wants to testify “Spano is here. suffering physical condition: medical records made for the purpose of diagnosis or treatment is admissible. • A declaration of past pain. A statement which is offered to help the accused is not admissible without cooboration of the trustworthiness of the out of court statements against penal interests. Statements by unavailable declarants: The fourth and final group is comprised of five more exceptions set out in FRE 804(b).
The accused has a 6th amendment right in a criminal case to confront the witnesses against him. it should still be excluded by the 6th amendment if: (1) the statement is offered against the accused in a criminal case (2) there was no opportunity to cross examine when the statement was made and (3) there is no opportunity to cross examine at the time of trial. Sometimes the police officer is merely trying to provide for a person’s health and safety and is not gathering evidence for prosecutorial concerns. Washington and Davis v. has said there is a distinction between what the rules accept and allow to be admitted and what the 6th amendment accepts and allows to be admitted.C. • The 6th amendment does protects a D’s right to confront testimonial statements—statements made to police that are gathered for the purpose of prosecuting someone. • For a long time.In extraordinary circumstances where you have an out of court statement that does not fit in a categorical exceptions. (3) available only in homicide case or in any civil case. o Not every statement to law enforcement is testimonial. There is a psychological compulsion not to die with a lie on your lips. Sixth Amendment and Testimonial Evidence In hearsay questions. the recent S. (4) the subject matter must concern the cause or circumstances of the impending death. (3) personal knowledge is required—the declarant must know what he is talking about and know what he is saying is against his interest. The Dying Declaration: the statement made under a sense of impending death. they can survive. FRE 807: (Residual Exception gives another possibility for admissibility with hearsay)-. the S. However. (4) the person who made the statement must be unavailable. (2) the declarant need not actually die. you must always consider the D’s right to confront the witness. Rationale: a person will not lie at the dying hour of death. if it has equivalent ground of trustworthiness with one of the exceptions the judge can use its discretion to admit it. but they must be unavailable at the time of trial. changed the understanding of the 6th Amendment. Evidence Outline Page 68 . and (4) the statement was testimonial in nature (a statement which is made to police officers for use in the investigation or prosecution of a crime) In Crawford v. Even if the out of court statement fits a hearsay exception—even if the hearsay is normally admissible.C. Washington. (Don’t confuse this with the admission of a party) It is different because (1) the statement of interest must be against interest at the time it is made. if one of the hearsay exceptions applied. (2) it can be by anyone—it doesn’t have to be a party. however. Four things to note: (1) the statement must be made under a sense of impending death—victim must know they are going to die. you met the D’s 6th amendment right.• statement.
This is trying to get control for an emergency situation. The jury found Smith guilty of assault in the second degree. A. this is testimonial. • Note that the brutal nature of the assault. or other proceeding. as it was apparently the only evidence that identified defendant as the perpetrator of the assault. In that case there is no evidence to prosecute Nova!) • The trial court allowed her prior inconsistent statement to be used as substantive evidence ruling it was not hearsay under Rule of Evidence 801(d) (1)(i). • The prosecuting attorney introduced the written statement at issue for impeachment purposes. hearing. or State v. They want to use this for a proof purpose—they want the jury to believe the content of the statement—that Nova assaulted her. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement. At Smith's trial a month later.o Subjective intent of the government—as long as the police are trying to help you and prevent the health and safety of the general public. she named another man as her attacker. Smith Assault victim. She signed under oath with penalty of perjury before a notary. and the statement is (A) inconsistent with the declarant's testimony. [FRE 801(d)(1)(A)]. (FRE 607. Rachael Conlin. which contained Miranda warnings. • NOTE: if the P would have just used this for a non-truth purpose (impeachment) then you cannot prove the substantive matter of the statement. The witnesses testimony would simply have been thrown out. creates a strong inference that the witness has changed her version of the events due to fear. or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Evidence Outline Page 69 . and was given under oath subject to the penalty of perjury at a trial. this is not testimonial. in which she named Nova Smith (defendant) as her assailant. Analysis: • The statement meets all the requirements of FRE 801(d)(1)(A) except the "prior proceeding" which is the object of the Court's analysis. or in a deposition. However when they are gathering information to prosecute criminals. wrote out a statement on a form supplied by a detective of the Pasco Police Department. 613) The State then moved to have it admitted as substantive evidence also. or (C) one of identification of a person made after perceiving the person. combined with the subsequent attack by the same person. • While every statement given in a police station is not a “proceeding” the court said all of the factors in this case would suggest this is a proceeding. Prior Inconsistent StatementFRE 801(d)(1)(A) A statement is not hearsay if-(1) Prior statement by witness. rather than because what she is now saying is the truth.
the witness wrote the statement in her own words. the reliability of the statement is the key. admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross examination. nothing here is a hearing. was in a position to determine which statement was true. the complaining witness-victim voluntarily wrote the statement herself. Here. o Giving a notarized statement to the police is questionable as to whether it constitutes a proceeding—but the court said a proceeding must establish that the statement is sufficiently reliable to constitute “other proceeding. there was no question that the statement was made since Ms. In the federal system it would be the ONLY way to Evidence Outline Page 70 . FRR 801(d)(1)(i) is satisfied under the totality of these circumstances. and hearing her explanation of the inconsistent statement while subject to cross examination. You have to do a balance--look at reliability under a totality of the circumstances test. grand jury proceeding.” Some federal courts would exclude all affidavits made to investigating officials as substantive evidence under FRE 801(d)(1)(A)—this is the prevailing standard.” o Prevailing standard: Some police interrogations may fit in this “other proceeding language. Each case depends on its facts with reliability as the key. Florida also uses this standard—you have to look for adversarialness or the presence of a neutral and detached fact finder in order to get it admitted. o The court says there is no bright line test for reliability. Note. o Exceptional state rule: (which Smith uses) you can admit an affidavit sighed by a witness any time it is taken under oath before an official who is authorized to hear evidence and administer oaths—this is the exception to the rule! In determining whether to consider something a proceeding and therefore admitted as substantive evidence under 801(d). under oath and subject to penalty for perjury. under oath. o The inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness. o Clearly. swore to it under oath with penalty of perjury before a notary. would have been a better way to getting this prior statement admitted. seeing Rachael Conlin on the stand. o Here.• • • This decision stretches the term "proceeding" beyond recognizable bounds. FRE 804. All of these things entail “adversarialness” (lawyers from both parties) and often a neutral undetached magistrate or factfinder/jurrors who preside over the proceeding. deposition or trial. Additionally. Conlin testified to that fact. o The jury. o Minimal guaranties of truthfulness were met since the statement was attested to before a notary.
Because this balancing test of reliability would not have passed muster in federal court! Furthermore. This argument is more substantial than the first. 2. o Here Paul’s claim of lack of memory seems hard to credit. The trial court admits the grand jury testimony. The defense makes two objections: 1. It is enough that one contains a point of detail absent from the other-. courts have held that inconsistent does not require actual conflict between present testimony and an earlier statement. but he suddenly proves unhelpful. The government calls Peter as its star witness. not necessarily to be cross-examinable about the events reported. He says he cannot remember making the statements. not necessarily what he told the grand jury. .any change between what was said before and what is said now that might bear on the case in some way seems inconsistency enough. • Does "inconsistent" reach only differences that seem the product of deliberate change of heart by the witness. Paul Barlow is tried on charges of racketeering and disrupting interstate commerce. At a grand jury proceeding. or also differences resulting from non-volitional changes of opinion. o In other words. perhaps brought on by changing recollection? o If inconsistent refers to deliberate change of heart. such as lying. Problem 4-A: "I Got Amnesia" In June 2007. He claims he had amnesia and that he was the victim of federal police abuse. which makes it easier to conclude that the present stance of the witness is inconsistent with his earlier stance. Lack of memory (even feigned) is not the standard form of inconsistency • However. something like this will not pass Crawford and would be exempt under the Sixth Amendment.• get something like this admitted. then genuine memory lapse does not pave the way for a prior positive statement. arising out of an armed robbery of Hilshire Farms. must often be considered as inconsistent testimony. though a lying claim of lack of memory does. Arguably the Rule is satisfied if Paul simply remembers going to the grand jury." or FRE 801(d)(1)(A) would fail in its purpose to protect against the turncoat witness. We only want to resort to using prior statements when we are trying to “ward off” the most serious evils. Paul is convicted and he appeals. • FRE 801(d)(1)(A) requires the witness to be cross-examinable about his prior statement. . o The real case: “A professed memory lapse . The un-remembering witness is hard to test by cross-questions. • The main justification for FRE 801(d)(1)(A) is that the speaker is now subject to cross about what he said before. Evidence Outline Page 71 . Peter testified that he and Paul and Zigler “cased” Hilshire farms a few days prior to the robbery. the rule is not as concerned with genuine memory lapses as it is with a lying witness. Did the court properly admit the grand jury testimony? The prosecution wants to classify these statements as being inconsistent.
Any “reliability flexibility” is suspect as to the Sixth Amendment requirements because of the SC’s conservative approach to the Sixth Amendment. you combined the reliability analysis under both. and responds willingly to questions. it was reliable under the Sixth Amendment. Therefore even though he is not able to answer questions.• • • • • • However. Today. In many cases in which the witness suffers a total memory loss concerning both the prior statement and its contents. the witness cannot be considered subject to cross examination. the jury in observing this scene has all the elements to decide what it needs to decide whether he is lying about not remembering his prior testimony. what it means to be “cross-examinable." But the fact that Paul "claimed no memory of giving the testimony" to the grand jury and no memory of "circumstances surrounding" that testimony could pose a problem. General Credibility Attack The only headway Barlow makes is that Breen answers questions relating to general credibility: He admits he's a lifelong burglar. However. The Supreme Court places a great deal of trust on (a) the jury's ability to see through the claims of memory loss and (b) the effect of the questions during crossexamination. If you take a strict view of the rule. • Now the issue of construing FRE 801(d)(1): The more natural reading of "subject to cross-examination concerning the statement" includes: o Ordinarily a witness is regarded as "subject to cross-examination" when he is placed on the stand. The Confrontation Clause and the Ability to Cross Examine In Owens. the court says the statements are “reliability” enough even though he technically is not being cross. this should not cut it. Paul’s lack of memory (or refusal to answer) is so complete that he was not really cross-examinable. but also need to pass the standard under the Confrontation Clause. under oath.” The real case: Lack of memory about "the subject matter" of the statement (robbery of Halsted Foods) "does not alone render him not subject to crossexamination. he's done soft drugs (valium) in the past while in a correctional facility. examined. Reliability is now not enough to satisfy our constitutional concerns. we only evaluate reliability under the rules. • All this goes to general credibility. We need the SC to tell us what they mean on this aspect of the Sixth Amendment. if it was reliable under the rules. the jury has all the elements it needs because this entire bizarre scene has played out in front of them and the jury can determine if he is lying This is sufficient “for reliability” because a jury can evaluate which statement to believe. the Supreme court rejected a constitutional confrontation challenge. you not only need to pass the reliability standard under the rules. and presumably suggests that his prior statement can be discounted in some measure. he's out of the racket and dependent on the government. he's still in trouble with the law. The SC has yet to tell us what this standard is. We do not know how this would fair under the 6th amendment analysis. Back in the day. It is highly likely the SC will need to re-evaluate this. In other words. Evidence Outline Page 72 . Now.
o You have to look at when the motivation to lie arises. prior consistent statements carry little rebuttal force when most other types of impeachment are involved. made by a declarant who testifies as a witness. • Here there is a (1) simple non-truth purpose of rehabilitation: consistency of her statements which bolster her credibility and counters the argument that she is fabricating and (2) a substantive use—the jury should believe the content of the statements (that the Dad beat the girl) • Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is. By contrast. It said the evidence was too unfairly prejudicial. o This has a high probative value and is highly reliable and therefore we should allow it to be admitted under the exception. ." • The question is whether out-of-court consistent statements made after the alleged fabrication. as a general matter. At issue is the interpretation of [FRE 801(d)(1)(B)] bearing upon the admissibility of statement. is often the very result sought to be produced by cross-examination. they are useless as to whether she is fabricating. influence or motive. • The court can still exclude the admittance under FRE 403 (which it did). They were offered to rebut an express charge against the declarant of recent fabrication. are admissible under the Rule. The fact that a jury will use the statements for their substantive value is very unfairly prejudicial. capable of direct and forceful refutation through introduction of out-of-court consistent statements that predate the alleged fabrication. B. • These statements passed muster under the rule because they met the express requirements of the rule—the statements were made prior to the formulation of a motive and were consistent with her testimony in court. or after the alleged improper influence or motive arose. Therefore. But that effect is not produced by the witness's assertion of memory loss -. that are consistent with the testimony and are offered to rebut a charge of a "recent fabrication or improper influence or motive. and can be effective in destroying the force of the prior statement.o The witness may undermine the process to such a degree that meaningful cross-examination within the intent of the rule no longer exists.which . If the statements were made after her motivation to lie arises. Prior Consistent Statement (FRE 801(d)(1)(B) Tome v. This is the way out for courts.S. Evidence Outline Page 73 . But this is considered an element under 801(d)(2)(B). o A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. the statements must predate the motive. • Common Law rule: The rebuttal is confined to those statements made before the fabrication or improper influence or motive arose. U. .
made during the existence of the relationship. Carter spoke to Esher after the fire and told him “The fire started in the shed when Dugan put a flaming welding torch on the ground too close to the fumes.” Carter raises a hearsay objection and Martin invokes the admissions doctrine. Admission by party-opponent (FRE 801(d)(2)(A) The statement made by a party being offered against that party by their opponent to prove the truth of the matter asserted. or biasness. Martin sues Carter. Should Carter’s statement come in? Forest: 1. This is hearsay because it is an out of court statement made by Carter (the declarant) to prove the truth of the matter asserted. the insurance adjuster.Two ways to interpret Tome: 1. and then it may be used to both rehabilitate and as substantive evidence under FRE 801(2)(1) (B). 2. Therefore you cannot use a prior consistent statement to refute claims of “lack of memory” or on attacks of character and veracity. saying that the fire started in the paint shed when Dugan put a flaming torch on the ground too close to the fumes. or • a statement by the party's agent or servant concerning a matter within the scope of the agency or employment. a fire consumed the premises and destroyed Martin’s truck.: that Martin caused Evidence Outline Page 74 . FRE 801(d)(2)(A) The statement is offered against a party and is • the party's own statement in either an individual or a representative capacity or • a statement of which the party has manifested an adoption or belief in its truth. or • a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Problem 4-B: Fire in the Warehouse Martin left his truck at Carter’s auto repair. A consistent statement must satisfy the premotive requirement if offered to refute a claim of influence or fabrication. (i. While it was in the shop. Relevance: Carter as owner of the automotive shop makes a damaging statement to his insurance adjuster Esher. You cannot use it for the general purpose of repairing credibility! C. but only if it is to be used as substantive evidence too. Martin calls Esher. or • a statement by a person authorized by the party to make a statement concerning the subject. 2. Thus Carter acknowledges both cause and negligence. As proof that Carter is negligent (because his employee Dugan caused the fire). Note: Tome (and the rule) is limited to using prior consistent statements to refute claims of improper motive or recent fabrication. A consistent statement must satisfy the premotive requirement if it is offered to refute a claim of improper influence or fabrication.e.
Personal knowledge is not required. FRE 801(d)(2)(A) is silent. • The statement gives an opinion/is too conclusory ("too close to the fumes"): Admissions are free of "the restrictive influences of the opinion rule. However. This argument won't fly: a "self-serving" statement fits the exception (the speaker cannot himself exclude what he said on ground that when he spoke he was trying to further his own interests). 3. the ACN rejects this objection: It endorses common law tradition. However." This is lay opinion and generally lay opinion is not allowed to be conclusory. A failure to anticipate the use to which a statement might later be put affects our sense of fairness. The facts suggest four arguments for exclusion (besides it being hearsay). Carter has no personal knowledge—he didn’t see it happen. 4. Cross Reference FRE 804(b)(3)—Statement Against Interest (however this is only available when the declarant is unavailable) Evidence Outline Page 75 . • The Speaker Lacks Personal Knowledge: [FRE 602] Problem is. because of the nature of the admissions doctrine. No guaranty of trustworthiness is required in an admission. noting that admissions are not subject to "the rule requiring firsthand knowledge. This concern simply doesn't count. This is an admission by a party opponent because it is the party’s own statement being offered against him by the Plaintiff. and they should all be rejected (separately and together). • The Statement was self-serving: (he wanted to collect insurance proceeds). • The speaker did not anticipate use of the statement against him: on this point. and here is a place where legislative silence is significant. and rejected his argument that it should have been excluded because he lacked personal knowledge. What the court actually did: It held that the statement by the defendant was admissible. but on facts such as these it is hard to imagine that the declarant was oblivious to the possibility of being sued.” This has been common law tradition forever—anything that comes out of the mouth of a party and is relevant to the case may be offered against them at trial for substantive legal process. The party who made the statement does have the right to be able to explain the statement. it does not matter if an admission is opinion. You can’t have it both ways—we don’t care why you made the statement. and that statements "against interest" are admissible against a party when "inconsistent" with his position at trial (the apparent assumption being that the statement here was against interest because it hurt declarant's position at trial).the fire which destroyed the truck) Because it is hearsay. You have the opportunity to explain yourself regarding anything relevant to the case you may have said. you need an exception.
it is inconceivable that a court would worry about the Evidence Outline Page 76 . Do the elements of the criminal offense to which he is pleading guilty and the elements of the tort crime in the civil case overlap? You need to see what statute he pleaded guilty to and compare the substantive language of the tort statute. The judge will likely ask the defendant if he understands that pleading guilty paves the way for conviction and waives his right to a trial by jury and will lead to sentencing. there are three serious issues and one “nonissue. a wealthy man named Ken had a convo in a bar with a waitress named Sally. They eventually went to Ken’s room and two days later Sally told police Ken sexually assaulted her.Problem 4-C: An Encounter Gone Bad While on a vacation in Co. who is represented from the beginning by a lawyer that he hires. Assuming that the defendant acquiesces on all these points. If Ken plea’s guilty to the sexual assault charges will this be a party admission in a civil suit resulting out of the same manner for damages? • A plea of guilty to criminal charges is an admission by the defendant that fits FRE 801(d)(2)(A) to the extent that defendant personally enters the plea or FRE 801(d)(2)(C) if the plea is entered on the defendant’s behalf by his attorney.” This is potentially an admission that can be used in the civil case. and you must be concerned about this as defense counsel. Cross Reference 609 (and the Liscomb case) 3. in which the concern is over confusing the issues or misleading the jury. It does not constitute an admission. you can argue that it is too weak to be applied in summary judgment and it must go to the jury. Here are your concerns: 1. However variations of the Alfred plea (where the D is offering another explanation) should be treated as an admission under 801(2)(2)(a). which are grounds of exclusion under FRE 403. Two pleas that are not admissible under 801(d)(2)(a) as admissions: • No lo contender pleas: I admit no liability. Plea: Sufficient overlap? Does the D’s act fit the language of the torts statute? Here you need to look at the statutory language. • Alfred pleas: the D says “I didn’t do it. the admission in entering the plea of guilty is admissible in the civil case. 2. and the judge will likely ask questions directing defendant’s attention to the occasion of the charged crime and will ask whether defendant engaged in sexual touching of the complaining witness without her consent. Plea: Failing to advise? In the setting of a well-healed defendant like Kenneth Brixton. but because the government can prove me guilty I will enter a plea of guilty so that I don’t get the worse penalty. however you can still argue that it should be thrown out at the FRE 403 stage and if that doesn’t work. Many times. The question of admitting or excluding the plea raises issues similar to those in Problem 2-E (The Exploding Gas Tank). the tort statute is broad enough to include the acts to which the D pleaded guilty under the criminal statutes. On the question whether such a plea and the accompanying statements should be admitted in a later civil suit. his plea of guilty is supported and will likely be admissible in the later civil suit. Plea: Undermined by statements? A defendant who pleads guilty must understand what he is doing.
Note: In traffic cases. and the consequences of failure so vital to the defendant that the practical and human limitations of the jury system cannot be ignored. George Bruton and William Evans were on trial for armed robbery.defendant’s awareness of the possible risks of using the criminal plea in the civil case. who stands accused side-by-side with the defendant are deliberately spread before the jury in a joint trial. • The appeals court reversed: “There are some contexts in which the risk that the jury will not. The authors explain specifically that the co-conspirator exception (FRE 801(d)(2) (E)) does not apply. the prosecutor has the option of trying codefendants separately Bruton v. • If a co-defendant admission is admitted into evidence. it is no longer protected by the FRE 410 privilege. or cannot . A statement made after the D is arrested is not in furtherance of the conspiracy and therefore it is not admissible as a co-conspirator admission under 801(d)(2)(e) New Vision About Limiting Instructions "The fact of the matter is that too often such admonition against misuse is Evidence Outline Page 77 . follow instructions is so great. Not only are the incriminations devastating to the defendant. • Here. FRE 410 only protects a FAILED plea bargain. The court said that limiting instructions suffice to protect one defendant from another’s confession. The lawyer must be concerned about his possible malpractice for failing so to advice the client about the implications of how this plea may be used in a civil case.” The trial court admitted the confession against Evans but said that it could not be admitted against Bruton. However. the powerfully incriminating extrajudicial statements of a codefendant. Therefore if a guilty plea is entered and accepted by the judge. o The statement was made after the arrest. U. there may not be harmful error if there is overwhelming independent evidence of guilt • Remember. They are not considered an admission of fault. The court is not required to warn a D that their plea may be used against them in a civil case. Are the statements in court excludable as plea bargaining? The answer is no. at least if the judge accepts the plea and it sticks. • It is very important in explaining that Evans' confession was not admissible against Bruton under any other exception. but their credibility is inevitably suspect. A postal inspector testified that Evans made an oral confession saying in effect that “Bruton committed the robbery. guilty pleas are generally not admissible. It is fully admissible under FRE801(d)(2)(a). both Bruton and Evans were convicted. 4. if one party’s admission may be inadmissible because of the unfair prejudice to the other party. General Rule: Jurors are presumed to be able and willing to follow their instructions. Confession by a co-defendant: • Confessions are unique in their devastating impact.S.
" • "The government should not have the windfall of having the jury be influenced by evidence against a defendant which. and the consequences of failure so vital to the defendant. each jury would separately hear the evidence admissible against only the defendant that it tries). While working one day. O’Brien sues Ace and Napton for personal injuries. Therefore.intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. (4) Impanel two juries (both to hear at the same time the evidence admissible against both defendants. A month later Ace fires Napton for reasons unrelated to the accident. It is just way too prejudicial. At trial. there are some contexts (ex: a co-defendant) in which the risk that the jury will not. follow instructions is so great." • This case is limited to this particular context—where a co-defendant admits on behalf of the other defendant. Ace objects saying it is inadmissible because Napton was not an employee then. Napton negligently runs over O’Brien. The gender rule does not apply to co-conspirator statements. Sixth Amendment Confrontation right: We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them. Evidence Outline Page 78 . if the co-defendant does not get on the stand. Problem 4-D: His Master's Car Napton works for Ace Building supplies. or cannot. When annotating FRE 105must put the general rule found in Delli Paoli! • Rule: A co-defendant admission may not be admitted in a trial. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. Possible Alternatives in Bruton: (1) Try Evans and Bruton separately (FRCP 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial. as a matter of law. than the 6th amendment rights of the non-confessing co-defendant is implicated. O’Brien offers Napton’s statement invoking the admissions doctrine. In co-defendant criminal trials you either sever the D’s or don’t use the admission. and the limiting instruction does not protect against the 6th amendment rights of the defendant. Are we destroying the Jury system? Are we assuming that jurors are incapable of following ANY instruction? As noted above.) (2) Redact the confession: possible but highly unlikely (3) Hope the confessing defendant X testifies and is subject to cross-examination by codefendant Y (then Y's confrontation (6th amendment) rights are satisfied). The general presumption is still that juries are able and willing to follow instructions. they should not consider but which they cannot put out of their minds. that the practical and human limitations of the jury system cannot be ignored. Six months later Napton tells O’Brien “the brakes on the truck failed” and “I was speeding” at the time of the accident.
which suggests that Ace did not properly maintain the truck. It is IRRELEVANT. The statement is relevant about ACE's respondeat superior liability. And a court in this setting will not likely bifurcate the proceedings. Napton was speeding. which would change the situation substantially). but it is hearsay and not subject to any of the 801(d)(2) exemptions.” The statement may only be used to establish Napton’s negligence.Constitutional Issue: Unlike Bruton. • Note however that in real life NAPTON is likely to WANT to testify about the brake failure as an Affirmative Defense against the complaint. • Second. you can find Ace negligent under the doctrine of respondent superior. Admissibility: The first statement should probably be excluded. and if you find Napton is negligent. and admissible against him as his own admission. but it is NOT admissible because it IS hearsay and ACE did not make the statement (no 801(d)(2)(A) admission) and NAPTON was not acting within the scope of his employment (he had been fired when he made the statements) (no 801(d)(2) (D)). (In your answer you must state you are working under the assumption that the applicable substantive law accepts the doctrine of respondent superior) Forest: Relevance: The admission[s] by Napton tends to prove two points relevant to the liability of both himself and Ace— • First. don't forget good old Due Process!! Answer: 1. There is no sixth amendment concern—therefore the whole “jury instruction rule does not apply. The statement regarding the brakes is likely to be fully EXCLUDED. “You should not use the statement by Napton to establish Ace’s negligence. and the second admitted under instructions requiring the jury to consider it only against Napton. and it does not advance O'Brien's case against Napton. when offered against the declarant NAPTON. the brakes failed suddenly. it has that tendency only because it suggests that Ace failed properly to maintain the truck -. It is incongruous to Evidence Outline Page 79 . thus being arguably irrelevant (though otherwise admissible) against him. assuming he owed no duty to the plaintiff regarding maintenance of the brakes. The statement about speeding is relevant against Napton. and thus inadmissible. But. It is likely to be admitted against NAPTON accompanied by a limiting instruction in favor of ACE (upon request). the Constitution has nothing to say because the confrontation clause applies only in criminal cases. 2. and perhaps a cross-claim against ACE.and it is inadmissible against Ace." Probably this statement should be excluded: It is inadmissible (though relevant) against Ace. • Napton: The brakes "just failed. which suggests directly that he is responsible and indirectly (through respondeat superior) that Ace is responsible. A problem with this argument is that Napton's statement about the brakes seems relevant to the O'Brien/Napton dispute because it helps Napton: Still. hence that Ace is responsible and Napton is not (it looks as though Napton had no prior warning that the truck was unsafe). The statement would be RELEVANT against ACE.
so the statements by Napton should be excluded as posing too great a risk of jury misuse ("unfair prejudice"). Napton's statements seem so important to O'Brien's claim that exclusion is unlikely. even where it appears unlikely that the jury can follow their directive. Relevance: Is the offered evidence relevant? [FRE 401] [FRE 402] In Mahlandt statements regarding how the child's wounds were inflicted were highly relevant. FRE 104(b)] In Mahlandt the court rules that the issue of foundation (does it meet the requirements of FRE 801(d)(2)(D)?) is for the court to decide. it is possible to take the position that no limiting instruction is necessary for Napton's second statement ("I was speeding"). joinder of claims against agent and principal is commonplace. though Ace is entitled under FRE 105 to a limiting instruction telling the jury not to consider the statement as evidence against Ace. Evidence Outline Page 80 . hence as evidence of Napton's negligence.argue that a statement that is admissible (competent) against Napton but not against Ace should be admitted because it helps Napton by hurting Ace. 2. the jury will only take the statement as proof of how fast Napton was driving (that is all it says). that has a strong tendency to show that fact of consequence (the wolf. possible. but the statement is highly probative as well. Respondeat Superior: Because the doctrine of respondeat superior means Ace is liable for torts by its agent Napton (assuming he acts in scope of employment). Even without an instruction. civil suits too can be severed for trial (see FRCP 42(b)). If the jury finds Napton negligent. There is prejudice. and 403 favors admissibility. Admissions by Employees & Agents Mahlandt Deconstructing Hearsay under Mahlandt using the forest: 1. and when he is found negligent Ace is on the hook. and severance for trial highly unusual. but unlikely. But unless other evidence of negligence is overwhelming." This statement by Napton is evidence that is relevant against both defendants (suggesting both Napton and Ace are liable to O'Brien). Preliminarily: is the question for the judge or for the jury? [FRE 104(a). No doubt it should be admitted against Napton. Evidential Hypothesis: If the party thinks and or states that the wolf bit the child. Limiting instructions are the most that Ace can expect. • Napton: "I was speeding. But where respondeat superior applies. Severance? Possible but unlikely: Like criminal cases. The statement is only evidence against Napton. But again the statement is only admissible (competent) against Napton. Limiting Instruction under FRE 105 More Likely: Limiting instructions are looked on more favorably than not admitting the statements. And of course Ace can argue under FRE 403 that limiting instructions will fail to work. then by operation of law (respondeat superior) Ace is responsible in damages to O'Brien. Exclusion under FRE 403: Again. along with the other matters.
" FRE 801(a). for business-related reasons--the classroom visits).which was under the control of the declarant-party-agent. i. despite being relevant. et seq. does the level of unfair prejudice justify exclusion. FRE 801(b).(c) definition of hearsay. etc. but not against the other. However. speaking generally. Therefore. Poos. the evidence is relevant and thus admissible under FRE 402. (c) Even though it fits the FRE 801(a). but highly unlikely. is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay"? [FRE 801(d)] In Mahlandt the court rules that the two statements by Mr. Only as to the minutes. 3. not against Mr. Government Employees: Traditionally statements by public employees have not been admissible against the government. But. 4.).(b)&(c)? In Mahlandt two were written (the note and the minutes) and one was an oral statement intended by the parties to convey the message "[we think that] the wolf bit the child. is it nevertheless within some exception found in the rules.. on the grounds that (1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have. Evidence Outline Page 81 . misleading. that the wolf bit the kid. in any case. admissible against one party. Should the offered evidence be excluded. AND despite it failing to be exempted by 801(d).(b).(b). the statements regarded matters within the scope of the employment (he is the wolf-keeper and the wolf was actually in his care in his own home. bit the child) more likely than not. and (2) agents cannot bind the sovereign. cumulative. because of the answer to the previous part.] [Presumptively Excludable FRE 802] (a) Does the evidence fit within the definition of hearsay of FRE 801(a). Poos is the declarant as to the first two.e. Is the offered evidence hearsay? [FRE 801. the other reasons for exclusion under FRE 403 are available under appropriate circumstances (confusion of the issue. probably the corporate secretary. (b) Even though it fits the 801(a). Mr.(c) definition of hearsay. a person prepared the minutes. and regardless of the answer to the hearsay question? [FRE 403] In Mahlandt the court notes that 403 exclusion is possible. forcing a party to explain its own words will almost NEVER rise to the level of unreasonable or unfair prejudice when you are applying the admissions doctrine. the author of the minutes. The minutes are authorized statements under FRE 801(d)(2)(C) but only admissible against the Center. 801(c). The effect of a limiting instruction [FRE 105] comes into play here to reduce unfairness. Poos fit within the language of FRE 801(d)(2)(D): They were made by an employee because Poos is employed by defendant (this appears to be uncontroverted here). especially FRE 803 and 804? In Mahlandt you do not need to reach this question. and they were made during a period when he was employed by defendant company. The statements were made by persons. The statements are being offered by the plaintiffs to prove the truth of the matter asserted.
Evidence Outline Page 82 . A kid walked by his house and allegedly got bit by the wolf. It is a statement made by an agent during the scope of the agency. however at trial the court excluded the following statements: • Statement 1: Within an hour after he arrived home. Mahlandt v. Facts: This is a civil action for damages arising out of an alleged attack by a wolf on a child. Therefore. • Note that BOTH Kenneth Poos AND his employer are parties to this action." so it does not matter that Poos apparently spoke as agent for the Center. FRE 801(d)(2)(A) permits use of a statement against the person who made it regardless whether he acts in "his individual or a representative capacity." o Oral assertion by declarant Poos that is being used to prove the child was bitten by the wolf. • Is there a reliability/trustworthiness component required by the rule? NO the ACN tells us. . The minutes of that meeting reflect that there was a "great deal of discussion . Poos left a note on Sexton’s (the president of the Research center) that “Sophie bit a child that came in our back yard.—That is what FRE 801(d)(2) is about. Mr. because of FRE 801(d)(2)(B). Mr. Are they admissible against the Research Center? Yes. you must distinguish admissibility against each of them. I need to convey what happened to you. As an employee. The main issue is the cause of the lacerations on the kid. The child and the wolf were in the same enclosure and there are 2 theories of what occurred—the child dragged himself under the fence which caused the scratches or the wolf caused the scratch. You must go to the common law of agency to determine that indeed. Are Mr. Poos’s statements admissible against Mr. Poos is the Director for the Research Center and he was keeping the wolf at his house in order to take the wolf to schools to show kids. and Mr. the admissions doctrine is unburdened by the reliability trustworthiness requirements such as having personal knowledge. However. . Poos told Mr. The jury brought in a verdict for the defense.However. an employee is an agent. the standard rule is that admissions by public employees should not be held against the government.” o Written assertion by declarant Poos that is being used to prove the child was bitten by the wolf • Statement 2: Later that day. there is a new line of cases that disagrees with this." o Written assertion by declarant Secretary of the organization who is acting on behalf of the corporation. Poos is an agent and therefore the statements are admissible against the company. Poos? • Clearly the statements by Kenneth Poos are admissible against him. Mr. about the legal aspects of the incident of Sophie biting the child. Poos was not present at that meeting. All has been taken care of. • Statement 3: A company meeting was held. Center A party to litigation should be required to explain thier own words in court. Sexton what had happened that "Sophie had bit a child.
FRE 403 Discretion There is left only the question of whether the trial court's rulings which excluded all three items of evidence are justified under Rule 403. The court rejects this argument. (See below. It is not required but you can use reliability factors at the FRE403 balancing stage. However. additional proof of agency is also required. Rule 403 does not warrant the exclusion of the evidence of Mr. Mr. The combination of lack of personal knowelge. AKA it should be mandated that when courts look at 801. Rogers says two things. a company’s statements cannot be used against the employee Reliability/Trustworthiness and the Admissions Doctrine Judge Weinstein thought there should be an implied condition of reliability or trustworthiness that we should read into the admissions doctrine.” They should only apply to third parties. Poos was not at the meeting and never said these statements. they determine if the statements are reliable and trustworthy. he was probably negligent (he was "distracted" at the time). (801(D)(2)(C) The admissibility of admissions is a one way street! Although statements of an individual employee can be used against the company. What about the meeting minutes? The minutes are admissible against the Center. the limited admissibility (it is only admissible against the corporation) and the repetitive nature of the statements all lean in favor of not allowing its admission because it has very little probative value. Can the driver's statement prove agency? Yes. Problem 4-G: I was on an errand for my boss: A truck driven by Rogers (an employee of Farm Right) got in an accident with Story and Rogers said “Sorry. It is possible to weigh this aka: it defeats its probative value if it is not highly reliable. Although this doesn’t matter under 801. The minutes have a low probative value.” The company is trying to say Rogers was not acting in the scope of his employee. But the limited admissibility of the corporate minutes. I was delivering for Farmright and I got distracted. Poos' statements as against himself or Wild Canid Survival and Research Center. we may find the reliability and reasonableness in FRE403. However the court objects this reasoning. Second.The defense tried to argue the admission of a third party does not account for statements made “in house. it certainly matters in determining the probative value. Rogers was acting in the scope of his employment: Evidence Outline Page 83 . (last statements) “The content of the statement may be considered but is not alone sufficient to establish agency. coupled with the repetitive nature of the evidence and the low probative value of the minute record. First. Inc.” Two Statements: In substance.) Although it is not mandated. Poos. The lack of personal knowledge matters here. he is employed for Farmright and was acting in the scope of his employment ("making a delivery") at the time of the accident. but they are not admissible as to Mr. all justify supporting the judgment of the trial court under Rule 403.
and the statement was made (2) during the course of the venture ("pendency" requirement) and (3) in furtherance thereof ("furtherance" requirement). One agrees to this through words. employee records show he was an employee. A conspiracy is an agreement between 2 or more people to commit a criminal offense. The negligence statement is admissible against the company both because of respondeat superior (which makes it relevant) and because of FRE 801(d)(2)(D). the truck Rogers was driving had a farm right sign on it. (1) it was given by an employee. • The jury will have to resolve the same issues in deciding the case on the merits. an informant for the FBI arranged to sell cocaine to Lonardo. Lonrado agreed that he would find individuals to distribute the drug. Bourjaly: Clarance.) The judge determines if there is agency.The Judge Decides: 104(a) The court has to find by a preponderance of the evidence that all the requirements imposed in the rule itself are met. and (3) the driver was then still employed by the company (unlikely he had been fired in the intervening 30 minutes). Bootstrapping element: independent evidence that can establish the predicate facts. We have to prove the declarants participation in the crime and then use that against others in the crime. Here. Rogers was negligent This statement does not assert a point that must be proved to make the statement admissible. Roger’s was wearing a farm right uniform. the predicate facts are that declarant was an agent of defendant speaking on matters within the scope of his duties. Co-Conspirator Statements Co-conspirator statements are admissible if (1) declarant and defendant conspired ("coventurer" requirement). The independent facts must be beyond the statement itself which show agency. the jury may still find the employee was not negligent and therefore the company is not negligent. This is only to determine admissibility (not fault. because there is enough evidence for the court to conclude that. If the judge decides the predicate facts against the plaintiff. The petitioner (Bourjaly) was charged with conspiring to distribute cocaine. They want to offer a phone conversation regarding Leonardo talking about the participation of a friend (who is Bourjaly) on the transaction. (2) about a matter within (he is a truck driver!). In this case. It is almost undoubtedly so there will be independent facts to establish agency. • Evidence Outline Page 84 . o They can consider the statement itself and other statements that support it. o The statement alone is not alone to establish agency and the statement will not be able to pass by the court. But almost all company’s have some sort of outside records of their employees.
he had $20. the statements are already considered reliable. it is in and of itself reliable enough. • The fact the petitioner went through all of the steps to obtain the cocain—he showed up to the hotel parking lot. Statements AND other Evidence = Conspiracy = Admissibility • Court did not decide in this case whether the courts below could have relied solely upon Lonardo's hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. • Malavet: I seems the amended language of 104(a) makes it clear that you need more than just the statements. • Even if out-of-court declarations by co-conspirators are presumptively unreliable. Reliability of Co-Conspirator Statements There is a rebuttable presumption of unreliability of co-conspirator statements. What Proof is Required to Meet the Preponderance Standard? (a) Independent evidence. etc. under Rule 104(a). trial courts must be permitted to evaluate these statements for Evidence Outline Page 85 . The government certainly put forth enough facts for the trial judge to find by a preponderance of the evidence that there was a conspiracy and petitioner participated in it. at the pre-arranged time. or (b) The statements themselves (which raises the bootstrapping problem) BOTH are required! • Statements themselves can be included. • In determining whether a conspiracy existed and whether the D was a member of the conspiracy. the declarant does not know this and this is considered part of the conspiracy. and that the statement was made "in the course and in furtherance of the conspiracy. The court applies a preponderance of the evidence standard. must be resolved by the court. • A co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy.000. • There must be evidence that there was a conspiracy involving the declarant and the nonoffering party. a court must be satisfied that the statement actually falls within the definition of the rule. By meeting the 801(e) prongs. if a person confesses to an undercover agent." o A statement made after arrest is not a conspiracy o However. but if you can meet all the co-conspirator requirements. the court can look at the independent evidence (evidence other than the statements sought to be admitted) to determine whether a conspiracy existed. • The existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that.Procedure for Co-Conspirator Statements Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E). but you can also use independent evidence of them in order to establish whether there was a conspiracy.
• • their evidentiary worth as revealed by the particular circumstances of the case. The furtherance requirement means that the statement seems to further the venture. but its admitting it would violate Bud's confrontation rights under Bruton. presumably from the perspective of the declarant. DEA Agent Don's Account of Arlen's Statements: Don's account of his conversation with Arlen (Bud's "gone south to make the buy") satisfies the furtherance requirement even though the statement destroyed the venture. Carol's Post-Arrest Admission: Carol's admission to arresting agents (implicating herself and claiming "Bud made the buy") raises the Bruton problem. If the opposing party is unsuccessful in keeping the evidence from the factfinder. Carrol and Arlen. They determine Bud will fly there with Carol and aquire the stuff while Arlen lines up the customers. subject to a motion to strike if the prosecutor fails to adduce independent evidence of the conspiracy. The statement is obviously admissible against her under FRE 801(d)(2)(A). When they arrive at the airport the DEA stops Carol and follows her. The coconspirator exception does not cover post-arrest confessions by one of several co-offenders. He is likely to make a preliminary finding that there is prima facie evidence of conspiracy (perhaps on the basis of a James hearing in which agents testify to the observed movements of the three defendants. Carrol then says “Bud acquired the cocaine and she was just helping him import it” Three Conversations: • testimony by Connie describing what Bud told her in the bar (Arlen "fronted us the buy money"). The agents arrest Bud. perhaps simply on the Evidence Outline Page 86 . he still has the opportunity to attack the probative value of the evidence as it relates to the substantive issue in the case. • testimony by Don describing what Arlen said (Bud's "gone south to make the buy") • testimony by the DEA agent describing what Carol told him ("Bud made the buy") Each conspirator is responsible for the statements of each other conspirator because those statements are admissible against all. The fact that it is uttered in the presence of an outsider (Connie) in casual conversation in a bar both point toward this conclusion. The coconspirator exception is “firmly enough rooted in or jurisprudence so that the Confrintation clause does not require an independent inquiry into reliability. Connie's statement in the bar: would likely be termed "mere narrative" because it does not advance the conspiracy. Problem 4-H: Drugs Across the Border Arlen and Bud decide to import Cocaine from Columbia. Procedure: • The judge is likely to admit statements.
Unavoidable absence. 3. But a serious illness of uncertain prognosis is likely to be enough. Lack of memory. In criminal cases. If asked by the defense. for "other reasonable means" may secure her presence. Death. The requirement is satisfied if his testimony is unobtainable. Refusal to testify. FRE 104(c). the judge will likely make a final decision under FRE 104(a) that Arlen. FRE 804(a)(2) contemplates actual refusal: On the stand. and Carol did indeed conspire in the drug business." A minor ailment from which speedy recovery is expected should not satisfy the requirement. Oversimplifying for the moment. In some settings. 4. Claim of privilege. even though the declarant cannot attend trial on a given day. meaning that the question is one of "admissibility" under FRE 104(a). Procedure: The trial judge determines whether the declarant is unavailable under FRE 804(a). 1. declarant declines to answer and does not cooperate when ordered to answer. or properly invoking a privilege. Context is important: 5. This includes refusing to testify. Occasionally courts expect parties simply to invite her to. and that Arlen's statement satisfies the pendency and furtherance requirements. 2. illness. Again. Unavailability of Declarant FRE 804 Unavailability as a witness does not mean the declarant must be physically unobtainable -hiding or beyond reach of subpoena. and will conclude that this evidence establishes the predicate facts by a preponderance of the evidence. In this situation it should be possible to adjourn the proceedings to allow time for recovery. the judge will base his decision on the "independent evidence" of the behavior of the three during the time. Bud. but the same is not always true of "illness or infirmity. infirmity." o Even a witness beyond reach of subpoena is not necessarily unavailable.• • basis of the prosecutor's assurance that evidence of that behavior will be adduced). Under FRE 804(a)(1) a declarant is unavailable if exempted from testifying by court order on ground of privilege. A declarant who testifies that he does not remember "the subject matter" of his prior statement is unavailable under FRE 804(a)(3). All of this occurs without the jury being present. attend. *** 6. often witnesses invoke the Fifth Amendment privilege against selfincrimination. Under FRE 804(a)(4). V. and Evidence Outline Page 87 . a declarant is unavailable under FRE 804(a)(5) if her presence cannot be obtained at trial by subpoena or "other reasonable means. determining unavailability due to death has not posed problems. mental condition makes a witness unavailable to testify even though the modern view is that insanity does not disqualify one from giving evidence.
” • The defense argues she is only unavailable because the government let her go. the government offers the deposition testimony because “Snell refused to come back. FRE 804 cannot be used because she is not unavailable. “If you give up and do not give reasonable efforts” then the court will not allow you to claim they are unavailable. and defense counsel attended but did not question Shell. Page Defendant claimed that the use of a transcript of a codefendant's preliminary hearing testimony in defendant's state trial deprived him of his federal constitutional right to confrontation. that she is a minor. too crucial of a witness to go forward without her.in the case of the government in criminal cases. Problem 4-L The government let her go Rick Masters is charged with importing cocaine when he and a 17 year old Australian named Snell are arrested as they arrive in Puerto Rico. Several weeks later the US attorney sought permission to take Shell’s deposition. • Government tries to argue. A party who procures the absence of a declarant should not be allowed to invoke one of the exceptions that absence normally brings into play. The confrontation clause’s object was to prevent depositions or ex parte proceedings from being used against prisoners in lieu of a personal examination and cross-examination of the witness in which the accused had an opportunity not only of testing the recollection and sifting the conscience of the witness. It is unlikely the government could have held her for a long time because it is very costly. depositions for use in trial are to be taken only in exceptional cases. • The deposition should probably be excluded. Snell was arrested and detained in an adult prison facility. Evidence Outline Page 88 . The government could have detained her or incarcerated her as a material witness so they could produce her at trial. promise they will not prosecute them. and it would have been difficult because she was a minor. In criminal cases. Barber v. but also of compelling him to stand face to face with the jury in order that they could look at him and judge his demeanor upon the stand. offer to cover their expenses. 7. it seems the girl is too central. The last sentence of FRE 804(a) so provides. Although she may be unavailable under the rule. at the 403 balancing stage. etc. The court permitted the deposition over defense objection. she is not a citizen. Procurement or wrongdoing. suggesting that she might return to Australia and it would be impossible to bring her back to testify against Masters. You have to make reasonable efforts—use the counselors in the foreign countries. though it is seldom invoked. She is a crucial witness. She incriminated Masters. she wasn’t charged with the crime. they called the embassy and she refuses to return. testifying that he hired me to carry the cocain which I was to turn over to him in exchange for $500 and my airline ticket to Australia when we arrived in Puerto Rico. Several weeks later at trial. you need her to be cross examined and her unavailability is only the responsibility of the government. and she gave a statement that lead to the indictment of Masters. talk to the parents if it is a minor. to offer to pay travel expenses.
preferably at trial. because the process of the trial court is of no force without the jurisdiction. and the party desiring his testimony is therefore helpless. the court will apply a strict definition of what the confrontation right is. • The right of the defense to cross examine. If there was a prior opportunity to cross examine and the attorneys failed to cross examine or chose not to. • The Barber court says the constitutional confrontation right is to cross examine the witness in front of a live jury at TRIAL. • Confrontation clause and Rule 804(a)(5) both require the good faith effort to find someone. • Other courts have also allowed the use of technological devises as an exception to the confrontation clause on a case-by-case basis. • There is also a case in Florida which allows the use of closed-circuit television. Confrontation entails live. NOTE: even if the P would have cross examined Woods at the preliminary hearing. It includes both the opportunity to cross examine and the occasion for the jury to weigh the demeanor of the witness. In this case. then it may be waived. Was the Defendant unavailable? The state made absolutely no effort to obtain the presence of Woods (the D) other than to ascertain he was in prison 225 miles away. The right to confrontation is a trial right. the courts have applied a very narrowly tailored exception to the confrontation clause that allows the victims to testify without seeing the defendenat. Waiver: The confrontation right can be waived if you chose not to cross examine when you have the opportunity to cross examine. the court will allow closed-circuit television or possibly the use of satellite dishes to cross examine the witness (and the confrontation clause will be met) In sexual assault situations. • An important public policy of protecting a witness (such as children) may justify the D’s right to face-to-face confrontation. If we have a showing of unavailability (which in this case we don’t) the court might be willing to consider testimony at a pre-trial hearing acceptable. With modern technology. Technology and the Confrontation Clause In narrow child assault cases. this still would not have met 6th amendment muster. • Evidence Outline Page 89 . in court testimony.The prosecution has an obligation to make good faith efforts to product the witness. Many commentators have held the mere absence of a witness from the jurisdiction is sufficient ground for dispensing with confrontation on the theory that it is impossible to compel his attendance. If the witness is not constitutionally shown to be unavailable. But a waiver has to be an intentional relinquishment or abandonment of a known right or privilege. • A witness is not unavailable for purposes of the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. this theory is no longer valid. the state authorities made no efforts to avail themselves of available means to secure Wood’s presence at trial. • The state made no such efforts here.
• In Coy. and  those subject to deferred cross-examination at trial because defendant can then question the witness about what he said before. and "testimonial" refers at least to statements to law enforcement officers describing crimes. but also to be in view of them. The Constitution as a Bar to the Admission of Hearsay The Confrontation Clause entitles the accused to be there when witnesses testify against him. ***Ohio v. Barber. Ohio v. • 6th Amendment/Hearsay Theories: o Production of Declarant (Roberts. and  that "a primary interest secured by [the provision] is the right of cross-examination. but has nothing to say about statements by people who are unavailable-whose presence or testimony the prosecutor cannot obtain. Crawford retains Production and rejects the Reliability prong from Ohio v. Roberts The Court has emphasized that the Confrontation Clause reflects  a preference for face-to-face confrontation at trial. • In the modern era." • If the Declarant is unavailable. and to cross-examine. Roberts and Barber adopted the Production and Reliability theories." similar to the factors underlying traditional hearsay exceptions. the Court held that the Clause entitles the defendant not only to be present. Roberts. It also adopts the Testimonial theory. o Testimonial (Crawford) Clause applies to "testimonial" statements (at least where the declarant cannot be cross-examined). and to see and hear the witnesses against him. It entitles the accused to be present and cross-examine witnesses who testify but does not stop the prosecutor from offering testimonial accounts of what others have said.VI. two decisions arrived o California v Green suggesting two kinds of statements pass muster  those subject to prior cross-examination because they were made in proceedings where defendant had a lawyer who tested them. o Minimalist: the clause speaks only to live testimony and has nothing to say about out-of court statements. (not present for cross-examination at trial) the Confrontation Clause normally requires a showing that he is Evidence Outline Page 90 . where the purpose is to aid in prosecuting or trying the alleged culprit. although concerns over reliability may be satisfied by circumstances similar to the ones associated with hearsay exceptions. o Dutton v Evans suggesting the Confrontation Clause is satisfied if a statement possesses "indicia of reliability. o Reliability of Statement (Roberts) The Clause sets a constitutional standard of reliability for hearsay offered against the accused. and reliability is unimportant (or less so) if the accused can crossexamine. Crawford) Requires the prosecutor to produce an available declarant in preference to his out-of-court statement.
Gets rid of reliability requirement: The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials. dying declarations. statements for medical diagnosis or treatment. • Exceptions labeled as "firmly rooted. and we. and  the defendant had had a prior opportunity for cross-examination.unavailable. Even then. the majority of people look to the government agent’s intent. business records. In other cases. However." by the Supreme Court or other appellate courts: Coconspirator statements. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. Production Theory: The admission of testimonial statements of a witness who did not appear at trial are not allowed unless  he was unavailable to testify. the evidence must be excluded. agent's admissions and public records. the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. When Declarant is Unavailable: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable. This is not to say you should not take into account the intent of the declarant. lack authority to replace it with one of our own devising. then the 6th amendment right is met. Testimonial statements: An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. and only where the defendant has had a prior opportunity to cross-examine. If the declarant is available for trial and the statement is testimonial." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. • Malavet thinks you should focus on the gathering authorities (government agent) intent in order to determine if the statement is testimonial. the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Washington The court rejected the view that the Confrontation Clause applies only to in-court testimony. no less than the state courts. Where testimonial statements are at issue. at least absent a showing of particularized guarantees of trustworthiness. If the Evidence Outline Page 91 . excited utterances. The only time the Confrontation Clause applies is when you are dealing with testimonial statements. his statement is admissible only if it bears adequate "indicia of reliability. When Declarant is Available: When the declarant appears for cross-examination at trial. The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. • Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Crawford v.
. Second." It is the testimonial character of the statement that separates it from other hearsay that. Roberts as a constitutional test for hearsay.” Crawford v. while subject to Evidence Outline Page 92 . 3. The caller spoke about events as they were actually occurring while facing an ongoing emergency. The statement identifying defendant during the 911 call was not "testimonial. to be confronted with the witnesses against him." The Court declined to relax the requirements in domestic violence cases but pointed out that the right to confrontation could be forfeited by wrongdoing. which produces testimonial statements (Hammon v. Davis illustrates the definition of "testimonial" statements in the context of police intervention by creating a continuum that goes from the initial management of an emergency. 2. Indiana). Davis does several important things: 1. the statements of the alleged victim were made in response to an officer's questions in a room away from defendant when there was no immediate threat to her person. Davis rules that the Sixth Amendment bar against the use of hearsay statements applies only to testimonial statements. rather than describing past events. 1. In this context. This completely overrules Ohio v.declarant is unavailable and the statement is testimonial. . but to describe circumstances requiring police assistance. to the interrogation of witnesses of a crime once law enforcement is in effective control of the scene. they did precisely what a witness did on direct examination and were inherently "testimonial. the accused shall enjoy the right . which does not produce testimonial statements (Davis v. First. the court also unanimously treats 911 operators as agents of law enforcement for sixth amendment purposes. The statements recounted past events. Washington). The elicited statements were necessary to resolve the emergency NOT to investigate events. Davis is the first important attempt by the Supreme Court to define the limits of Crawford. 2. Sixth Amendment provides: "In all criminal prosecutions. the D must have an ability to cross-examine the statements in order for the 6th amendment right to be met. Statements Subject to Cross-Examination Davis v." A 911 call was not designed to establish or prove past facts. Washington: this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify. and the defendant had had a prior opportunity for cross-examination. Washington The two cases required a determination of when statements made to law enforcement personnel during a 911 call or at a crime scene were "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause. In the other case. The purpose of the interrogation was investigatory.
both statements are relevant—they identify the assailant. Two steps 1. but to describe current circumstances requiring police assistance. Also. A solemn declarion or affirmation made for the purpose of establishing or proving some fact. is not subject to the Confrontation Clause. there was no immediate threat to anyone. Is it Constitutional? (Do these pieces of evidence comply with the 6th amendment) Davis: Sixth Amendment does not guarantee them anything--statements are not testimonial and Sixth Amendment doesn’t apply. Reliability ONLY SURVIVES AS a requirement of the rules not as a requirement of the sixth amendment. However once the police have the situation under control. the police’s main concern is the safety. When the officer arrived. in order to identify the perpetrator. her hearsay statements are admissible under FRE 803(1) or (2) -– excited utterance and present sense impression. Until law enforcement officers arrive on the scene.traditional limitations upon hearsay evidence. Examples” interrogations soley directed at establishing the facts of a past crime. and the initial interrogation conduicted in connection with a 911 call is ordinarily not designed primarily to “establish or prove some past fact. Hanna: Yes. and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. The judge seems to have a lot of discretion determining when something is non-testimonial and when something is testimonial. things were fine. There is no emergency in progress. her hearsay statements are admissible under 803(1) or (2)—excited utterance and present sense impression. WHAT IS HAPPENING-Not testimonial WHAT HAPPENED-testimonial Evidence Outline Page 93 . it is likely those statements will move out of the emergency exception. Malavet says the only critical difference is that the officers had not yet arrived. Is this admissible? 2. Is it constitutional? Is it Admissible? Davis: Yes. The court creates a continuum for the emergency doctrine—not every conversation between the police and a declarant will be considered testimonial. Hanna: Statements are testimonial Nontestimonial Statements: Statements made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Testimonial Statements: Statements when the circumstances objectively indicate that there is no such ongoing emergency. A 911 call.
events.E. This is a 104(a) question. you can provide exceptions for the child when they are testifying (such as closed-circuit television). whenever you are talking to the police. 2. You cannot exclude a child unless you have cause.E. the Sixth Amendment does not require courts to acquiesce. • Courts use a preponderance of the evidence standard to determine if the D has forfeited their 6th amendment confrontation right.E. In Craig Scalia says there is cause to make special accommodations for the children. Evidence Outline Page 94 . at least as a formal matter. the emergency is an exception.Health and statement of the victim and health and safety of the police officers and first responders. However. Defendant literally has nothing that he can test or challenge. but rather an attempt to pass the buck so that the defense must play “the heavy” and broach the subject that nobody wants to touch. she has given no evidence against the defendant. is excused. gives no substantive evidence. One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. The prosecutor’s polite litany of questions does not even show in any convincing way that T.E. First. D’s have a duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. and there is no occasion for the process of cross-examination to operate. Children and testifying Coy: Scalia says there is no blanket exception for children. prosecutor did not carry burdens. then there is FOREFEITRE and that constitutes a waiver of your 6th amendment objection. and running through the preliminaries of age and school grade and knowing truth from falsehood is not an attempt to get her testimony. the defense has nothing to test or challenge. there must be something to test or challenge. AKA you have to show EXIGENT CIRCUMSTANCES (emergency situations) Forfeiture Doctrine (FRE 804(b)(6) When defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims. she has said nothing about the offense and. • Forfetire is now controlled by the 2008 Giles case—if the prosecuter can show that the D or the objecting party is responsible for the absence of an absent witness AND the actions of the D were intended to prevent the testimony. or conditions described in them? NO—the defense did not waive their right to cross examination! 1. When T. Second. was abused. Where the court comes up with specific findings of traumatic events for the child. When a witness like T. Most of the time. you are going to be making testimonial statements. has forgotten what happened to her on the earlier occasion. which is whether T. Calling T. Problem 4-Q: "Your Witness" Does the defense have an opportunity for “full and effective cross-examination” under Green if the prosecutor calls the witness and does not broach with her either the prior statements that the prosecutor intends to use or the acts.E.
it makes the statements more reliable and is highly encouraged. reliability under the constitution no longer exists): 1. then the D must have an option to cross examine. Is the evidence useful? Evidence Outline Page 95 . and a nonopportunity cannot be viewed as an opportunity. defendants cannot afford to initiate challenges. 2. • For present-sense impressions. The independent evidence does not have to be admissible. Is independent evidence required? Do we need evidence independent of the evidence itself (the bootstrapping evidence). If the statements are testimonial. defendants cannot afford to challenge what has yet to be offered. Are the statements useful? Answer will always be Yes • Constitutional Analysis—focus on the subjective intent of the officer/gathering person to determine if statements are testimonial. Unrestricted Exceptions Analysis for 803 Rules • Relevance • Specific Rule of prohibition—FRE 801 (Hearsay) • What was said? (break up the statements—was there a 911 call? Then the police arrive.3. etc.) Discuss each statement separately and note the following: o Who was the declarant—note it does not matter if the declarant was available. or immediately thereafter. • Is it admissible under FRE 403? Present-Sense Impressions (FRE803(1)): a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition. The inadmissible independent evidence can support the admissibility of other things that the judge will admit under 104(a). but Malavet thinks the more independent evidence we have. o Are the elements of the FRE 803 rule met to see whether it falls within the exception—look to the subjective intent of the declarant o Is there independent evidence that supports the statements? Although this is not required. In cases like this one in which the witness/declarant has said nothing that goes to the merits. (Malavet thinks there should be independent evidence) There are independent facts which will not be admissible under 403. the more probative (reliable) and less prejudicial it becomes. It makes a real difference whether defendants are left to do all the heavy lifting. Third. But the independent evidence can be shown to the judge so the judge is more likely to admit the admissible statements. but the judge can still look at in determinging whether to admit. We do not. the availability of the delcarant is immaterial Reliability as a Requirement of the Rules (Remember. VII.
are free from the possibility of lapse of memory on the part of the declarant. it has a tendency to show that the boss was requiring him to come to work against his will. The allegation is that the employer forced the employee to go to work in spite of the employees illness where he was exposed to inclement weather which proximately caused his illness and eventually his death. • The court found the conversation tends to show that Nuttall was being forced to do something by somebody. (“I don’t want to go to work but I feel compelled to go because my employer is making me.) • Nuttall's state of mind established that his state of mind was induced by something his employer did. It makes the truth purpose likely true. testimony by the fireman about remarks Nuttall made in the trainyard on the day in question. Holding: Wife was permitted to testify to husband’s statements about being ill after conversation with boss as evidence that he was forced to work Florence Nuttall argued the court erred in the exclusion of the evidence. since made substantially at the time the event they described was perceived. Nuttal being offered to prove he was sick. because this goes to the reliability of the statement. And this contemporaneousness lessens the likelihood of conscious misrepresentation. Reading Co. two affidavits (one by Fireman John O'Hara. the employer knew he was sick. both of whom worked with Nuttall on the occasion in question). The "somebody" is identified without difficulty. This is hearsay.To the extent that we have independent evidence that confirms the content of the statement is that independent evidence useful/helpful? Generally the answer is yes. These statements are reliable because they were made at the very moment he heard what Marquette had to say and immediately thereafter. and the employer forced him to come to work. • The statements were made in circumstances which assure their trustworthiness. These are oral statements by Mr. Nuttall v. (It was obviously the employer. her own testimonial account of her husband's phone conversation with the yardmaster. • Here we also have a lot of independent evidence that contribute to the reliability of the statements. These statements are harmful error and are ground for reversal Mistakes on admissibility of evidence are almost inevitable during a hotly contested Evidence Outline Page 96 .”) • When a man talks as Nuttall did and acts as Nuttall did during and immediately following a conversation on the telephone with his boss. 2. including: 1. This conversation took place in the presence of his wife and at the end there was an additional statement made to her after he had hung up the receiver. • Such characterizations. Therefore we need an exception. and 3. Wife's Testimony Regarding Telephone Conversation Nuttal witnesses a telephone conversation between her husband and her husband’s employer and wishes to relay to the jury what she observed. the other by Conductor James Snyder.
NOTE: there is a growing body by law that says statements that are admissible under FRE803(a)(2) as excited utterances are inadmissible because they are testimonial and it is impossible to comply with the sixth amendment because they were received by the law enforcement or agents. v. • The statements to police after the D showed up on the scene—Tamica yells “That’s him. The officers never questioned her.” • As to the source of the state of mind/feeling compelled to go to work you need another rule. The police were not in effective control of the situation. that’s the one who pulled the gun on me. Excited Utterance (FRE803(2)): a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. they encountered a visibly shaken Tamica who explained she had just gotten in an argument with Arnold and that he threatened her with a gun. not the implied one. • The statements to police upon police arrival—when officers arrived on the scene.trial. Unless they seriously affect the case they are not a ground for reversal. At this point we still didn’t know where the D was and there was not effect control of the scene or the D. All three questions (1) fit under FRE 803(2)(excited utterance).) Here the assertion was “I am being forced to go to work. U. (2) have independent evidence that support the reliability of the statements made. and (3) are not testimonial under the constitutional analysis. At the rule stage in determining whether they fit the exception/their reliability— focus on the subjective intent of the declarant Ex: the declarant subjectively was under the stress an excitement of the situation and therefore uttered the words. There was still an unsecure scene. • Again availability of the declarant does not matter. But here the rejected evidence goes to the very heart of the plaintiffs case. Two exceptions apply to these statements: Nuttle’s own state of mind (I feel I am being compelled to go to work) under 803(3) and the source of his state of mind (the boss is compelling me to go to work) under 803(1). Arnold Three statements being challenged: • 911 call—Tamica called 911 and told the operator that Arnold had just threatened her with a gun.S. Evidence Outline Page 97 . At the constitutional state in determining if the statements were testimonial— focus on the subjective intent of the information gatherer. Here the need to show the reliability of the statements is even higher. • State of mind FRE 803(3) goes to what Nettle says he feels (it is the EXPRESSED assertion of the state of mind. That is why you need FRE 803(1)—that the boss was the source of the state of mind.” She obviously feels threatened at this point.
Usually we have independent proof of an exciting event -. courts have applied the requirement badly." To satisfy the exception. First. denying recovery in possibly deserving cases where a job situation makes firsthand evidence scarce is simply intolerable." • The dissent raises the concern that the uncorroborated content of an excited utterance should not be permitted by itself to establish the startling nature of an event. All three inquiries bear on "the ultimate question": Whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event. emotional. pain. you should try and have independent confirmation. The BOP is on the offering party to show the following: 1. a party must show three things. there must be an event startling enough to cause nervous excitement. We think this outcome is right for two reasons: 1." However. motive. The exception maybe based solely on "[t]estimony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotional[ly] upset. First. mental feeling. (Bootstrapping Issue) • The court applies an abuse-of-discretion review to a district court's application of the rule. or terms of declarant's will. 2. revocation. or physical condition (such as intent. Under FRE 803(2). and bodily health). 2. Bootstrapping Problem: Can a statement admitted as an excited utterance prove the happening of the event on which its own admissibility depends? You should be weary of not providing any independent evidence. the D was intending to gather information for trial.clinical evidence of ailment or injury. Second. 3. the statement must be made while the person is under the stress of the excitement caused by the event. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. a court may admit out-of-court statements for the truth of the matter asserted when they "relat[e] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." State of Mind (FRE 803(3)): then existing mental. Evidence Outline Page 98 . or lay observations of the speaker acting "out of sorts. design. Second. • There is no need to make a precise showing of the lapse of time between the startling event and the out-of-court statement. plan.Ex: when the police was asking what kind of gun the D had. Third. the statement must be made before there is time to contrive or misrepresent. identification. The ACN endorses rulings admitting statements where "the only evidence" of a startling event is "the content of the statement itself.
It is very easy to get this exception confused with a nontruth use that goes to the person’s motive, memory or belief, etc. • Ask yourself—Is the statement itself an assertion of the state of mind (ex: “I feel happy”)? If the content itself is an express assertion it is being offered to prove the truth of the matter asserted and therefore you need the FRE 803(3) assertion. • The use of statements that prove state of mind to infer that state of mind verses the use of statements that assert one thing, but from which we can infer state of mind. As formulated in FRE 803(3), the exception has four distinct uses: To prove • declarant's then-existing physical condition, • his then-existing mental or emotional condition, • his later conduct, and • facts about his will. Some states require the trial judge to exclude these statements where circumstances suggest insincerity. Other states hold truth or falsity of the statements is for the jury to determine, and a statement that falls within the exception is admissible without any preliminary finding of credibility by the judge. Then-Existing Physical Condition In personal injury suits, the exception is regularly invoked for statements describing aches and pains. The words must be describing how he feels as he talks. Then-Existing Mental or Emotional Condition Evidential Hypothesis: The statement (a) Infers or (b) asserts mental or emotional condition, AND that condition is itself an ultimate issue in the case. Problem with Fact-Laden Statements: often utterances indicating mental state are wholly or partially factual in nature. In what we can call "fact-laden statements," people may purposefully disclose state of mind by speaking in factual terms. Even if the statement is probative of state of mind, the entire statement usually includes some objectionable material or may be used by the jury for an impermissible purpose, which raises substantial 403 concerns. • Ex: “I am afraid of Bill because he said he was going to kill me and my family.” (underlined portion is the fact-laden statement.) • The first part (“I am afraid of Bill”) could be admitted under 803(3), however the facts lay an important problem because under 803(3), an existing mental state cannot be used to prove “facts remembered.” Therefore the second part must find another exception to come in under. Sometimes this could be 803(1) or another rule. • In the above example, the second clause could come in under the verbal acts doctrine if the act is an element of the crime such as extortion) Problem 4-J: He says he'll kill me The Declarant is dead. Consider the Statement:
Neff is after me again. He says he'll kill me and my family if I don't pay protection. I've already paid him $5,000, and I'm trying to steer clear of him, and I need help but I just don't know what to do. What does this statement say? Two ways to view this statement: 1. We can INFER Quade's state of mind from the statement, but the statement itself does not assert what Quade felt, which means that this does NOT fall under FRE 803(3), but is rather a non-truth/ nonhearsay use. 2. We might read it as necessarily implying fear (trying to steer clear of him, I need help), which would mean that we ARE offering it to prove the assertion ("I am afraid of Neff, because he threatened me"), which would then fall under FRE 803(3).
We can circumstantially infer that the statement necessarily implies…
403 Balance: Where a statement tends to prove both a relevant state of mind and damaging facts, the real question is whether the risk of unfair prejudice outweighs probative worth. • In an extortion case, where fear is an element of the crime, this statement is highly probative, but in a murder case, where Neff’s fear is not an element but only a fact having circumstantial relevance, the statement is not very probative. • Note, if the D was raising a defense of self defense, fear would become very probative and would become admissible. If D claims self-defense, fear on the part of the victim would tend to refute defense claims that the victim committed suicide. Consider the steps Minnesota Courts take in deciding whether to admit these types of statements in murder cases 1. The victim's state of mind must be a relevant issue. The victim's state of mind is generally relevant only where the defendant raises the defense of accident, suicide, or self-defense 2. The trial court must weigh the probative value of the evidence against the risk of unfair prejudice to the defendant. 3. A proper limiting instruction must be given to the jury. Subsequent Conduct Evidential Hypothesis: The statement either (a) infers or (b) asserts intent to do something AND it is offered to support the INFERENCE that the declarant in fact did the "something". What a person said is often admitted as proof of what she thereafter did (or did not do). Mutual Life v. Hillmon Defense is trying to argue that Mr. Hillmon is committing fraud on the insurance company (by faking his death so his wife can collect the proceeds of the life insurance policy.) • The question is, who died—Mr. Hillmon or Mr. Walters? The insurance co. is arguing Hillmon killed Walters so that people would think it was Hillmon who died, so that Ms. Hillmon could collect the money.
The defendants offered in evidence to show the dead person was Walters, not Hillmon. They present letters from Walters. In one, Walters wrote to his sister in Iowa that he intended "to leave Wichita on or about March 5th, with Mr. Hillmon.” In the other, Walters wrote to his fiancee in Iowa indicating his intent to leave Wichita "to see a part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends to start a sheep ranch [and has] promised me more wages than I could make at anything else." • The letters are being offered to prove (a) that Walters had the intent to travel with Hillmon and (b) that Walters in fact travelled with Hillmon. The "intent" proof today would be allowed by FRE 803(3) and the legitimate INFERENCE that he "travelled" would likewise be allowed and are not problematic issues. However, under the express language of FRE 803(3), "the person with whom I intend to travel is Hillmon" is admissible to prove that Walters believed he was travelling with Hillmon, but not to prove that he was in fact travelling with Hillmon, which is the real issue here. • However the court in Hillmon says it can be used to prove both! • We cannot infer someone else’s intent from the declarant’s statement. When you involve someone other than yourself in a statement of intent, that requires that you know or believe something that occurs prior to making the statement (which runs afoul to 803(3)). • Note that FRE 803(3) clearly would apply here, if it had been effect in 1892! Evidential hypothesis: The letters show Waters had the intention of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon. This makes it more likely Hillmon killed Waters in Crooked Creek. Holding: This case is troubling because the court states that the letters are evidence that Walters in fact left with Hillmon, rather than the narrower Walters left for on or about the date of the Hillmon/Walters death, and Walters believed his companion to be Hillmon. Hillmon Doctrine: when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act. It can also be used to show the intention of a third party. The statements can prove both the declrant’s intentions and the intentions of a third party (in this case, that HIllmon accompanied him). Today, under FRE 803, you cannot use intentions to show what a third party did! (Although the Pheester court would disagree!) U.S. v. Pheaster Larry disappears. Right before he disappears he has a conversation with Francine and Doug. Francine and Doug are permitted to testify to Larry's description of what he planned to do. Francine testifies that when Larry picked her up that evening he told her in substance that "he was going to meet Angelo at Sambo's North at 9:30 P.M." in order to "pick up a pound of marijuana that Angelo had promised him for free." Doug testifies that Larry "made similar statements to him in the afternoon
Other evidence from which the defendant’s guilt could be inferred. it is problematic to conclude the other person did that something. The testimony concerning the statements should be relevant and possess a high degree of trustworthiness (independent evidence of the content of the statement and the person’s involvement in the crime) In this case. Evidence Outline Page 102 . • In reality. • In order for this to occur.and early evening" and that on leaving the table "to go into the parking lot" Larry said "he was going to meet Angelo and he'd be right back. The declarant should be dead or otherwise unavailable 2. and (2) there is independent confirmation of this meeting occurring. • The fact that Larry’s statements can be used to prove that the meeting did occur raises a difficult interpretation of the rule. However.. the declarant should be dead or unavailable and the testimony concerning the statements should be relevant and posess a high degree of trustworthiness. 3. Malavet is skeptical of this! The nature of this case makes it particularly necessary to use hearsay. and she identifies defendant as that man. That is. NOTE: this interpretation of the rule seems to allow exactly what the rule prohibits —using the state of mind to prove pre-statement facts. Hillmon’s liberality in admitting statements proving intent to infer action by someone other than the declarant is still good law today. In applying the Hillman Doctrine to involve a third party there are factors which should be considered 1. Larry Adell's statements can be used to prove that the meeting with Inciso did occur. we are using larry’s statements to imply Angelo’s intention. (1) Larry is dead (unavailable declarant). Evidential Hypothesis The Government claims according to the Hillmon doctrine. Under the right circumstance. there was an overwhelming amount of independent evidence. the general rule—using someone’s statement of intent to prove action in conformity with that intent is perfectly acceptable. However. even under 803(3)." Francine also testifies that while with Larry on an earlier occasion she met a man named Angelo. a statement of intent can improve someone other than the involvement of the declarant. (such as independent evidence that Angelo was present at the meeting) Phester says Hillman part 2 at least in certain circumstances survives 803(3). Cases like this in fact allow such facts to be used (how did Larry know he was meeting Angelo—they would have had to have had a discussion prior to the statement). When the Declarant states intention to do something with another person. using someone’s statement as intent to prove a third party’s action is not allowed! Pheester is a narrowly crafted exception. • Under FRE 803. remember. using Larry’s statement of intent that Larry met with Angelo is unproblematic. the problem is when you use the statement to prove what a third party (Angelo) did.
(2) avoid needless consumption of time. permit inquiry into additional matters as if on direct examination. an adverse party. DIRECT AND CROSS EXAMINATION I. The court may. So. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. (b) Scope of cross-examination. (c) Leading questions. You should also give limiting instructions to as to proving pre-statement facts. interrogation may be by leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. And in the case of the expert witness: • Develops the basis of his expertise Only then does the focus shift to substantive matters Rule 611. even under FRE 803(3). The lawyer: • Develops background information about the witness. and (3) protect witnesses from harassment or undue embarrassment. When a party calls a hostile witness. • Places him at the scene and • Establishes the witness has personal knowledge. Ordinarily leading questions should be permitted on cross-examination. Hillmon's liberality in admitting statements proving intent to infer action by someone other than the declarant is still good law today. the limiting instruction does come in to explain how the jury should use the statement only inferentially against Inciso. (EX: “Isn’t it true that you were driving 35 mph?”) Evidence Outline Page 103 . The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth. Limiting Instruction: Larry's statements could be used to prove only what Larry did. in the exercise of discretion.FRE 803(3) is intended to overrule Hillmon. However. or a witness identified with an adverse party. • Direct examination means (for the most part) non-leading questions (FRE 611(c)). Mode and Order of Interrogation and Presentation (a) Control by court. but that the jury could infer from that that Inciso was there. partially. MECHANICS OF DIRECT AND CROSS Litigants ordinarily present testimony by means of direct examination.
When you refresh the witness’s recollection. 5. Exceptions to the rule against leading questions: 1. When the Rule is more trouble than it is worth. This could include former statements. uncomprehending. hence apprehensive. 4. however not when the witness is the attorney’s own client (or aligned with her client). or (d) infirm. 2. Cross Examination: FRE 611(c)(2) On cross examination. When the witness is uncooperative. you are reminding them of something they “know” (as opposed to putting words in their mouth). or unresponsive. and the bar against leading the witness on direct is not absolute. perhaps in a written statement or affidavit or in a deposition. or Evidence Outline Page 104 . Rule 612. ("refresh his recollection") Usually that means that the lawyer gently reminds the witness of something he has said before. reluctant. When necessary to develop testimony. When memory seems exhausted. (c) ignorant. and the attorney should not put words in his mouth or testify for him. but where the choice is to run the risks posed by this form of examination or to do without the knowledge of such witnesses. depositions." 3. (b) timid. and FRE 612 expressly recognizes this technique. (FRE 611(c)) This is normally used when a witness is (a) very young. FRE 611(c) also contemplates direct examination by leading questions when the witness is "hostile" or "an adverse party" or "identified with an adverse party. or confused. On preliminary matters. leading questions are allowed. etc. if a witness uses a writing to refresh memory for the purpose of testifying. Sometimes requiring non-leading questions on direct is simply not worth the trouble. leading questions save time and are allowed. Writing Used to Refresh Memory Except as otherwise provided in criminal proceedings by section 3500 of title 18. The same is true of matters that are not contested. reticent. either-(1) while testifying." o It is important to note. United States Code. or frightened. as happens when (for example) plaintiff in a civil case calls the defendant to testify and defense counsel then "cross-examines. Of course the danger of leading seems especially great for people of such description. for example. But the system is not rigid. that we cannot think of this in mechanical terms —it is the attorney’s relationship with the witness that determines if we should vary the “ordinary” rule that direct is by non-leading questions and cross is by leading questions. uncomprehending.The aim is to bring out what the witness has to say. These people could be the people most susceptible to be mislead. You may allow a witness to look at a document that they would normally be able to see or review before testifying. the risks become acceptable.
declaring a mistrial. The Prosecutor asks “what items have been taken from your house?” Ms. to inspect it. and order delivery of the remainder to the party entitled thereto. Note.(2) before testifying. The D has been arrested. to inspect it. Refreshing Recollection ex: Ms. at the common law you only waived the privilege if you used the document to refresh recollection at trial. o Congress left the task of deciding whether the privilege is waived for documents reviewed before trial on a case-by-case basis. If a writing is not produced or delivered pursuant to order under this rule. Therefore.) Oral communications will receive the most protection under either attorney-client or work-product privileges. G is the key witness. • • • When can a witness use a writing in aid of oral testimony? Witnesses are not supposed to read in court. o Courts must strike a balance between the competing interests of full disclosure and the maintenance of confidentiality for caseby-case determination. But this is unlikely to be a reasonable substitute in complex. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera. it seems the attorney should have to establish opposing witness relied on documents while giving his testimony or that these documents influenced his testimony. to overcome this protection. Two exceptions: 1. the court shall make any order justice requires. (One alternative to the FRE 612 argument would be to argue "necessity" under FRCP 26(b)(3).) The Rule is discretionary as to pre-testimony documents. the order shall be one striking the testimony or. Ms. to cross-examine the witness thereon. The purpose is to jog the independent memory of the witness so the writing itself does not have to be Evidence Outline Page 105 . document-intensive cases. • An adverse party is entitled to have the writing produced at the hearing. if the court in its discretion determines that the interests of justice so require. You can refresh the recollection with a writing. FRE 612 suggests you waive the privilege if you use it for “wood-shedding” (using it to prepare a witness for trial. to cross-examine the witness thereon. excise any portions not so related. G can’t remember (she is a forgetful witness). Generally documents used in preparation for trial would be protected under attorney client privilege or work product. this probably isn’t the best course of action. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. G’s house was burglarized. except that in criminal cases when the prosecution elects not to comply. You could ask a leading question. if the court in its discretion determines it is necessary in the interests of justice. and to introduce in evidence those portions which relate to the testimony of the witness. but if there are a lot of articles that were taken. and to introduce in evidence those portions which relate to the testimony of the witness. an adverse party is entitled to have the writing produced at the hearing. The witness must testify from the witnesses own contemporaneous recollection of the events.
In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. and the Raytheon defendants are entitled to know the content of that education. However. • These documents would ordinarily be subject to the work-product privilege. (4) must show the writing is reliable/accurate. we may authorize the production of privileged documents. he has waived the attorney-client privilege.e. (2) must show the writing was made by the witness (3) writing must be timely made by the witness/when the matter was fresh in the witnesses memory. privileges are waived when documents are used to prepare witnesses to testify. even though you have tried to refresh her recollection. 2. (5) witness must be unable to remember the details of the transaction. the writing itself will come into evidence. • In this case. In this case. (This is an exception to hearsay) Raytheon • The attorney compiled and organized various documents in a binder and showed them to his witnesses before the witness testified. • Opposing party then tries to claim that because the attorney showed this information to the witnesses. The writing itself does not go to the jury—it is simply read to the jury. The documents are also shown to the witnesses officers. • Does Rule 612 allow for the waiver of privilege? Court in this case said yes. under FRE 612. (2) Even if they are work-product. anything you use to refresh the recollection of the witness. Without reviewing those binders defendants' counsel cannot know or inquire into the extent to which the witnesses' testimony has been shaded by counsel's presentation of the factual background. Holding: • As to the first argument. the court held. Not all circuits follow the Raython case. There are courts that hold you need more than just the witness relying on the documents prior to their testimony (i. however is the privilege waived once the documents are showed to other witnesses (in this case Julian’s officers)? o Arguments FOR disclosure: (1) The documents are not work-product. according to FRE 612. court holds the documents are work product (FRCP 26(b)(3): The binder contains a small percentage of the extensive documents reviewed by plaintiff's counsel. Recorded Recollection: the witness cannot remember. • Plaintiff's counsel made a decision to educate their witnesses by supplying them with the binders.: that Evidence Outline Page 106 .reliable—you can use any writing to refresh the recollection of the witness. The waiver is triggered by the use of documents prior to testifying or use during testimony. You must lay the proper foundation (1) must show that at one time the witness had personal knowledge. opposing counsel is allowed to see it and use it in cross examination of the witness. • Production of a binder of materials prepared by counsel for the witness for purposes of review in preparation for his deposition testimony.
or (4) a person authorized by statute to be present. Malavet believes the opposing side must make a showing that the witness actually relied on those documents before they become discoverable.” II. • The case book thinks the AT&T case better interprets FRE 612—“while the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege. it is a better way to determine the truth. • Good cross examination will catch details in the witnesses testimony that are in conflict and within those conflicts. This rule does not authorize exclusion of (1) a party who is a natural person. 2. then you may see why the court ruled this way. but by showing and preparing your client you risk waiver. If you believe cross examination is extremely important.: the court waived the entire binder. (FRE 615) • This is so they will not tailor their testimony to what the others are saying. • A good attorney will use the contradictions in witness testimony to show the jury these inconsistencies are important: the jury is in a position of telling whether inconsistencies matter. Two arguments to this theory: 1. Although this court did not require it. or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney. it should not suffice itself for waiver of the work product privilege.merely reviewing the documents before trial does not suscept the documents to waiver).e. This could be a problem for your client. Court’s theory: The court ruling is only defensible if you want to put the proponent in a position to cross-examine the witness in the best way possible. "The Rule on Witnesses": Non-party witnesses should be excluded from the courtroom to prevent them from hearing each other's testimony. He says this rule is problematic because it seems there is a double standard--It is your duty to prepare your client and show them documents (under the model rules). Other courts say there must be reliance by the witness and some other independent waiver of the privilege. and it may make the order of its own motion. • This court also took an extremely broad view as what was waived—i. Case-book authors: Malavet believes that the only items which should be waived were the documents relied upon by the witness. (It is the State or the United States that is the party) How far does the rule extend? Evidence Outline Page 107 . Exclusion of Witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. • Crime victims are not parties—therefore they can be forced to be excluded. EXCLUDING WITNESSES Rule 615. or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
his attorney purchases transcripts of the trial. or otherwise finding out the substance of another witness' expected or actual testimony. • The attorneys are hereby enjoined from assisting a witness in obtaining information in violation of this order. subject to jury instruction that it should be Evidence Outline Page 108 . How should the court rule? Witnesses are hereby forbidden from: • Listening to another witness' testimony at trial. from talking to another witness who is sequestered.• • • • FRE 615 authorizes an order barring the use of daily transcripts—Cases have also construed the rule to authorize orders prohibiting one witness." • Question during cross examination: "Where were you in the garden. On a theoretical level. or directly to contradict. ***Note***: When a witness is found to have lied about something (or to have been mistaken about one fact) that does not require the automatic rejection of their entire testimony. or otherwise tailoring their testimony to fit with. in preparation for their testimony. However. or perhaps even from speaking to each other until after they testify at trial: because it keeps them from coordinating their stories. prior to giving their own testimony at trial. catching a witness in a lie is a very effective method of totally discrediting them. The alternatives are: -. it is unlikely the rule allows an order directing counsel not to convey to one witness the substance of testimony given by another. before they themselves testify. at the discretion of the Court -. Just before Norvick is to testify. after completing his testimony. It also authorizes the court to direct counsel not to convene meetings with several witnesses at once. Susanna and the Elders: (Why we have FRE 615!!) • Daniel said: "Separate these men and let me cross-examine them. support this generous construction. someone else's.The testimony may be admitted. Norvick is a key expert witness for the defense.Exclusion of the witness' testimony altogether. and he complies with an order to exclude all witnesses. what kind of tree were you standing under. FRE 615 authorizes the court to direct witnesses not to confer privately with one another. Malavet thinks that the court does have the authority to instruct counsel to refrain from conveying the testimony. But. Exxon presumes the attorney is going to use these to go over them with the witness and therefore they want to exclude Norvick from testifying. when you saw them together?" • The men both said a different tree • The story illustrates why we preclude witnesses from watching each other testify. Problem 7-A Daily Transcripts Exxon sues Mentor for patent infringement. However such orders would be difficult to enforce. • If the order is violated: Exclusion of the witness' testimony is NOT automatic.
An order to exclude a witness includes: • Physical exclusion • They cannot discuss with other witnesses what has been said in court • The lawyer or some other witness may not be used to describe to the witnesses content of what other witnesses have testified about. Prejudice must be found in order to justify both exclusion from trial or some other sanction. the expert in this case may be precluded from making any use of information obtained from the transcripts as the basis of his opinion. A blanket exclusion order bars use of daily transcripts to prepare witnesses: • The plain purpose of the order is to keep a witness from learning (before he testifies) the substance of other testimony in the case. although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court. would you disagree?"). while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct. • Forbidden from reading court transcripts Exclusion NOT Automatic • If a witness disobeys the order of withdrawal. • A blanket order also applies to experts who would or might be exempt under exception (3). Evidence Outline Page 109 . • It would be a poor argument to try and argue that the court only forbid counsel from listening to live testimony. will not be held to the same standard. • Counsel is assumed to know the principle behind the rule. "if expert X testified as follows. For example. he is not thereby disqualified. and/or. • How much prejudice is required? Compare one court who says "prejudice is presumed and reversal is required unless it is manifestly clear that the error was harmless or prosecutor proves harmless error by a preponderance” with defendant must show "probable prejudice or an abuse of discretion" when witness violates sequestration order and trial court lets him testify.weighed in light of their ill-gotten knowledge -. and the weight of authority is that he cannot be excluded on that ground merely. • Trying to get around the order by showing court transcripts to witnesses who have been ordered to sit out of the court room is cause for disbarment. Witnesses to the extent they might engage in their own conduct. The lawyers should not be able to get around the order in any way. • Modern authority makes it clear that violating a sequestration order does not automatically call for excluding the testimony of the witness. may not in any way comment on the testimony of other experts given at the trial (note that an expert would be allowed to answer questions such as.The witness may have their testimony limited. and to justify reversal when a sanction is not imposed.
they do not fit within existing Arkansas Rules exceptions. so they can pull police. under Utah law.616 Exclusion of witnesses. Examples of statutory exemptions: • 18 U. Accordingly.. So the victim isn’t accused of corroborating their story 2. The court reversed the judgment and remanded for a new trial. (ex: In criminal trials. everyone will know what to say. UNLESS the prosecution does not want them in the courtroom. An accountant may also be used in a complex white collar crime. because they will be in front of a new jury. §3510: provides that federal courts shall not exclude "any victim of an offense" from a trial merely because he may testify during sentencing. Answer: We find appellant has demonstrated prejudice. However. • Florida goes farther: Fla. Why would the prosecutor want to waive the privilege of the witness staying in the court room: 1. at the retrial. if the prosecution needs someone to assist them in the coordination of witnesses. • Naturally. if you are a prosecutor of a large complex case. It illustrates the need for the witness-exclusion rule to prevent the possibility of any of the victim's daughters from shaping her testimony to that of a preceding witness. you may have a law enforcement official or someone else that would be allowed to stay in and hear the case to help you and assist you. They may become intimidated to go on the stand by watching the case 3."Essential to the presentation" of a cause (FRE 615[B](3)] • Also exempt from exclusion by FRE 615(3) is a person shown to be "essential to the presentation" of a cause. i. investigative agents (such as police) generally qualify for this exception. they will be allowed to stay in the court the whole time. they cannot be excluded from the courtroom during testimony. • This exception includes an expert or an investigating official Problem 7-B : The Sisters In this case. FBI lab technicians.C. the women are the daughters of the victim and thus they are neither the "victim" nor the parents of a minor who is a victim. Evidence Code § 90. In other words. the victim's next of kin.S.e. It is anyone that is essential to the case to help the attorney in the case. Note. ) • Therefore. or a lawful representative of such Evidence Outline Page 110 . etc. the possibility of prejudice won’t be as strong. • It seems like there are a variety of people who can be certified to stay in court under this provision. the victim of the crime. So you might ask yourselves if the remedy of remanding for a new trial is in fact adequate. They may want the jury to show their emotion. (d) In a criminal case. a victim is subject to a statutory exemption from the Rule on Witnesses. only when it is absolutely necessary. the parent or guardian of a minor child victim.
or that he does not understand the duty to testify truthfully. The presumption of competency must be overcome by the objecting party (who is seeking to exclude the testimony. Examples: o mental incapacity. the following are allowed to be witnesses: o Religious Affiliation does not matter o Infants: There is no set age where a child witness is automatically declared incompetent. o religious beliefs (limited by FRE 610) o criminal convictions. o interested persons. the most knowledgeable people could not testify. The common law imposed a number of disabilities that rendered many potential witnesses incompetent to testify in court. These now become areas you can ask on cross for impeachment purposes. • The objecting party bears the burden of proof showing the witness is incompetent. Witness does not have personal knowledge of the matters about which he is to testify (witness observed something) Evidence Outline Page 111 . COMPETANCY OF A WITNESS I. unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify. Often in fact.person. upon motion. the court determines such person's presence to be prejudicial. they are considered competent on the issue o Conviction of crime: even if it is perjury o Interested parties are not automatically disqualified Presumption of Competency Every witness is presumed competent to testify. o spouses • Therefore. o Insane People: as long as the insane witness can give testimony on the narrow issue before the court. PRESUMPTION OF COMPETENCY Common law rule verses Modern Evidence Rules One of the striking contrasts between the early common law and modern rules of evidence is in the area of competency of witnesses. under FRE 601. • What used to be an automatic disqualification of a witness now becomes inquiry regarding impeachment. that he does not have the capacity to recall. unless.) • Three elements that must be shown by the objecting party to exclude the testimony 1.
as unfairly prejudicial. as lacking in current personal knowledge under FRE 602.• • • 2. and that he could communicate what he saw. in order to get the decision reversed or a new trial. that he understood the oath. • The district judge chose not to conduct an in camera examination of McDuffie. Witness does not have the capacity to recall (witness can remember what he observed and can communicate what he observed) 3. Lightly Is a person who is legally-determined to be criminally insane qualified to testify? Lightly is being charged with assault on McKinley. (this would potentially exonerate Lightly) • The trial court ruled McDuffie incompetent to testify because he had been found to be criminally insane and incompetent to stand trial. the party must show there was harmful error! U. This must occur when the person is being offered as a witness. and was subject to hallucinations. • Excluding McDuffie's testimony was not harmless error—the potential testimony would have substantially corroborated Lightly's testimony. misleading. • The court should have made a finding as to whether the witness was competent at the time the witness testified. or as contrary to the interests protected by FRE 611(a).e. or confusing under FRE 403. Witness does not understand the duty to testify truthfully (witness must demonstrate an appreciation to tell the truth (the oath or affirmation)) Under the federal rules. If a court finds that a witness is incompetent to testify and therefore does not allow them to testify. these things boil down to two main qualifications for a witness—(1) the witness must have personal knowledge and (2) the witness must take the oath or affirmation. • The testimony of McDuffie's treating physician indicated that McDuffie had a sufficient memory. Notes: • In extreme cases of mental impairment. courts may exclude the testimony as irrelevant under FRE 401. it was clearly improper for the court to disqualify McDuffie from testifying (without first finding he was incompetent at the time of trial). • When the mental capacity of a proposed witness is questioned. v.: whether they are qualified to be a witness) under FRE 104(a). However. However he must use due care.S. The court decides if the witness is competent (i. The defense attempted to have McDuffie testify. However. McDuffie would have testified that only he and not Lightly had assaulted McKinley. the trial judge does have authority to order a psychiatric examination. Evidence Outline Page 112 . the court did not engage in finding whether he was competent. the jury decides whether the personal knowledge requirement is satisfied under FRE 104(b). The Appeals court found this to be an error and that Lightly is entitled to a new trial. On this record.
However. . It is important to recognize in this case the D was a pro-se litigant (Did not have an attorney to explain the importance of an oath) and he was distrustful of government and does not respect the sovereign authority of the state. I will not tell a lie. I agree to testify under penalty of perjury. YOU CANNOT TESTIFY! You are required to take the oath. Courts are flexible in allowing a witness to have a subjective understanding that you are willing to tell the truth—the specific wording is not provided. COMPETENCY OF CHILDREN Evidence Outline Page 113 . Ex of affirmation: I understand that I must tell the truth. OATH AND AFFIRMATION As a witness. because he fails to acknowledge a legal obligation to tell the truth. every witness shall be required to declare that he will testify truthfully. • If you refuse to take the oath. there may be certain reasons for refusing to swear or to affirm that might make sense. at least to the witness. The purpose of the oath or affirmation: (1) To establish that the witness understands the obligation to tell the truth during testimony and (2) To subject them to perjury prosecutions for failing to testify truthfully. . Ex of something that will not be affirmation: “I am a truthful man. I understand that if I testify falsely I may be subject to criminal prosecution. you must be voluntarily willing and able to take an oath! If you fail FRE 603 (not taking an oath). Fowler Fowler refused to either swear or affirm that he would tell the truth or submit to cross-examination. For example: • Some religious persons might refuse to take a religious oath in a non religious context. • Other people might object to an oath or affirmation before a particular court for political reasons. is clear and simple: "Before testifying.II. U. Rule 603. you can be precluded from testifying. and you can also be held in contempt for doing so. v.” There is a problem here. by oath or affirmation . you are allowed to take an affirmation." No witness has the right to testify but on penalty of perjury and subject to cross-examination. • Affirmation: Differs from an oath by eliminating reference to swearing and to divine power. Difference between oath and affirmation: (FRE 603) • Oath: the traditional saying: … “So help me God!” on the bible. and it usually is just plain stupid.S. etc. For religious. reasons. Federal Rules of Evidence. or non-religious. Refusing to take an oath in a case might appear quite self-destructive. III.
An adult would be required to understand perjury. In that context. a child is not expected to know what perjury is. highly probative. This was a sufficient affirmation. Stat.• • • • Children have a Qualified presumption of competence: there is a presumption of competency. • Before testifying. but this presumption only kicks in after a showing (in voire dire) that the child is competent. She testified further that if you tell a lie you sometimes get a spanking. where the child is not as long as the child knows the difference between lying and truth telling. Rickets v. that a lie was a thing that is not true. the issue of child competency usually arises in the context of allegations that the child has been the victim of a horrible act either in a criminal prosecution or in child-custody or civil tort litigation. She also promised to tell the truth about everything that she was asked in court. (In NY it is 12) Florida: • Florida has adopted the modern view. the witness indicated that she was not sure what heaven was. Delaware This is an appeal from a conviction of first degree rape of a five year old girl. • In Florida the judge has an express obligation to protect the child witness. then six years old. which was the only test of competency. ( Fla. • Sadly. she knew the difference between truth and falsehood. it is now the opposing party’s burden to show the child is not qualified to be a witness. the trial court did not err in permitting the child to testify. There is a presumption a child needs protection when they are younger than 14. A lesser showing of capacity is required. and children under 16. After the presumption kicks in. 92. and that it was a bad thing to tell a lie. however they do need to know the difference between the truth and a lie.55) Note that Florida does distinguish between minors (under 18). sec. and children under 14. A number of states do not follow the qualified presumption approach and continue to presume incompetency of children below a certain age. The offering party must justify the qualified presumption showing the child understands their obligation to tell the truth. In other words. a voir dire examination was conducted during which the child stated that she went to church. Here the court has to balance the rights of confrontation Evidence Outline Page 114 . although she did not understand the concept of perjury. The sole issue is whether the trial court committed reversible error in allowing the minor victim. This same standard may be used for adults who have mental incapacity. the testimony may be highly relevant and. and has created a thorough scheme to allow children to testify and to protect them when they do. in response to questions by the defense attorney and the court. The court found that under Rules 601 and 603 of the Delaware Rules of Evidence. to testify without an adequate foundation to determine her competency as a witness. However. • The court ruled that the child was competent to testify because. • The child only needs a lesser showing of competency. at least potentially.
Children deserve a certain level of protection that we do not give other witnesses. Evidence Outline Page 115 . or (3) describing something they watched on Springer without understanding what it means or the real implications of the testimony The lesser standard we apply to children and the Sixth Amendment: Sixth Amendment entitles. the D to cross examine the witness against him. the horrible acts of which they were victims. The statute still exists in about half of state jurisdictions and because it can apply in federal court because of the express language of FRE 601 (in diversity suits that use state law/Eerie doctrine) • An interested witness cannot testify as to a transaction with a party who is now deceased. However we are willing to compromise the D’s constitutional rights as to children. • Ex: The D dies before trial. which entitles a D’s ability to cross examine a witness in a civil case. However. this SC would probably not find adult witnesses should be allowed to testify under such circumstances. This is not as strict as the Sixth Amendment. as best they can. including not requiring the physical presence of the D and closed circuit testimony. • As to adult witnesses. You can see the clear conflict with the D’s Sixth Amendment rights.against trauma to the witness. The survivor (who is bringing the claim) cannot rectify because we are afraid he will lie because he won’t be contradicted. NOTE: The Sixth Amendment only applies to criminal cases. SPECIAL CASES & JURY MISTAKE/MISCONDUCT Dead Man’s Statute: This is one exception where an interested party is automatically disqualified. • Rationale for statute is fear of perjury—the interested survivor cannot testify for his interest against the decedent or the decedent’s representatives about communications or transactions with the decedent in a civil case unless there is a waiver. in a civil case you would refer to the Due Process Clause of the 5th Amendment. if a witnesses capacity is lessened (such as a child) then the ability to answer cross examination questions is lessoned. among other things. However. Child witnesses (when they were the victims of sexual assault) may be allowed to testify in ways that reduce the trauma. Ultimately we have to establish if the child is: (1) describing. This basically means the Trier of fact can render a decision without hearing either side! Lawyers as Witnesses: This is more of a PR issue than an evidence issue. (2) reciting what adults intentionally or unintentionally programmed them to say. but it is still in existence and it is still a right! IV. We allow a higher level of protection for the child. • The SC accepts the notion of the reduced capacity for children and has found it to be consistent with the Sixth Amendment. in a criminal case. This exception has been limited to children in sexual assault cases.
reversible error. the opposing party shall be afforded an opportunity to object out of the presence of the jury. Rule 606. Competency of Juror as Witness (a) At the trial. After the jury has returned a verdict. In other words. power and duty to make factual determinations. the court can look into this o Voire dire is the entire scheme to evaluate the capability of a jury. the common law did not consider a judge incompetent to testify in a trial over which the judge was presiding. FRE 605 is explicit in making this one of the few federal grounds of incompetency. (2) whether any outside influence was improperly brought to bear upon any juror. there must be a showing of gross incompetency by the jury. Evidence Outline Page 116 . (b) Inquiry into validity of verdict or indictment. • If you want to catch juror incompetence. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. they cannot testify to the effect these facts had on rendering the decision. o If misconduct is brought to the courts attention before the verdict is rendered. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention. or (3) whether there was a mistake in entering the verdict onto the verdict form. FRE 606 flatly prohibits the admission of juror testimony to impeach a jury verdict. • Exceptions—A juror can testify to these matters: (1) "extraneous influence" which influenced the jury may be testified to. If the juror is called so to testify. • If a court concludes there is a showing of one of the exceptions that impacted the jury’s decision. • In such cases. a juror can only testify to the fact certain facts were heard. Upon an inquiry into the validity of a verdict or indictment. you need to find juror incompetence during the voire dire process. We entrust to the jury the obligation. We trust them so much.Judges as Witnesses: Somewhat surprisingly. (2) outside influence or (3) mistake. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. you have to meet the above standard. • Nonetheless. that we are not allowed to get into how they make their decisions. FRE 606(a) prohibits testimony by that juror before the jury panel on which he serves. Jurors as Witnesses & Jury Mistake/Misconduct • Today the issue rarely arises because jurors who might be called as witnesses are usually identified in voir dire and excused from serving. 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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.
We have a public trial. It is very difficult for someone in the court room not to notice the jury “if it was a general problem.”
Problem 6-A “Outside Influence” In a criminal prosecution, a juror is caught reading the newspaper which had accounts of the trial and discussed those accounts with others at lunch. The judge also hears that an associate of the defendant talked with the jury outside of the court and offered what may have been a bribe. During a recess in trial, after jurors had been excused, the judge questions the juror about both matters. Does FRE 606(a) bar such inquiry? Answer: This examination of the juror regarding matters that occurred prior to jury deliberations is not barred by FRE 606(a). The witness, even though a member of the jury, is not testifying "as a witness before that jury in the trial of the case in which he is sitting as a juror as long as the testimony is taken without the jury being present." • But in any case, the juror may be questioned during the trial regarding jury misconduct and that subject-matter of questioning is not barred by 606(a). • Note further that the inquiry is also not barred by 606(b), since 606(b) only kicks in after the verdict is rendered. • If the sitting juror's substantive testimony is actually needed, one possibility would be to excuse them from the jury, and allow them to testify, provided that enough jurors remain to render a proper verdict. • 606(b) does not forbid the "polling" of the jury, i.e., asking them if the verdict that has been read is in fact their unanimous verdict. But questions after the reading of the verdict generally fall within the language of the Rule, which precludes the official questioning of the jury or use of their written statements. • After the verdict is rendered, it is not unethical for counsel informally to interview the jury. You may even want to do so simply to learn what works and what does not. However, such questioning is increasingly being prohibited by statute or local court rules. Tanner v. U.S. Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial. Several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons. • The court is taking as skeptical view of the facts—there are important policy reasons for 606(b). We have a perfectly good remedy. If things are as bad as people say, don’t you think someone would have said something DURING the trial and not 5 days after the verdict was rendered! If someone would have brought this to the court’s attention during trial, it would have been fine! The jurors could have been questioned under oath, and if believed all of these people were doing drugs or were intoxicated, the court would have declared a mistrial. • The District Court concluded that juror testimony on intoxication was inadmissible under FRE 606(b) to impeach the jury's verdict.
The District Court invited petitioners to call any non-juror witnesses, such as courtroom personnel, in support of the motion for new trial.
The near-universal and firmly established common-law rule in the United States flatly prohibits the admission of juror testimony to impeach a jury verdict. • Exceptions to the common-law rule are recognized only in situations in which an "extraneous influence" was alleged to have affected the jury. • Allegations of the physical or mental incompetence of a juror is "internal" rather than "external" matters and therefore not admissible to impeach juror testimony. • Drugs or alcohol voluntarily ingested by a juror is by no means an outside influence. • Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion in the jury room is encouraged—jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of post verdict scrutiny of internal juror conduct. • Even if the court did conclude this was an external matter, the court did not think the petitioner’s met the standard. Gross or extreme incompetency (certified insanity): There has to be an extreme showing of gross incompetency by the jury. (Malavet could not even think of something that would fit into this) This is the only exception to 606(b). • The allegations did not suffice to bring this case under the common-law exception allowing post verdict inquiry when an extremely strong showing of incompetency has been made. Sixth Amendment Implications: The Sixth and Fifth Amendment give you an entitlement to a rational process. This Court has recognized that a defendant has a right to "a tribunal both impartial and mentally competent to afford a hearing.” However the court did not err in deciding that an additional post-verdict evidentiary hearing was unnecessary. • The lesson to be learned here is that you must catch these things as they occur. The trial court is much more likely to grant a mistrial under circumstances like this, than to grant a new trial when matters come out after the verdict. That is just the way things are. The Situations From Hell: 1. Tossing the Coin: Jury flips of a coin to decide the verdict (manner of reaching a verdict, therefore jury cannot testify to this after the verdict has been rendered) • A strong argument can be made that even the toss of the coin is a "manner of reaching the verdict" question and, thus, that inquiry into it by juror testimony or affidavits is barred by FRE 606(b). • Commentators have argued that such a method of reaching a verdict constitutes a "denial of a rational process" and is thus subject to inquiry,
and that flipping a coin is arguably the introduction of "extraneous" information into the jury room. • But, scary as this thought is, Malavet thinks that the express language of the Rule may in fact preclude jury testimony or affidavits to prove this, although I certainly think that any rational court would grant a new trial upon hearing of such an occurrence. 2. Racisim: Some courts have ruled that bias cannot be explored through postverdict juror testimony or affidavits, but others hold that bias can be considered an "outside influence" and thus properly inquired into under FRE 606(b). • You cannot use jury testimony after the verdict to show someone was racist. However if after trial, someone does acts that shows he is a racist, you can use this as evidence to show a jury member lied during voir dire and this will be grounds for a new trial. 3. Knowledge which is not within the common knowledge of jurors. Extraneous prejudicial information. When one juror knows something other jurors do not. Grounds for reversal of the jury verdict that fall completely outside of FRE 606(b): • Failure to follow instructions, although this cannot be proved by jury testimony or affidavits, but may be inferred by the court in granting a new trial motion. (See problem C) • Knowledge and opinion which are beyond the lay knowledge and considered expert. This is not “acceptable knowledge in a jury room.” Problem 6-B “Refusal to take the stand” Atkins is convicted of unlawful possession of narcotics at a trial in which he did not testify to his own defense. A week after trial, the judge receives a letter from a juror that says the jury violated the judges instructions because it considered Adkin’s refusal to take the stand as an admission of guilt. May the juror be called to testify on the letter? Answer: Under both prior federal law and FRE 606(b), evidence is generally excluded that one or more jurors ignored or misunderstood the instructions of the court. Courts have also refused to receive evidence that one or more jurors held it against the accused that he failed to take the stand. This is internal to the jury. • The letter also may not be received. The last sentence of FRE 606(b) excludes affidavits or other evidence of any statement by a juror about which he would be precluded from testifying. • However, if other evidence shows that jurors ignored the instructions, then that may provide the basis for reversal. You cannot admit internal views of the jury after the verdict has been rendered. • It is important to realize that if this information would have been determined and brought to the court’s attention prior to the rendering of the verdict, the judge could have questioned the jury about it and possibly declared a mistrial. Problem 6-C “ The $800,000 Jury Error”
(this cannot be proved by jury testimony or affidavits. • Jury miscalculation of damages or misunderstanding of the court's instructions is generally considered to be the type of error that cannot be challenged under FRE 606(b). Misconstruing jury instructions does not fall into this exception. Answers: 1. • WAY TO CORRECT THIS INJUSTICE: Note that while you cannot ask the jurors about misunderstanding the instructions. counsel of the D finds out the 2 jurors went to the accident scene on a fact finding mission. In this case. such as insufficiency of the evidence to support the verdict. Evidence Outline Page 120 .000. it is not barred by FRE 606(b)]. a verdict is returned for the P. This only applies to where the jury for example found a defendant “not liable” but wrote “liable” on the verdict form.000) Upon seeing the jury interpreted the instructions wrong. 2. • For jury errors of this type. it is sometimes possible to sidestep the proscription of FRE 606(b) and have the judgment reversed on other grounds. PROBLEM 6-D: “The Jury View” In a personal injury action arising out of a car accident. • Do not confuse the language in Rule 608 that says “whether there was any mistake in entering the verdict into the verdict form” with this. ($890. the jury meant $890. you can nonetheless order a new trial based on a finding that the jury clearly failed to follow its instructions.000 and wrote $890. plus the mortgage balance on the property." • Factual knowledge was not acquired during the receipt of evidence in the court room is extraneous prejudicial information and you may therefore use juror testimony to establish that testimony was received by the jury. may the defense attorney make inquiry of the two jurors regarding this report? Answer: Evidence about unauthorized jury views is generally allowed [i. but may be inferred by the court in granting a new trial motion) or order remittitur on the ground that the award is excessive. the attorney obtains affidavits from the jurors saying they misunderstood the instructions.000) • The instruction as the jury may have understood it: Damages are the difference between fair market value of the farm and the redemption cost. Does FRE 606(b) allow such affidavits? NO! The affidavits of the jurors arguably describe "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." which is prohibited by the rule. If the judge agrees that the jury erred.e. should she grant a new trial? YES. ($90. At a hearing for a motion for a new trial.. Unauthorized views fit the exception to the rule for "extraneous prejudicial information [that] was improperly brought to the jury's attention.The instruction as it should be understood: • Damages are the difference between fair market value of the farm and the redemption cost plus the mortgage balance on the property. After trial.
Court must Balance "extraneous prejudicial information" and "outside influence. is charged with preparing and presenting fraudulent income and tax returns on behalf of his clients. even though no injuries were inflicted by the explosion. Is her testimony objectionable? If the testimony is being offered substantively." which are bad. If the testimony is being offered for a non-truth use. against "some sharing of personal knowledge and experience by jurors [which] is expected and proper". the only personal knowledge you need is that the statements were made. a part-time tax preparer. • The answer depends on how directly the evidence bears on the immediate controversy and how prejudicial the information is in the context of the particular case.• • You can use this information to show the jury received prejudicial information. At trial. her lawyer is told that one juror is willing to testify that another informed the jury he was a demolitions expert in the Army and that the type of bomb Jones used was powerful enough to kill anyone within 20 feet. • This opinion. A better rationale for the opinion might be that the witness lacked the Evidence Outline Page 121 . the government offers testimony of an IRS agent named Peacock that she audited 160 returns prepared by Brown and that 95% of them contained overstated deductions. Afterwards. • Court ended up excluding the testimony saying it was hearsay • It can be argued that the court reached the right result for the wrong reason. although the information is highly prejudicial. and is of sufficient prejucide to justify receipt of juror testimony regarding what was said—NOT the effect of what was said. The court still must make a finding that the case resulted in a different verdict in order for the verdict to be reversed. it is unlikely this was reversible error. which is highly specialized in nature. may the prosecutor call other jurors to testify that this information had no influence on their votes? NO. Courts are much more likely to admit evidence regarding information which pertains to the immediate parties or controversy. then there are two types of Personal Knowledge required: (1) Personal knowledge that the statements were made or (2) Personal knowledge of the truth of the contents of the statements. Before you can reverse this ruling. If Jones moves for a new trial. However you cannot use jury testimony to establish the effect this extraneous prejudicial information had on the jury. She based this information she received from people for whom the returns were prepared. PROBLEM 6-E: “The Bomber” Jones is convicted of detonating an explosive device in a public building. you still need to establish if the information rose to reversible error. may she offer such [juror] testimony in support of the motion? Answer: YES If so. It most likely did not ultimately change the outcome of the trial Problem 6-F “The Peacock’s Tale” Brown. • However.
The prior inconsistent statement: You may use a statement made by the witness on a prior occasion which is different from or inconsistent with a material issue of the witnesses present in court testimony. or be used to help you meet your burden of production—it serves only to destroy. • You can use extrinsic evidence to show the prior inconsistent statement. If we classify her as an expert (under FRE 703). you have to lay a foundation and give the target witness the opportunity to explain or deny making the inconsistent statement. If she were an expert. D takes the stand and testifies he was only going 15 mph. such as out-of court statements of tax payers if they were found to be of a type reasonably relied on by experts in that field. IMPEACHMENT I.• personal knowledge necessary to support her testimony. The prosecutor should have just brought in the actual clients who had personal knowledge that this happened. • Except: if it is a prior inconsistent statement that was given under oath and as part as a formal trial hearing. which is the personal knowledge of the clients. P sues D alleging he was speeding. however it is likely. by saying it is not hearsay because we are only offering it to show the contradiction. Evidence Outline Page 122 . first make reference to FRE 404(a) and 405 (character evidence). • The prior inconsistent statement cannot be used to make a prima facie case. This statement does not come in for its truth. IMPEACHMENT GENERALLY Note: Impeachment is not entirely covered by the FRE. Then you may move on to other rules! Methods of Impeachment: 1. The officer says the D told him he was going 70 mph. This could not only come in to impeach but it also comes in for its truth. We get around the hearsay rule. This witness should not be believed. This is an exception to the hearsay rule. than this statement is admissible to impeach and for its truth. not the IRS agent. proceeding or deposition. this would be admissible under her opinion. A prior inconsistent statement by a party is an admission and there need be no foundation whatsoever. (FRE 602) Here we need the substantive contents of the statements. • A prior inconsistent statement by a PARTY always comes in for its truth because this is considered an admission. In these questions. she could rely on the facts. It only comes in to impeach.
Evidence Outline Page 123 . (FRE 608(a)). • Almost always you can use this to show an expert witness is being paid by the party who called him (this doesn’t mean he is lying. or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties. 3. embezzlement. You can prove this by extrinsic evidence. motivation. perjury.2. You must take the answer of the witness. (ex: there were two people injured in a car crash—A and B. Specific acts of deceit or lying (NOT convictions) on cross: These acts did not result in convictions. These may be inquired into on cross examination of the target witness. it is just letting the court know that he is not a neutral expert. The jury is entitled to know that D has paid B in a previous settlement). (FRE 608(b) 5. B settles with the D but A does not. animus. (Ex: if 10 years have passed. Misdemeanors are not usable at all! (FRE 609) • Any crime which is revealed cannot be too remote. A showing of interest or bias or motive to misrepresent or exaggerate Showing that the witness has some bias. but you do have to lay a foundation to admit or deny the facts that constitute the interest. 6. there is 3 parts • Any crime involving dishonesty or false statement is usable to impeach. The crime has to have an element of deceit—larceny by trick. The court does not have the discretion to say I am not going to allow the impeachment because it is substantially outweighed by unfair prejudice. it is too remote) 4. bias or motive. Mistake: showing a defect in sensory or mental capacity (perception or memory) that undercuts his testimony. It is relevant to impeach the credibility of the witness. Now B is testifying for D. FRE 403 does not apply. you have to have a reasonable basis for asking the question —it must be asked in good faith with a reasonable belief it was done by the witness. • A felony that does not involve deceit of false statement (like robbery or murder) These are useable to impeach but there is discretion under FRE 403. etc. Prior commission of a crime Under FRE. (ex: “Did you file a fraudulent income tax return?” “Did you lie on your application for life insurance application?”) However.) • In settlements this rule could be used as well. NO extrinsic evidence is allowed. Bad reputation or opinion for truth and veracity: (credibility) Extrinsic Evidence is allowed-“you can call the community mouth to the stand” who can testifies they know the reputation of the witness and it is terrible— therefore the witness should not be believed.
you may offer Evidence Outline Page 124 . Contradicting the Witness: showing that he is just plain wrong on a point of testimony (FRE 613(b)) (FRE 609) Types of Impeachment: 1. However. Under the FRE. 3. Under certain conditions. he lied under oath about where his g-ma lives. The collateral matters doctrine (impeachment by contradiction)--The cross examiner is bound by the answers he gets from a witness as to collateral matters. Under FRE 611. (Sixth Amendment or Due Process Clause of the 5th Amendment) 2. a prior non-conviction. Good Reputation for Truth and Veracity: this is mounting an offensive of your own. Where the gma lives has nothing to do with the case. because extrinsic evidence is not allowed to contradict a collateral matter. There are 23 witnesses that are willing to testify the g-ma does not live there. You have a right to some opportunity to cross examine any witness who testifies live against you. cross examination is limited to the scope of direct. if you label something as counterproof because it not only has an impeaching effect but it has some relevance independent of its contradicting effect that you can use extrinsic evidence. the supporting party may examine the witness in an effort to refute points suggested during the attack. prior crime. Therefore you can cross on any issues that were raised during direct examination. Repairing Credibility: What can you do to increase the credibility of your witness if there has been an attack? • Usually the adversary of the attacking party has an interest in repelling the attack or otherwise repairing the credibility of the witness.7. Mistake/Defect in mental capacity. However. Ex: a witness testifies against my client claiming he was present on the scene at the time of the accident. you cannot produce these witnesses. No extrinsic evidence is allowed to contradict the witness as to matters which are only relevant to show contradiction. the only relevance of the testimony is to contradict the witness. (Bias/Corruption. bad reputation) These methods are definite in telling the Trier why to doubt the witness. • In these cases. but not specific in not showing what testimony to doubt. In other words the probative value is substantially outweighed by judicial efficiency (the waste of time of hearing the evidence) • REMEMBER. 2. Definite: there is a particular definitive reason to doubt the witness. It cannot exceed the scope of direct. Specific: the impeachment brings into question specific parts of testimony (Prior inconsistent statements and Contradiction) These methods are specific in casting doubt particular parts in the testimony of the witness (hence suggesting the possibility of error or falsehood on other points) but indefinite because they do not necessarily reveal an underlying cause. 1. Cross examination and impeachment 1.
but Abel went to trial. We assume witnesses are credible until there has been an impeachment attack. II. In this area. The District court got an evidentiary proffer from both sides (allowed the sides to present their side of admitting/not admitting the evidence re association with the Arian brotherhood) away from the jury. D did not request a limiting instruction under FRE 106. You can only show a prior consistent statement to rebut a charge of recent fabrication or improper influence or motive. that he could bring Ehle back on the stand concurring the gang and Mill’s membership in it. Court said the probative value outweighed its prejudicial effect. One of the cohorts decided to testify against Abel and identify him as a participant in the robbery. there must be a direct character attack on the witness (i. Mills had spent time with Ehle and Abel in prison and was prepared to testify that Ehle had told him that he was going to frame Abel. The rules make no mention of bias or mental or sensory capacity.: choices 3. • Prosecution tried to counter D’s argument by saying that Mills. and if Mills denied it. • The court allowed the Prosecutor to ask Mills about the gang.) D objects to this testimony saying it was too prejudicial to Abel. theft and murder on each member’s behalf. 4. bad must come before good. Abel planned to counter Ehle’s testimony with Mill’s testimony. • You can impeach your own witness! The credibility of a witness may be attacked by any party. and 5) 2.• proof of the good character of the witness. Using the name of the organization was unduly prejudicial. The other 2 cohorts pled guilty. However. A SHOWING OF INTEREST OR BIAS United States v. including the party calling the witness. • The court concluded they would allow the organization to be admitted however the parties could not refer to it as the Arian Brotherhood (instead they call it a “Secret Prison Organization). Able The SC held Abel guilty for bank robbery claiming that the District Court did not improperly admit testimony which impeached one of respondent’s witnesses. Credibility of your own witness • You cannot bolster the credibility of your witness before there has been an appropriate impeachment attack.e. you can use a prior consistent statement by your witness. Abel and two cohorts were indicted for robbing a savings loan. Ehle and Abel are all part of the “Aryan Brotherhood” which promotes illegal activity (such as perjury. and no mention of contradiction in repairing credibility. Evidence Outline Page 125 . A return to the prior consistent statement: if there has been an appropriate impeachment attack. Procedural Posture: 1.
This rule is limited to cross examination of the witnesses. It establishes nothing about the individual’s own actions.C agrees with District Court. Malavet’s forest with the case: • Step I—Relevance: Bias impeachment makes this relevant. • FRE 608(b) (the rule that allows a cross-examiner to impeach a witness by asking about non-convictions) could not be used here. • Evidence Outline Page 126 . 3. long established common law tradition allows it. Abel is being connected to Mills and Mills is shown to be a bad person because of membership in this organization without proof that he actually adopted the organization’s tenants. The D is still entitled to a limiting instruction if he wanted one. or veracity. • There must be careful process prior to the admission of evidence—listening to the parties offer proof outside the jury—editing out the name of the organization—the fact D did not ask for a special instruction. • At the very least. the D did not request one. The Ninth Circuit said this is too much of a “bad person” inference and is too prejudicial to the D. This is guilt by association--because D is a member of the Arian Brotherhood. These members had to lie on behalf of one another or it is “suicide”. Although there is no express rule which discusses bias impeachment. The government must show that the individual knows of and personally accepts the tenants of the organization. Proof of bias is almost always relevant for this reason. It is legitimate to show that Mills has a bias we have a HIGH PROBATIVE VALUE and relatively low unfair prejudice.the common membership in such a bad group is impeaching by itself. and prohibits the use of “extrinsic” evidence. A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probably in the eyes of the jury than it would be without that testimony—it is therefore relevant. (To show that he has a bias to lie because it is a major tenant of the organization to which they are all apart) o It is not for the truth of the matter asserted (Abel is a member of the gang which commits robberies and therefore he robbed the savings account). o It is not being offered to show a bad person inference (Abel is a member of a bad organization. beliefs. S. but in this case. a criminal gang he is a bad man and is guilty.The only reason the testimony is allowed is to impeach Mills. etc. is a bad person and therefore robbed the savings account_ 2. This is clearly improper under FRE 608(b). Notes: • Impeachment use of a witness’ prior statement is deamed to be a “non-truth” use of the statement and is not hearsay under FRE 801(c). • It is settled law that the government may not convict an individual merely for belonging to an organization that advocates illegal activity.
unconsciously. • Step 3—403 Balancing Test: there is probative value here. including (1) how much he made testifying for GM last year. He keeps asking how much Riley is going to get paid. bias is not explicitly forbidden by these rules and therefore you do not have to prohibit the evidence. There's no reason to go into great detail here. o Way you get around 608(b): Membership is not a specific instance of conduct—by not requiring adoption of the tenants of the organization. • The type of the organization in which a witness and a party share membership may be relevant to show bias. If the organization is a loosely knit group having nothing to do with the subject matter of the litigation. even without proof that the witness has adopted it tenets is certainly probative of bias. D’s counsel says: “Your Honor. Membership in an organization to show Bias • We allow a jury to infer common membership in an organization. or even commit perjury outright.• Step 2—Specific Rule of Prohibition: There is no rule of prohibition that prevents you in the bias impeachment. and it's a lot of money because he's a highly trained expert. cheat and steal on behalf of one another. but plaintiff's counsel clearly wants to browbeat this witness. • The attributes of the Arian Brotherhood bore directly on the facts of bias but also on the source and strength of that bias. Problem 8-A “The Hired Gun” Riley. the inference of bias arising from common membership may be small or nonexistent. The Plaintiff kept trying to show that Riley was being paid by GM and therefore was somehow biased in a way.” P’s counsel says: Your Honor. I want them to know some other things too. (2) whether he expects to testify for GM again. we have nothing to hide here. in one way or another and is therefore very probative. The tenants of this group show that Mills had a powerful motive to slant his testimony towards respondent. Evidence Outline Page 127 . the tenant’s of the Aryan Brotherhood showed that Mills had a powerful motive to slant his testimony towards the D. All we are showing is membership. Therefore membership in this organization is HIGHLY PROBATIVE: this witness may lead the jury to slant. It just wastes time and distracts us all from what's really at stake here. Although you do have FRE 404 and FRE 608 concerns (bad person inferences). However. and (4) approximately what proportion of his total income comes from such appearances. the court does not require specific instances of conduct. the jury should know how much this man expects to get paid. Being a member of the “Book of the Month” club would not have inferred bias in Abel. The professor has said how much he gets paid. in court appearances last year testifying for automakers. was an expert in a trial. because the tenants and views and rules of this organization matter in this case—the rules explicitly say the members should lie. (3) how much he made. o Way you get around 404: We are not using this to implicate the witness or D is a bad person—we are using it to show bias. all told.
o Under Florida. • Income related to the case in any way and affiliations to any party are the legitimate subject of bias impeachment cross examination questions and are therefore relevant. o FRCP 26(a)(2)(B) reads that that experts shall disclose the compensation to be paid and a listing of any other cases in which the witness has testified as an expert within the four proceeding years. we would say plaintiff should be able at least to ask whether Riley has a larger economic interest in testifying well for GM. (d) the proportion of the expert's total income which comes from testifying for a party or type of party. such as hours expended. 3. or percentage of income earned from that source. which is normally three years. The expert may be required to identify specifically each case in which he or she has actually testified. 6. The patient's privacy must be observed. • The Graham Study shows Courts allow questions about: (a) continuing employment by the calling party and (b) prior testimony for the same party or attorney. files. The production of the expert's business records. whether by deposition or at trial. Is the work performed for the plaintiffs. This establishes a strong preference in the federal rules for extensive bias/interest in impeachment of experts. The medical expert may be deposed either orally or by written deposition. A longer period of time may be inquired into under some circumstances. defendants.Answer: These questions go both to the “sources of income” and to your “party affiliation”—sources of income and allegiance affiliation. going back a reasonable period of time. This can be a fair estimate of some reasonable and truthful component of that work. 2. The expert need not answer how much money he or she earns as an expert or how much the expert's total annual income is. But not those about: (c) previous compensation from the same party or attorney on other cases. and 1099's may be ordered produced only upon the most unusual or compelling circumstance. or (e) the degree to which the expert limits his testimony to certain causes or certain sides of issues. or some percentage of each? 4. or the approximate number of IME's that he or she performs in one year. They limit the questions to these: 1. 5. • More recent studies (and Malavet’s experience) shows the last three things would be allowed as well. gives a list of questions that are admissible. • On these facts. what he or she has been hired to do and what the compensation is to be. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. The expert may be asked as to the pending case. Elkins. The federal courts tend to be more liberal than state courts and state courts are very divided. (only if the court is skeptical as to what the expert is saying) 7. Syken v. Evidence Outline Page 128 . and whether he has regular clients whose positions he tends to support. The expert may be asked what expert work he or she generally does.
Maryland: favors a liberal approach to include questions regarding testimony in other cases and patterns of payments received from particular parties. Illinois: counsel could inquire into an expert’s financial interest in the case including (1) in the particular case (2) for a particular party or (3) for a particular parties attorney. Isn’t it a fact that you used false names? 5. Cross examination on convictions (FRE 609) 3. Have you ever made an oath accepting Satan as your God? 6. Didn’t you give false information on a bank loan application and on your tax returns 4. Use of Character witnesses (FRE 608) Cross Examination on Non-Conviction Misconduct The following questions have all been approved by appellate opinions: 1. Isn’t it a fact that you lied on two employment applications 9 years ago when you replied no the question whether you committed a crime? 2. These points may be proved by extrinsic evidence. or that she labors under defects in sensory capacity that may affect her observation. Cross examination on non-conviction misconduct (FRE 608) 2. or that human perceptive processes work in ways suggesting that her testimony is not so persuasive as it seems. • One’s psychiatric history can only be invaded on cross-examination when required in the interest of justice. III. District court did not permit into evidence the expert’s contract with the government as an appraiser for a project or the amount received for the appraisal work. ADMITTING NON-CONVICTIONS--TRUTH AND VERACITY Three means of proving untruthfulness through “character” evidence: 1. MISTAKE—SENSORY CAPACITY AND PRIOR BAD ACTS Sensory and Mental Capacity: the attacking party may seek to show that a witness had only a brief chance to see or hear what she has described in her testimony. Florida also allows you to inquire into the relationship between the expert and a party because it goes to the witnesses’ potential biasness. An expert may not be compelled to compile or produce non-existent documents. Weren’t you involved in persuading ineligible voters to fill out false registration forms? Didn’t you even steal forms for them to fill out? 3.8. Haven’t you accepted bribes in the context of your official duties? Evidence Outline Page 129 . Malavet’s Examples from other jurisdictions: Fifth Circuit: (liberal) cross examination of an expert about fees earned in prior cases is not improper Third Circuit: The expert worked for the government in “condemnation proceedings” for the government. IV.
the question does the real damage! (Also remember. in cross examination. o Narrow: a crime bears only on veracity if it involves falsehood or deception—if it can readily be determined from the elements of the offence that it involved truth telling (ex: fraud.Remember. Acts of violence which go to concealing or frightening off witnesses or suborning perjury. Court throws this out because it must be character for truth telling. V. perjury. Any criminal conduct says something about whether you have the capacity to tell the truth. the witnesses were biased against the D’s because they feared for their personal safety.) Regardless of a denial. however. • There are three ways to interpret this rule: o Broad: anyone who does anything bad is a liar. witnesses’ specific instances of conduct (threats made) may only be raised on cross-examination if they are probative of truthfulness or untruthfulness. Manske Manske wants to cross examine Penske (an alleged co-offender) who testified for the government about threats Penske made to at least 5 different people before they testified. This threat clearly implicated Penske’s truthfulness. they can be damaging beyond their power to shed light on veracity. modern views suggest that even if the cross-examiner has a factual basis for these questions.) Court says the language of 608(b) is not this narrow. including robbery and assault. if this testimony would have been allowed under FRE 608(b). (See FRE 608b) • Modern cases disapprove of this type of cross examination about behavior that does not directly involve lies or deception. Manske wants to show that these threats show only a propensity for violence. • Relevance: By showing the witnesses were afraid for their lives and that is why they testified in a certain way is clearly bias! Clearly. • Generally. There must be a link between truth telling and acts of violence as long as the violent acts were intended to make people lie. Note. rather than untruthfulness.” Therefore this information is relevant. • Note: It is questionable if the only argument in this case dealt with Penske’s threats and whether this showed his “truthful” disposition. The government makes a motion in limine to block the proposed cross-examination. Virtually any conduct indicating bad character indicates untruthfulness. United States v. Bias may show “fear of the witness for his or her personal safety or the safety of friends and family. it seems the “odor raised” by the question will still resonate with the jury. forgery. etc. The court deals with the first argument. courts must have adequate basis to ask these questions. PROVING PRIOR BAD CONVICTIONS Evidence Outline Page 130 . The trial court grants the motion saying violence is not probative as to truth telling. o Middle view: Merely being violent is not enough. You must be violent to elicit pergery or lying. Two arguments were being made here (1) the testimony shows bias and (2) Penske is untruthful.
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted. for the purpose of attacking or supporting the witness' character for truthfulness. Evidence Outline Page 131 . may not be proved by extrinsic evidence. They may. Impeachment by Evidence of Conviction of Crime (a) General rule. if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. FRE 608(b)(2): Note that this rule constitutes a very narrow exception to the general rule that forbids the use of extrinsic evidence regarding character. and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment. • The automatic admissibility rule has to be narrowly construed—or it would become an exception that swallows the rule. but it could be used to lay the foundation for the questions in a judicial mini-hearing before the judge. and denies some fact established by the documents. if probative of truthfulness or untruthfulness. and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. in the discretion of the court. • Crimes of theft. subject to Rule 403. be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. it might become admissible for impeachment-by-contradiction evidence if the witness is asked the question during trial. do not involve dishonesty or false statement within the meaning of the rule. For the purpose of attacking the character for truthfulness of a witness.Rule 608. • Rule 609. violence. • Prior conviction of a witness o A prior conviction of a crime (punishable by at least a year) by a witness will be admitted subject to the FRE balancing test This standard favors admissibility. other than conviction of crime as provided in rule 609. since exclusion is warranted only if the risk of prejudice substantially outweighs probative worth). if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. however. or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. While extrinsic evidence of prior bad acts is inadmissible. • Extrinsic evidence related to a prior non-conviction offense would not be allowed at trial to be heard by the jury. Evidence of Character and Conduct of Witness (b) Specific instances of the conduct of a witness. o A prior conviction of a crime by a witness if the crime is one of falsity or dishonesty will be automatically admitted. etc.
• The rule applies to the D in a criminal case.• Dishonesty or falsity has to be an element of the crime. because of things like the spill over effect. The more a prior crime shows truth telling. when adjudication has been withheld. since it allows such use of convictions if the probative value substantially outweighs the prejudicial effect. or even a verdict of guilty. • The burden is on the government to show that the probative value of a conviction outweighs its prejudicial effect to the defendant. the more probative value it has. the date and the sentence. A D’s witness: The D’s witnesses in a criminal case are in the middle. Unfair prejudice is a specific concern and is more likely to outweigh the probative value because of spill over. • • Think of FRE 609 as a sliding scale of admissibility with regard to truth telling. • The accused opens himself to attack on convictions if he takes the witness stand. This is to watch for the unfair prejudice that may occur. You do not need to go through a 403 balancing test. You are only allowed to ask about the fact of conviction. 2. Almost all courts agree that the cross-examiner may not go into details of the underlying offense. P’s witness: Prosecution witnesses in a criminal case are not as unfairly prejudicial: least compelling of the three. • Prior conviction of the accused: o A prior conviction of a crime by the accused shall be admitted subject to the reverse FRE 403 balancing test. • This standard favors inadmissibility. Therefore. perjury will have much more probative value than a violent crime. etc. Side note: A D or witness in Florida may not be impeached on a previous plea agreement. If it a felony conviction by a D himself : The D in a criminal case gets the highest benefit of the doubt and therefore unfair prejudice is very important. 1. It does not matter. it is admissible. a D’s witness and a P’s witness. Courts may restrict the cross-examiner even further. the value you give to the prior convictions are relative depending on which witness you are dealing with. Therefore. you must find a SUBSTANTIAL PROBATIVE VALUE. • Remember. • Once you say something fits under FRE 609(a)(2). 0%<--------------------------------------------------------------------- (Violent act) (Perjury) Evidence Outline Page 132 . the name of the crime. This is a more compelling argument to the D witnesses when compared to P’s witnesses. This is an exception to FRE 404 that the character of the accused may only be admitted to rebut good character. 3.
e. as allowed by FRE 405(a) and FRE 608(a)." (FRE 608(b)) • The second prong of this test asks whether the prior bad acts are probative of truthfulness or untruthfulness. Murphy and attack his character opinion by using specific instances of (presumably good) conduct that support Elizabeth Murphy's credibility. on cross-examination. under FRE 608(b)(2) and 405(a)(2) could cross-examine Mr. based on opinion or reputation.Murphy v. • Additionally. Liscomb did not testify. could bring out prior bad acts by Elizabeth Murphy to attack Bonanno's opinion on the character of the Principal Witness. say that after Brian Murphy testifies. but he would not be allowed to testify about the three specific instances of bad acts that are the object of the case. Bonanno Brian Murphy was charged and convicted on two counts of unlawful assault and one count of unlawful entry. likewise under FRE 405(a)(2) and 608(b)(2). Therefore. Murphy falsified financial statements 2. Murphy filed false insurance claims would be admissible under this principle as well. i. the judge said the P could ask about the D’s convictions. Plaintiff Bonanno's lawyer. • However. Brian appealed claiming the trial judge erred in refusing on relevance grounds to permit cross-examination of Murphy about several prior instances of asserted conduct reflecting poorly on her veracity as a witness. Murphy filed false and fraudulent claims against defendants 3. which convictions were affirmed on appeal. Opposing counsel. • In his direct testimony he could testify as to her character. . Bonanno's lawyer wants to support • Elizabeth Murphy's credibility by calling Bonanno to testify about her good character. • Conduct amounting to "making false statements of a variety of kinds" is "probative of truthfulness or untruthfulness" within the meaning of FRE 608(b). Smith Evidence Outline Page 133 . The judge also allowed the prior convictions of three D’s Little (convicted of robbery). 1. Under the rule 609(a)(1). Liscomb made a motion in limine to prevent this crossexamination on retrial. Evidence that Ms. . in order to attack her credibility. she is testifying about ultimate facts that are important to Plaintiff Bonanno's case. Liscomb testified in his first trial and had been impeached by cross-examination concerning his conviction for robbery 8 years earlier. Murphy filed false claims of sexual harassment • A witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction where . The use of extrinsic evidence and character under Murphy • Elizabeth Murphy is the Principal Witness. • Brian Murphy is called by defense counsel to testify regarding the character of Elizabeth Murphy. because that would forbidden extrinsic evidence under the initial language of FRE 608(b).. United States v. the bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial. Liscomb: Liscomb was convicted for possession of heroin.
” Convicts/Felons are automatically prejudicial and this is difficult to manage even with a jury instruction. the court has discretion to decide when it should do so. Evidence Outline Page 134 . but need not always do so. • Where the formal title of an offense leaves room for doubt. unless the prosecution first demonstrates to the court. that a particular prior conviction rested on facts warranting the dishonesty or false statement description. Lipscomb gives courts the authority to look at the underlying facts of the conviction in order to establish how much the probative value the conviction has • Robbery does have some unfair prejudice (but not nearly enough as a sexual crime would have). Beyond that. How much Background Facts Are Allowed? • Rule 609 allows the court to inquire into the background facts and circumstances." Often. • Rule 609(a)(2) creates a per se rule that probativeness outweighs prejudice for crimes "involving dishonesty or false statement. Therefore. with no specific instructions as to how the balance is to be performed. The simple or basic inquiry is into the name and date of the conviction. automatic admissibility under Rule 609(a)(2) will normally not be permitted. we get into discretion.(convicted of robbery) and Green (convicted of accessory after the fact to manslaughter). The use of Limiting Instructions: In these matters. It would most likely not make the jury red. outside the jury's hearing. it may be brought in under 609(a) (1). How should the balance be performed? Rule 609(a)(1) is broadly phrased to require balancing of probativeness against prejudice. • All courts have held that the prosecution may adduce specific facts to bring a prior conviction within Rule 609(a)(2). “The jury is told to consider the defendant’s prior conviction only on the issue of credibility and not on the overall issue of guilt” The court is weary of limiting instructions—the jury cannot be expected to perform a “mental gymnastic which is beyond. • Robbery is not one of those crimes that will fall under automatic inadmissibility under 609(a)(2). It seems equally appropriate to permit the district court to elicit such facts in balancing probativeness against prejudice under Rule 609(a)(1). it is likely these prior convictions would be admitted. • The court has discretion to determine when to inquire into the facts and circumstances underlying a prior conviction and how extensive an inquiry to conduct. however. However. When you are dealing with felony crimes. the court may look into the underlying facts of the conviction used in making its assessment about its probative value. the trial judge will not be able to determine from the name of a crime whether the defendant's conduct involved dishonesty or false statement. not only their power’s but anybody elses. Because the Rule does not indicate when the district court should seek this additional information.
but there is a risk nonetheless. and Farr’s conviction may likely have a spill over effect. As we have said. • The evidentiary hypothesis for this would be: (i. Therefore. And D’s burden is eased by the fact that the Rule favors exclusion. the big argument for exclusion is that the prior charged offenses are the same. All other things being equal. Someone who commits a felony crime through the use of deceit is more likely than other witnesses to lie under oath. He can prevail only by invoking the FRE 403. Assume that Dennat. Elmo: The P would likely lose as to the admission of this evidence. (4) whether defendant's record is otherwise clean (convictions are presumably more Evidence Outline Page 135 . Farr’s conviction: the risk of prejudice here is more real than it is with Elmo. • The jury is not supposed to use the conviction of D as proof of guilt. but it is hard to believe that won’t happen.• • The naïve assumption that prejudicial effects can be overcome by instructions to the jury. Two weeks later. since the purpose in each is to harm the case of the party who called the witness. • Unless probative worth exceeds risk of prejudice. Coupled with the fact that robbery is not high on the scale of veracity-related crimes. It seems unlikely that the jury would misuse the conviction. the P would be well-advises to bring out on direct examination that Elmo has the prior robbery conviction (See FRE 607) As to the Defendant. the conviction stays out. • Similarity of the offense is a strong danger of unfair prejudice! And therefore the potential for jury misuse is high. Gordon FRE 609(a) Factors: (1) the nature of the conviction. As to the Defense Witness. Elmo and Farr each have a prior conviction for bank robbery occurring within the last 8 years.e. Dennant is arrested and charged with robbery. while P’s counsel would object to Elmo’s conviction. Anticipating this outcome. Farr is a friend of the defendant. robbery does not fit into the automatic admissibility under FRE 609(a)(2). The argument to exclude is strong. There is no doubt each party has standing to object to the admission of these prior convictions. Therefore the balancing test that the court does is extremely important in these cases Problem 8-B “Hit the Deck” There was a bank robbery. Elmo is and the P’s witness and Farr is the D’s witnesses. especially if the jury learns that D has also committed a prior robbery. which means the conviction comes in unless probative worth is substantially outweighed by the risk of unfair prejudice. D’s conviction: The defense has a strong objection to D’s own conviction. the risk of prejudice to D seems less with the Farr conviction than with D’s own. (2) its recency or remoteness. As to the Prosecution witness. (3) whether it is similar to the charged offense.: the probative value of the prior conviction): A person who would commit robbery would also lie under oath. as to each one of the convictions how do you apply FRE 609(a)(1)? • Deference counsel would object to the convictions of Dennant and Farr. all practicing lawyers know to be unmitigated fiction.
Displayed false handicap sign in car: this is an act of dishonesty or false statement 609(a)(2)—automatic admissibility. She has a rap sheet of convictions! Witnesses Convictions: 1. than it would be admissible. It readily can be determined that establishing the elements of the crime required proof or admission ad an act of dishonesty or false statement by the witness. However. this standard favors exclusion) 6. Even if it is not automatically admissible. (remember.probative of credibility if they show a continuing pattern rather than isolated instances). Felony conviction for forgery: this squarely fits under 609(a)(2) because the crime requires proof of dishonesty or false statement in the form of the deceit that accompanies any act of claiming that something was created or signed by someone other than the defendant. Defendant’s Convictions: 4.” 2. This dishonesty was an element of the crime—“falsely displaying a handicap sign. when in fact he made it or signed itself. It is lying saying she was handicap. if a charging document does. Ryan testifies that the envelopes just contained legal documents. Felony conviction for obstructing justice through physical force (as opposed to obstruction of justice by deceit) to influence or delay. By its very elements (which require proof of a false statement and misleading conduct) it is an element of the offense which goes to truth telling which fits in the automatic admissibility language. After Wendy’s testimony. This is not an automatic admissibility. because it is a felony it may fit under FRE 609(a)(1). Judge will use the reverse balancing test to determine if the probative worth outweighs the unfair prejudice. The elements of the crime do not include dishonesty or false Evidence Outline Page 136 . This crime is completely dishonest. you may use the charging documents and/or the instructions given to the jury if those define the crime as being dishonest or lying. (5) the importance of credibility issues. D wants the jury to hear the P’s witness has a long history of lying. and (6) the importance of getting the defendant's own testimony Problem 8-C “A History of Lying” Ryan is charged with embezzlement of union funds. How could you try and argue this could fall under 609(a)(2)? The ACN tells you. Felony conviction for obstructing justice: this also seems like it is a deceitful nature which is tampering with witness testimony. it is a felony and will pass muster under FRE 403. Wendy is the principle government witness. Therefore. 3. 5. Misdemeanor for peti-theft: not admissible because truth telling is not an element and this is a misdemeanor! (Does not fit under 609(a)(1). even if a generic statute does not define truth or falsity. Misdemeanor for peti theft altering the electrical meter attached to his house. and she testifies that she saw couriers from the law firms deliver envelopes apparently containing cash to Ryan.
Problem 8-D—Faker. Claimed an exemption on his tax return for a child even though he didn’t have one 2. we must assume they are a criminal falsy.e. Allen objects arguing that the cross examination under FRE 609 is limited to the fact of conviction. the date and place and the sentence imposed. If Malavet gives us one of these on the test. the P asks him if he falsified federal documents which led to a tax fraud prosecution and a felony charge. which does require proof of deceit which might bring the conviction within FRE 609(a)(2). is absurd. If on the exam Malavet says a crime is not a criminal falsy (automatically inadmissible). What constitutes a criminal falsy? (i. unless the defendant opens the door by testifying and attempting to justify himself. Evidence Outline Page 137 . Thug? (Malavet thinks this problem is not important) Allen is charged with burglary. then we cannot apply 609(a)(2) and we have to go back to 609(a)(1). it is likely not a criminal falsy: • Prostitution • Rape • Narcotics • Public intoxication • Assault Looking at Charging Documents or Jury Instructions from previous convictions Looking “behind” a theft conviction to decide whether the particular facts involve dishonesty or false statement under FRE 609(a) (2) is consistent with the mandate of Lipscomb to consider background information in applying FRE 609(a)(1).: automatically admissible under FRE 609(a)(2)) (FN 6) 1. 609(a)(1) only applies to a FELONY! FRE 609(a)(1) does not apply to misdemeanors.statement and it is a misdemeanor so it likely will not fit under 609(a) (1). Claimed a deduction of $800 for charitable gifts. On the other hand. If Malavet gives us one of these crimes on the test. The P wants to bring out that Allen: 1.000 of mortgage interests though he live in a rented house 3. Claimed a deduction of $4. the charging document and jury instruction will refer to rigging an electric meter to create a false reading. 2. Remember. During cross examination. The notion of allowing this to occur in front of the jury however. • Forgery • Bribery • Falsifing a police report • Mail Fraud 3.
But they will be admissible if the D opens the door. whether written or not. meaning that the character witness may say what he personally thinks of the veracity of the principal witness. VI. and such testimony sometimes has the effect of bolstering credibility. the foundation is needed—the party must establish there is a period of personal acquaintance. this testimony is limited to “opinion" as well as "reputation" testimony. • In order to testify to opinion testimony. but on request the same shall be shown or disclosed to opposing counsel. Underlying facts are almost never admissible. • FRE 608(a) authorizes testimony of this sort. FRE 609 applies. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the Evidence Outline Page 138 .• If events of the past have led to conviction. this is more likely to be allowed in the examination of crucial verses non-crucial witnesses. • This type of testimony is generally limited to lay witnesses. But.: to contradict D) o FRE 609 precludes defense from cross-examining government witness on facts of the underlying offense. name of the crime (and sometimes not even that) and sentence. However. the statement need not be shown nor its contents disclosed to the witness at that time. Prior Statements of Witnesses (a) Examining witness concerning prior statement. (i. In examining a witness concerning a prior statement made by the witness. (very rare) o Some courts admit expert testimony concerning the trauma suffered by victims of rape or child abuse.e. o Note. Prior Inconsistent Statement Rule 613. courts may hold the trial court has the discretion to allow questioning of the witness about the underlying facts of convictions under FRE 608(b). and that includes asking about misconduct under 608(b). (not FRE 608) and the cross-examiner should confine his questions accordingly—meaning the questioning is restricted. But there are exceptions: o One case admitted defense psychiatric testimony on the mental condition of the main prosecution witness. o Malavet says you are allowed to ask date of conviction. BAD REPUTATION OR OPINION FOR TRUTH AND VERACITY/CREDIBILITY Parties can introduce testimony by a character witness that the witness in question (the principle witness) is untruthful. Non-crucial witnesses provide a less-compelling need for 608(b)/confrontation questioning. The defense has a sixthamendment confrontation right to inquire into the credibility of the state's witnesses most important or "crucial" witnesses. in rare situations. (b) Extrinsic evidence of prior inconsistent statement of witness.
opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). • If a witnesses’ testimony differs on some point from her prior statements, the attacking party may cross-examine on these statements and (subject to some conditions) prove them by "extrinsic evidence" (i.e.: testimony by other witnesses) If a prior inconsistency is proved by "extrinsic evidence," generally the witness must have an opportunity "to explain or deny" it (unless "the interests of justice otherwise require"), and the adverse party (usually the one who called the witness) must have a chance to interrogate her. Note that sequence is not specified:
Generally, prior inconsistent statements are found in the following: • depositions • Prior testimony before a grand jury or in preliminary hearings; • insurance investigators who have seeked out witnesses and obtained formal written or recorded statements • investigators sent out by lawyers who obtain statements Problem 8-E: “He is trying to Sandbag Us” In a civil suit a man named Clemton (P) claims Dirk hit him with a shovel (D). P’s witness (Welch) testifies there was no provocation. On cross, D does not bring up the provocation issue. Then during the D’s case in chief D’s witness Murphey (a police officer who investigated the incident) testifies that Welch told him that he did not actually see the blow being struck, and thinks Clemton may have thrown a rock at D. Murphey is testifying as to the oral assertions of P’s witness Welch. This is extrinsic evidence of a prior inconsistent statement. However, this is the non-truth use of impeachment by a prior inconsistent statement. This is being offered for the impeachment value, not the truth use. • Problem: The P claims Welch is gone and has no opportunity to respond to the suggestion that he changed his story. D had a chance to put the same question to Welch, and deliberately did not. He should have laid the foundation back then. Rule 613(b) requires this. • Rule 613(b) is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. • Therefore Welch should have a chance to explain/respond to this statement. • Note, under FRE 611 (which grants “plenary authority in the judge to control the mode and order of interrogating witnesses and presenting evidence”) the court could have chosen to demand disclosure of impeachment or the possibility of extrinsic evidence directly following the admission of the extrinsic evidence, but it did not. However, using their discretionary powers, they chose not to. • The way FRE 613 will apply is if the witness is still available to testify. FRE 613 will not be admissible if the witness dies or becomes unavailable to testify. Basically, if the witness does not have an opportunity to
rebut/respond to the evidence, then the evidence cannot be admitted. If Welch is not available in this case, the testimony by Murphy is not admissible. Because Murphy’s evidence has already been said there are a few options 1. P should move for a mistrial 2. P should move for the evidence to be stricken from the record, and you should tell the jury to erase it from their memory 3. In the interest of justice, the court can leave it in the record 613(b). Therefore, the D here is making a tactical decision which is at risk of being stricken/mistrial buy not cross-examining the witness immediately after Welch’s testimony. VII. CONTRADICTION
Contradiction is not explicitly discussed under the rules. But it is simple logic that a witness cannot be allowed to go unchallenged when there is evidence that directly contradicts what he or she has said on the stand. it needs to be determined based on the weight of the evidence (using the principles of FRE 403) • Impeaching a witness by contradiction entails a showing that something he said in his testimony is not so. This can be accomplished on crossexamination, as questions force the witness to admit that he erred (even lied) on some point, but often it is accomplished by extrinsic evidence (testimony or something else, like a writing or recording), which for convenience we may call counterproof. • Note that if we label extrinsic evidence as counterproof, we are allowing its use for the form of impeachment known as contradiction. If we label it "collateral" we are excluding it. • If you can find some relevance the testimony will have in the case, this is counterproof and not merely collateral. Difference Between Counterproof and Collateral: • All contradicting counterproof has some impeaching effect but you can let it in if it has additional relevance in the case-some relevance independent of its contradicting effect. Three kinds of counterproof may be discerned in the cases: 1. Counterproof that not only contradicts but also tends to prove a substantive point 2. Counterproof that not only contradicts but tends to prove some other impeaching point, (for example bias) 3. Counterproof that only contradicts. This=collateral and the evidence is usually excluded, for it has no relevancy apart from contradicting the witness. • To avoid wasting time on trivial matters, we bar impeachment on collateral matters, admitting only counterproof that has dual relevancy in the case. • FRE 403 and FRE 611 are read to limit this form of impeachment. Contradiction and FRE 608(b)
Note that FRE 608(b) provides that an attacking party may cross-examine a witness on non-conviction misconduct "if probative of . . . untruthfulness" but that such misconduct "may not be proved by extrinsic evidence." • Doesn't that mean that if the witness denies the misconduct, the attacking party is simply stuck with the answer? • Doesn't FRE 608(b) in effect tell us that we cannot engage in contradiction in this situation? • FRE 608(b) regulates only one mechanism of impeachment, not others: It speaks to impeachment by showing untruthful disposition, not impeachment by contradiction. Malavet considers there to be three types of contradiction: 1. Substantive: it not only contradicts, but it also tends to prove a substantive point; goes to relevance—it has high importance to your case; it goes directly to the issue/crime 2. Something else: it not only contradicts, but tends to prove some other impeaching point (such as bias) 3. Collateral: it has no relevance apart from contradicting the witness. (no extrinsic evidence allowed) Problem 8-F “That’s Just Collateral” Oswald is charged with a robbery that happened in Seattle on July 14 at 7 p.m. He is claiming an alibi—Ardiss testifies to this point as principal witness during the defense case-in-chief. Ardiss testifies that he operates the restaurant in Portland, that Oswald is a regular customer, and that he was there for the entire evening on July 14. • Alibi= “At the time of the crime, I was in Portland, not Seattle.” This seems like a good alibi. • Prosecution asks if Oswald was in the restaurant during the weeks prior to July 14, or if he was gone for occasional periods of 3 and 4 days. Ardiss answered that he was in there every day during that time. • During the state’s case in-rebuttal, the prosecutor calls police detective Kinney. Kinney testifies that he saw Oswald on July 27 and that Mr. Oswald told him he had been in Seattle for the last couple of days. • Testimony by officer Kinney seems excludable under the collateral matter bar. Kinny’s testimony does not seem to prove a substantive point, so it is “collateral” as opposed to contradicting counterproof. • Samules, a waiter in the bar, testifies that Oswald was not there on the 14th. Samuels should be allowed to testify. This testimony not only contradicts, but supports the testimony that Ardiss was not there and therefore his alibi collapses. • Contradicting Ardiss should be allowed because he is the main witness for the defense. Your ability to contradict a main critical witness is admissible. The timing rules: 1. Courts disallow any attempt to repair credibility before the attack has come. In the specific context of character witnesses, FRE 608(a) states this principle directly.
Ex: "Remind me once again now. is that right?" OPINION AND EXPERT TESTIMONY With opinion/expert testimony you are establishing the distinctions between FRE 602 and FRE 701 or FRE 701 and FRE 702.2. (2) for the prosecutor to bring out that its witness has entered into a plea bargain. o That the opinion is helpful to the trial of fact o The witness cannot have a “legal opinion” (i.: they cannot say “I believe the defendant was grossly negligent) Witnesses Testifying to their subjective opinions • Lay witnesses are not allowed to testify to their subjective opinions and inferences about what someone said. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert. or other specialized knowledge within the scope of Rule 702. However. and (c) not based on scientific. This does not deprive the cross-examiner of the right to ask about impeachment information because the direct asked about it first. Some questioning on cross would still be appropriate. That is witnesses are Evidence Outline Page 142 . you said you have been twice convicted of forgery. the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness. I. technical. • The lay expressions of opinion or inference may be permitted but only if they are objectionably. rationally based on perception of a witness and are helpful either to the understanding of the testimony of the witness on the stand or helpful to the determination of a fact in issue. 4. and (3) for the calling party to bring out any connect on or affinity that she has with the witness (obvious grounds of bias that the other side would raise).e. it is permissible on direct (1) for the prosecution or the defense to bring out that its witness has been convicted of crimes.” 3. LAY OPINION TESTIMONY Rule 701. rational opinion or inference. and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Rule 609 contains no limitation that precludes a party from offering character evidence under circumstances where it anticipates an impeachment— however the event that triggers the rule is an “attack on the witnesses’ veracity. • Lay Witness opinion is admissible providing: o That the witness has personal knowledge—the witness observed something that is being described and can formulate a common sense.
it would be considered a confession that was objectively rational. She might well testify. On a point further from the heart of the case probably she could express such a conclusion. because how could he know they were going to ballet lessons? However. such that there was a “code” between the couple that only they can understand. but the inference should be stronger than the one suggested by these facts. rationally based. in the context of their relationship meant a confession. • The problem is that her rather broad but definite conclusion goes to the heart of the case and rests on a thin factual basis—intuition more than logic. The P asked the ex-girlfriend if Cox admitted to being involved in the bombing.“The Watchful Neighbor” There was a car accident between Pinkston and David. (See problem 9-A) Problem 9-A “It was My Impression” Cox is on trial for unlawful detonation of explosives. were rational. not an observation. The reasonableness depends on the situation. this is a Evidence Outline Page 143 . an eyewitness. Answer: Probably the testimony should not be allowed as not rationally based on her perceptions. Problem 9-B. Hanson. These are words that. Opposing Argument: It is rationally based on her perceptions based on what she knows about the defendant. for example. although were not an outright confession. If you can establish there was a long term relationship. that she was upset about the news clipping (a less definite conclusion that must still point toward some involvement by the defendant. This is a point of substantive importance—suggesting Davis was at fault: “plowed” seems to get you closer to a conclusion. This is a legitimate rational conclusion. Most likely. However. The defense objects saying it is opinion and calls for speculation. She answered that he never actually said that but it was her impression that his actions inferred he had blown it up. This is a conclusion. but it has to be objectionably.) • Witnesses are allowed “interpret” what friends told them.• allowed to interpret what their friends told them. is seeking to testify to things that he has inferred or concluded from what he observed. it is not important to the case. It will depend a lot on the particular relationship between the parties—a particular relationship may in fact put a witness in a better position to understand what the person meant and the conclusion will be rational. The P calls Cox’s ex-girlfriend who testifies that Cox told her twice that he would blow up cars for $50 and that he showed her a newspaper account of one of the bombings giving rise to the present charges. Examples: • He testifies Pinkston was backing out of her car to take her daughter to ballet lessons. In that case. The “rationally-based” conclusion by the witness has to be reasonable. and that they communicated in a particular way. it is possible the ex girlfriend could come to this conclusion rationally. the witnesses’ understanding will not aid the jury in their understanding of what Cox said and did. • He testifies the pickup (Davis’s car) plowed right into the side of the car. although the question is close.
He testifies the car was totaled with damages that looked like they were $5. He needs to stick to what he knows or thinks to be true. This is a question of law. He testifies the pickup was going well over 35 mph.e. However. A lay person has the capability of recognizing people even though there has been some changes in their appearance. he cannot testify to a medical diagnosis. He testifies Pinkerson had a “guilty look” The witness can testify to the apparent emotional state of Davis. This could also be a conclusion.e. he may be limited to describing the driver the best he can—he cannot guess. unless he has expertise on this He testifies “he looked like she was in a hurry” He can express this conclusion if he saw things which would reasonably lead him to conclude she was in a hurry—i.000. FRE 702) He testifies you can only go 20 mph at a school zone which is where the car was. she didn’t turn around to look. and that any movement of her torso produced a response of pain. He testifies he would “guess” the driver of the car is Davis-. however be careful of speculation (ex: “Davis feared license suspension and a lawsuit”) He testifies Pinkerson “was upset about the little girl” Appraisal of emotional condition is proper. But he can testify that the little girl was lying prone. He can describe physical damage. This could go either way. and seeing others doing so. but you can show this is within the normal level of knowledge a reasonable adult would have. are matters of common experience and well within the capacity of grown lay persons to estimate (FRE 701. or that everyone who takes the driving test must answer this question then you may establish this is within the normal knowledge of a lay person. He testifies there was a strong smell of pot and was sure the driver was smoking pot. the witness cannot testify to a dollar figure. that he drives all the time and has a normal level of experience with driving. This could be in the personal knowledge of a lay person (but think of how this may go over with a jury). Driving at such speed. however it is rational--a lay person who drives all the time would be able to answer that.: that he saw her enter the car in a rush. If the witness can do no more than guess. if you can prove there are lots of posted signs that say this.he is not sure if the person he saw driving the pickup is in the court room. if the witness can describe certain characteristics which describe Davis. though the conclusion that the car was totaled may need an expert opinion. which the witness cannot properly testify to.: the smell of marijuana requires expertise. etc. the way pot smells is not considered a part of common human experience—i. this is ok. He testifies as to what injuries Pinkerton had claiming Pinkerton looked like she had a broken back. or that she seemed unable to move her arm.) Evidence Outline Page 144 . etc. backup quickly. Unless the witness is a doctor. Clearly. Therefore. This is closer to expert legal testimony.• • • • • • • • • rationally based conclusion as long as an attorney lays the foundation that the witness had position to determine how the accident occurred.
II. 2. The subject matter must be appropriate for expert testimony Helpfulness/Assistance—the expert opinion must be helpful to the trier of fact and "assist the trier of fact to understand the evidence or to determine a fact in issue. Four basic requirements for expert testimony: 1. but in such cases a decision excluding such testimony might better rest on FRE 403. experience. (2) the testimony is the product of reliable principles and methods. technical." • Reliability: methodology underlying the expert opinion must be reliable. Testimony by Experts If scientific. and (3) the witness has applied the principles and methods reliably to the facts of the case. may testify thereto in the form of an opinion or otherwise. training. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. As a condition to admissibility. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Rule 703. • Relevant: it must fit the facts of the case • Where expertise is only marginally helpful because the subject is simple or familiar. Also keep in mind FRE 615[B](3) (allowing certain necessary witnesses to remain in the courtroom during other witnesses' testimony). 704 and 705. 703. the proponent of expert testimony must convince the judge by a preponderance of the evidence that the methodology is reliable and that it is relevant in the sense it fits the facts of the case. Rule 702. however it could be objected to if opposing counsel can show that it is not rationally based.• He testifies David did all he could do to avoid collision and could not have stopped in that short space. The witness must be qualified as an expert Evidence Outline Page 145 . special education or experience may add little or nothing to common jury understanding. 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 the expert at or before the hearing. if (1) the testimony is based upon sufficient facts or data. EXPERT TESTIMONY In evaluating the admissibility and the content of expert testimony you must consider FRE 702. skill. a witness qualified as an expert by knowledge. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. These conclusory appraisals are correct if he saw the whole incident. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. or education.
The expert should possess reasonable certainty or probability regarding the opinion • The opinion must be more than mere guess work. • The standard is intended to be lenient. books. because she has personal knowledge of that. (This could be testimony heard by an expert while sitting in the courtroom or information conveyed in a hypothetical summing up what has been previously admitted.) • Outside Information/Data: Facts that are of a type that experts in that field would reasonably rely upon in making out of court professional decisions. It must be something more than mere speculation (ex: a Dr’s opinion must be based on reasonable medical certainty. Problem 9-C—“They saw it the same way I did” The expert (Dr. but facts which are supplied to the expert in court by the evidence. • She can use knowledge from other experts to generate her own opinion as long as it is her own opinion.e. 3. What the Expert is allowed to testify to: • She is allowed to testify to the standard of care in Tampa. This is basically what is required of lay witnesses. • FRE 403 is in play here: we face the difficulty of admitting evidence susceptible of misuse of the information. (ex: the treating physician who examined the patient provides an opinion as to what was wrong with the patient) • Facts learned at trial: Facts not within personal knowledge.: you cannot say “the other urologists share my view”—You cannot say other experts agree with you or are vouching for you) Evidence Outline Page 146 .” Three acceptable basis for expert testimony: • Firsthand-knowledge: Facts within the personal knowledge of the expert that he knows of before the hearing. This is generally information the expert gleans before trial by consulting other sources.• The qualifications need not be formal or academic. • Rule 702 embraces people with practical experience but no formal training. but she can’t tell the jury what these outside sources said (i. Weaver) wants to testify as to what other urologists (11 colleagues) have said. • She can read treatises. The expert could base his opinion on hearsay. The opinion must be supported by a proper factual basis provided they are “reasonably relied upon by experts in the particular field. as long as he would reasonably rely upon it out of court in making professional decisions. (the prevailing standard of care in this area) She practices there as a urologist. and surely has insight and knowledge based on training and experience that help her address this matter.) 4. A person with suitable training or education may qualify even if he is not a specialist or not renowned. We allow her opinion to be based upon inadmissible hearsay (opinion of other people). and even if he lacks a certification or experience. It can be based on skills. and consult with other experts.
Your own expert can say the text is reliable and can read from the text the part that supports the opinion.) (ex: an expert could not testify that decedent had "capacity to make a will" but could testify that he knew "the nature and extent of his property and the natural objects of his bounty") • The reasoning behind this is the same policy reasons for hearsay—you can’t cross examine the other witnesses as to the basis of that opinion. breached the standard of care in Tampa. are you familiar with this treaty? Is it a standard work in the field?/Is it reliable?) 3. You can merely use them for your own opinion. This creates too much of an inference that the experts agree with her without them being available for cross examination. Opponent’s expert actually relied on the treatise in his direct examination 2. You CAN use it to impeach an expert (but you have to first establish it is reputable—can show in 4 main ways:) 1. • Cannot testify to the ultimate issue (i.e. The P has holes in the head. • You cannot substitute a treatise opinion or another Dr. • Other opinions can only be used to supplement the expert’s opinion Bottom Line: An expert must give her own opinion even if she relies on others.” An expert may testify if she relies “in part on consultations with other experts. Dr. An expert cannot bolster his or her testimony by testifying that a particular treatise or another Dr. If you Evidence Outline Page 147 . The federal rules have liberalized this standard: You can use a treatise in support of your own expert.’s position as your own. Weaver became a conduit for inadmissible hearsay (the opinions of other experts). Using a Text Treatise or Article: Can you get into evidence the content of a treatise or text of whatever discipline is at issue in the case? The major problem here is the hearsay rule. You are not offering the content for its truth. supports an opinion. You may call your own expert witness who says the treatise is reliable 4. • You cannot acquire knowledge specifically for a case and then use that knowledge of others to relay that to the jury. This is considered “hearsay opinions.What the Expert is NOT allowed to testify to: • The court says that unlike the other experts.” but still the expert may not be used as a conduit. The expert is claiming holes in your head do not have this effect. In Grey’s Anatomy it says having a hole in your head adversely affects life expectancy. You cannot turn other expert opinions into your evidence. (This is a form of expertise that is in writing made out of court). Therefore it comes in to impeach the credibility or impeach your opponent’s expert. Judicial notice—the judge can take judicial notice that this treatise/book is a standard book in the field. you are offering it to show the authorities aren’t all the same way.: Cannot say that a Dr. Elicit an admission on cross examination (ex: Dr. You can use this to impeach or rebut your opponents expert. The content is admissible for its truth (the learned treatise exception to the rule against hearsay). Ex: I represent the P who is suing the D alleging the D’s negligence caused serious injury to the client.
Qualifying a witness 1. but you can have the most qualified expert in the world and her field still has to be relevant to the case and her opinion must still have a reasonable basis. This information must be filtered through an expert witness (either your own expert in which the text will be supportive. There must be an expert on the stand. The judge must also determine if what the expert is testifying to is “scientific knowledge” that will assist the trier of fact. • experience. 2. It only comes into evidence by being “read” to the jury. 5. 2. The court will rarely appoint expert witnesses III. Reliability of Expert Testimony [Daubert. Qualifications are important. including degree and perhaps certificate or license to practice. Then comes the foundation. usually the first questions establish that the matter at hand could benefit from expertise. Two limitations: 1. (look at factors below that judge will rely upon in making his decision) 1. The treatise does not go to the jury. the sufficiency and acceptability of the data and the acceptability of the science is a question for the judge under 104(a) 4. or your opponents expert in which it will be contradictory) 2. SCIENTIFIC EVIDENCE Admitting Expert Testimony After Daubert: (Frye is dead: The question is how much of a lower standard have we allowed after Daubert) Preliminarily: The Judge decides whether the expert is qualified (FRE 104(a)). 402) "Relevant evidence" is defined as that which has "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. The reasoning or methodology underlying the testimony must be scientifically valid and the reasoning or methodology must be able to be properly applied to the facts in issue. When a party calls an expert witness.establish the document is a learned text treatise or article will be admissible for its truth as an exception to the rule against hearsay. FRE 702] Evidence Outline Page 148 . In the case of a professional person (such as a physician or engineer). The pattern is similar (usually less elaborate) with skilled people having informal expertise resting on experience. 3. Deciding whether a person qualifies as an expert. usually the calling party brings out: • educational background." The Rule's basic standard of relevance thus is a liberal one. such as employment or practice in the area to be covered by the questioning. Relevance of Expert Testimony (FRE 401. Note the difference between voir dire (presumptively to take place without the jury) and cross-examination (which takes place before the jury) in determining whether someone is qualified as an expert. and • familiarity with the subject in suit.
decide for yourself whether the plaintiff’s proof is valid science and admit or exclude accordingly." These cases liberalize the standard of what constitutes “good science” or “good expertise” under FRE 702—In other words. asking the proponent to show not only what the proof means and what it is. I'll do it because other scientists don't accept the proof and I can tell the expert it's not my opinion that counts.Under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only  relevant. the judge in weighing possible prejudice against probative force under FRE 403 of the present rules exercises more control over experts than over lay witnesses. and 703 were all amended in 2000 to require the court to exercise more authority over expert testimony. Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. United States) Children are born with birth defects because the mothers took a medicine which was told to cause.” Daubert v. Balancing probative value and the six FRE 403 dangers. The validity of the science becomes the major question—petitioners file a motion for SJ arguing the scientific knowledge put forth by the plaintiffs is not generally accepted practice (in other words. FRE 701. but also to show that scientists generally agree with it. the evidence should not be admitted because it is not generally accepted practice in the scientific community) • District Court. o Gives trial judge a way out o Frye allows the judge to say. (assist the trier of fact) but  reliable (an expert has “scientific knowledge”). (Frye). (FRE 704) This is always the final hurdle. if I exclude anything. at the admissibility stage. (this is highly disfavored method. Because of this risk. but it should be kept in mind at every stage). • Third. because you are basically putting a lot in the hands of the jury) • Second. Scientific Evidence: Assuming the experts are qualified THE JUDGE could: • First. the FRE superseded the Frye test of deferring to the “scientific community. 4. Merrell Dow Pharmaceuticals (overruled Frye v. defer to the broader scientific community for its judgment on the validity of the science. using the Frye standard. "I'm not going to let everything in and I'm not going to resolve scientific disputes myself. (However. (Daubert) o Malavet thinks this gives too much differential to the judicial community and too much difference on the jury to sort it all out. if the court applies Frye. 702. (a) Qualified Expert (b) Valid Science 3. admit the evidence because the experts are qualified and let the jury resolve the dispute. concluded opinions that diverge significantly from the procedures accepted by recognized Evidence Outline Page 149 . Here we have experts on both sides that were qualified under FRE 702. but the verdict of other scientists.
The Factors in Determining Scientific Knowledge: as noted above. Factors There is a distinction between scientific validity and scientific reliability. Peer Review and Publication: Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Scientifically Valid. but it definitely helps! **These factors should be weighed/balanced at the FRE 403 stage Criticisms of Frye and Daubert: • Frye excluded too much evidence that was probably good science. it has to be a legal evidentiary standard not a scientific one: meaning science does not have to be absolutely sure of the fact. However. It is up to the court to make this finding before the jury hears it. and the existence and maintenance of standards controlling the technique's operation.• • • • • authorities in the field cannot be shown to be generally accepted as a reliable technique. Florida is not a Daubert state. The trial judge acts as a gatekeeper.” See the factors below. Tested: Has the theory been tested? 2." and are taking more responsibility for risk management than they could handle. Cross examination and the presentation of contrary evidence will allow the jury to determine whether the proffered scientific evidence is ultimately credible." Implementation. FRE 702 gives us the scientific reliability standard. They have to apply the right procedures and that those procedures were followed during the testing. • With Daubert.) It must meet the requirements of Rule 702. we aren’t going to wait until science says this pill definitely caused the birth defects) Daubert makes it a legal rule of reliability: the science must be reliable enough to assist the jury (it is a lower standard than the reliability called for in Frye. as a matter of public policy. determining whether the proffered evidence is scientifically valid and relevant to the case at hand. to wait as long as scientists do to declare something science. General Acceptance: Finally.” (In this case. Frye is still the law in Florida. Courts are being flooded with "junk science. For purposes of litigation. not the requirements of “peer reviews. Evidence Outline Page 150 . 3. Florida has expressly declined to adopt more lenient Daubert standard. SC held the Frye test is too restrictive. Control Standards: should consider the known or potential rate of error. Scientific validity may be enough to make the testimony legally reliable. “We cannot afford. "general acceptance" can yet have a bearing on the inquiry—"general acceptance" is not a necessary a precondition to the admissibility of scientific evidence under the FRE-especially FRE 702. Factors (non exclusive) the court can analyze to determine whether a theory or technique is scientific knowledge: 1. Scientific reliability: does the application of the principle produce consistent results? 4. an inference or assertion must be derived from scientific methods and be supported by appropriate validation. 5.
not just to scientific evidence. Plaintiffs relied on deposition testimony from an expert in tire failure analysis. In the case there was an automobile accident. They would prefer de novo. Kumho Tire Kumho Tire generally expands Daubert to apply to all expert testimony. He claimed the tires failed and caused the crash." The Authors argue that while Daubert is not so bad." "technical. "amateur scientists. • The Rule. There is no clear line that divides the one from the others. • This testimony is clearly relevant because it goes to the improperly designed tire • It is being given by a qualified expert • The issue the court needs to determine is if this is accepted scientific methodology is considered “scientific knowledge. in determining the "admissibility of an engineering expert's testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gate-keeping. The gatekeeping inquiry must be "tied Evidence Outline Page 151 . Court said no! The Rules grant that latitude to all experts. • It would be difficult. not just to "scientific" ones." The trial judge must determine whether the testimony has "a reliable basis in the knowledge and experience of [the relevant] discipline. • The defense tried to argue the scientific knowledge requirement should not be used on non-scientific evidence. not just to "scientific" ones. or at least mixed law/fact review." Flexibility in Judging Reliability A trial judge. the P’s sued Kuhmo Tires saying the tires were faulty and therefore caused the crash. if not impossible. abuse of discretion review is. for judges to administer evidentiary rules under which a gatekeeping obligation dependeds upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge.• • Malavet says: o It is hard to deal with scientific evidence in courts of law o Judges have shown a reluctance to become. FRE 702 Rule applies its reliability standard to all "scientific. in respect to all such matters. and granted summary judgment for the defense." or "other specialized" matters within its scope. The factors which are considered depend on the specific type of issue you have before you determination. The ruling: • Extends the Daubert standard beyond the parameters of "scientific evidence" to all expert testimony • Lays such stress on flexibility and "discretion" that it seems almost to dilute Daubert. "establishes a standard of evidentiary reliability.” • The trial court ruled Carlson's testimony inadmissible because his methodology failed the reliability requirement of FRE 702 and Daubert. The Rules grant that latitude to all experts.
and • Science we are still skeptical of: Lie Detecting Tests.: determining the case as if no prior trial had been held) • They claim you should defer to the trial court on what the relevant factors should be used.e. the expert's particular expertise. • Scalia. they do not have discretion to perform the gatekeeping responsibility "inadequately. O’Conner and Thomas concurred in the opinion." • This means a trial judge has the discretionary authority.” depending on the nature of the issue. but review whether the trial judge came to the right conclusion based on those factors. The more subjective the decision is. There are exceptions: • Stuff that has been put into question • Junk science—such as speaking to the dead. • In Kuhmo. agreeing that trial judges have discretion to "choose among reasonable means" of appraising science. (i. Malavet says we have read enough to know the court sort of willy nilly decides what standard they are going to use depending on if they want to affirm or reverse. and the subject of his testimony. 104b Credibility-whether something was said Evidence Outline Page 152 . They think de novo review would be more appropriate. (FRE 702) Basically. ESP. you would want to use De Novo. to determine reliability in light of the particular facts and circumstances of the particular case. To AFFIRM: This was a factual finding and we are therefore deferring to the factual finding of the court TO REVERSE: This was a finding as a matter of law On the test." Generally. But in the decision regarding whether the factors match the conclusions the trial court came to. Notes from Review: Abuse of Discretion verses De Novo Err on the side of using the abuse of discretion review unless the judge has made a decision as a matter of law. reviewable for its abuse. The trial court is in a better position to determine what factors to consider. the more likely an abuse of discretion review will be used. So if you need to Affirm you would want to use the abuse of discretion. most fields are acceptable technical areas and acceptable science. truth telling Abuse of Discretion Standard: A court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to admit or exclude expert testimony. the SC held the District Court did not abuse its discretionary authority. Malavet will say this is the result you SHALL reach." This seems to suggest that abuse of discretion review may not be appropriate in this area.to the facts" of a particular "case. the trial court is fine as long as their holding is not clearly erroneous. If you want to reverse. the appellate court should be allowed to make its own conclusion on de novo review.
Bourgaly and Huddleston only deal with situations where you have predicate facts (independent facts that need to be established before a piece of evidence is admitted. Evidence Outline Page 153 . Scintilla standard under 104b A reasonable jury could find this (predicate fact) happened. Preponderance standard under 104(a) Its more likely than not this predicate fact happened.Prior Bad Acts-whether the act was actually done.) Whether you use 104b or 104a will determine who decides who whether the predicate facts occured.