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OUTLINE DETAILS: Author: School: Course: Year: Professor: Text: Text Authors: Anonymous University of California, Davis School of Law Evidence Spring, 2004 Professor Onwauchi Evidence, 10th Edition Waltz and Park
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Evidence Outline Relevancy
FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence
Inadmissible o 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. In order to be relevant, evidence must o Have probative relationship- evidence must make the factual proposition more or less likely than it would be without the evidence. o Material- must be link between the factual proposition which the evidence tends to establish and the substantive law FRE 401 Definition of Relevant Evidence o 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. o Knapp v. State ∆ charged with murder and claims that killed victim in self defense and had heard a story that victim had killed an old man. Prosecution intends to introduce evidence that old man died of natural causes. Is this evidence relevant. Held relevant. An item is relevant when it tends to prove or disprove, however slightly, an issue at trial. Here the fact that old man died a natural death makes it less likely that ∆ heard the story. o Sherrod v. Berry Officer shot and killed a robbery suspect because reasonable believed that reaching for his gun. Πs wanted to present evidence that victim was not armed. Held irrelevant. When the officer had reasonable belief that victim was reaching for the gun, the absence of the gun is irrelevant. 4 Part Test for Relevance o what fact am I trying to prove with this piece of evidence? o Is the fact that I am trying to prove a fact of consequence to this case? o Does the evidence help establish that fact? o What is the probative value of the evidence vs. risks of unfair prejudict. FRE 403 o Even if evidence is relevant, the judge can still exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Old Chief v. US D was charged with possession of weapon while having prior felony. D offers to stipulate that has prior felony but judge allows the prosecution to read the prior jury verdict from which new jury finds that D was convicted with assault. Held that probative value of the reading and stipulation same but the prejudicial effect of the reading very great. So trial judge erred. Ballou v. Henri Studios • Π sued for wrongful death of her husband. ∆ tried to introduce into evidence blood test showing that husband was highly intoxicated when died. Π presented testimony of nurse who said husband not drunk. Trial judge excluded the blood test because though was not reliable. Held, it is not the function of the trial judge to see whether evidence reliable or not. Under 403, the question for the judge is whether, if believed by the jury, the probative value of the evidence is substantially outweighed by unfair prejudice. It is up to the jury to determine the credibility and reliability of evidence.
Character Evidence FRE 405 o Reputation or Opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. o Specific instances of conduct In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. Cleghorn v. New York Central o Switchman failed to give proper signal and Π injured in train accident. Π introduced into evidence the intemperance habits of switchman. Held admissible. In this case, the evidence was not being introduced to prove that switchman was negligent. It was being admitted to prove knowledge by ∆’s officers of switchman’s intemperate habits. Character as circumstantial evidence o FRE 404(a)
in fact. as provided in Rules 607. o Michelson v. US The prosecution may inquire into prior acts of ∆ on crossexamination of ∆’s reputation witnesses. 608. and 609. Once the ∆ offers that good character. the prosecution has a duty to prove that the arrest or conviction did. In the course of cross-examination. acts that might affect ∆’ reputation or opinion. it is admissible even though it may also show criminal disposition. 4 . o Summary of 404(a) A prosecutor in a criminal case cannot offer evidence about the ∆’s bad character in his case-in-chief to show that the defendant committed the crime with which he is charged.evidence of a pertinent trait of character offered by an accused. Prosecutor can cross-examine Π’s character witnesses. A ∆ can offer character evidence to prove that he did not do it. all this may be done only after ∆ has called character witness. When cross-examination involves prior arrest or conviction. evidence of the same trait of character of the accused offered by the prosecution. the prosecutor can cross-examine those character witnesses. Or prosecutor can attack the character of the witness. • Character of alleged victim. • Character of witness. Evidence of prior-crimes offered for some other purpose than to show propensity o If evidence of other crime is relevant to some issue in the current case. except: • Character of accused. can present their own witness to present the bad character of the ∆.Evidence of a person’s character or a train of character is not admissible for the purpose of proving action in conformity therewith or a particular occasion. Prosecution after ∆ opens the can of worms. or if evidence of trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2). the prosecutor can inquire about specific acts in ∆’s past. Such evidence is limited to two forms: reputation evidence and opinion evidence. but to prove that the witnesses are really familiar with ∆’s rep. occur.evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same. 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.evidence of the character of a witness. or by the prosecution to rebut the same. REMEMBER. This is done not to prove ∆ has propensity to commit the crime charged.
however. Larger Plan Evidence may be used to prove the existence of a larger plan. Even if admissible under this rule. Advanced notice to the other party of such use is required. or acts is not admissible to prove the character of a person in order to show action in conformity therewith. plan. intent. 5 . or conspiracy. or absence of mistake or accident.g. then it is not admissible. preparation.o o o o o o o o FRE 404(b) Evidence of other crimes. of which the crime on trial is a part. opportunity. two officers tried to arrest ∆ and ∆ shot and killed one officer and wounded the other. such as proof of motive. Identity 1 2 But still subject to Rule 403. Other officer can testify as to the attempted murder at the murder trial.”12 Evidence of character can be used to: To show motive Opportunity Person had some special skill Intent Preparation of plan Knowledge (∆ knew cocaine not sugar) Identity Absence of mistake or accident Two important things to remember about Rule 404(b) Pre-trial notice requirement in criminal cases. be admissible for other purposes. is the evidence being offered to support a theory of relevance that would fit under Rule 404(b)? Could a reasonable juror find by preponderance of the evidence that ∆ committed the other crimes? Is the probative weight of the evidence outweighed by its danger of prejudice? Overall context Other crimes evidence may be used to place crime in context. E. Preparation Evidence may be used to show preparation for the crime charged. but still subject to Rule 403 Four Steps to Apply to Specific Act Evidence Is the evidence being offered as support for an inference that the ∆ acted in conformity with a general trait of character? If so. It may. wrongs. scheme. identity. knowledge. If not.
Cunningham • ∆ prosecuted for stealing some painkiller drug. Court held that this was not similar enough.S. Evidence of other crimes may be used to establish identity. deliberately. prosecution offered evidence that on one previous occasion. drug sales in balloons is common practice and same location is not enough. Prosecution introduced evidence that ∆ on previous occasions has purchased stolen property from W. Opportunity o o o 3 Courts usually require the crimes to be similar. US v. Carrillo • In order to establish that ∆ was the one who sold drugs to undercover officer. Evidence admitted to prove knowledge.3 Knowledge May be used to show that act wasn’t committed inadvertently or accidentally. Requirements: • The accused must deny his participation in the crime charged. 6 . o Intent Other crimes evidence may be used to prove that ∆ acted maliciously. ∆ was addicted to this drug. v. • The methods of other crimes must be so very similar to those used in the crime charged that the similarity is substantially probative of identity. and ∆ had previously lied to hide her drug addiction. Huddleston v. ∆ sold drugs in the same location to an officer in the same way (in balloons). Here.S. The modus operandi mehod of showing identity requires that the method used be uniquely different from the standard practice. Motive U. ∆ claims didn’t know that property was stolen. But this evidence was used to show that ∆ had a motive to steal which the other nurses who had access to the cabinet didn’t. U. • Court held that this evidence was admissible because it was not used to show that ∆ had the propensity to steal the drug. • ∆ prosecuted for knowingly receiving stolen property from W. Other crimes must be so similar in method as to be the signature of ∆. or with specific intent required by the crime. Prosecution introduced into evidence that ∆ had previously had her nursing license suspended for stealing the same drug.
Beasley Before admitting evidence of prior crimes. E. the prosecution must establish by plain.S. But opinion and reputation can be used by prosecution. o Perrin v. Six months later same thing and now ∆ charged.Usually this evidence is used to show that ∆ had access to the scene of the crime. aggressive behavior of party).g. o Under FRE. State ∆ found dead body in house and reported to police. the evidence of ∆’s other crimes may be given to the jury even though that other crime has not been proved even by a preponderance of the evidence. Evidence of specific incidents cannot be used as circumstantial evidence of out-of-court conduct (e. Holding: Evidence of a prior crime may not be used to prove common scheme or plan if ∆ not convicted for that previous crime. US. Cases where character is the 7 . Prosecution presented evidence of previous incident to show ∆’s intent and common scheme.Dowling v. clear and convincing evidence that the ∆ committed that offense. o Limiting Instructions: ∆ has the right to ask the judge to give limiting instruction to the jury so that the jury may not use evidence of other crimes for improper purposes (e. Anderson Officer shot son and at trial introduced testimony of four other officers to show the violent nature of son. to establish propensity). o Evidence of other crimes for which ∆ was acquitted can be used without violating the Double Jeopardy or Due Process Clause of the Constitution. o Tucker v. Video in class. Rule 404(b) requires that evidence of other crime be strong enough that the jury could reasonably find that the other crime was committed by ∆. ∆ not charged. Before evidence of collateral offense is admitted for any purpose. But courts are split on this issue. o U. ∆ had affair with V and that evidence used in V’s murder trial to show that ∆ could have entered V’s house without forceful entry. a trial judge must identify the exception that applies to admission of that evidence and evaluate whether the evidence is sufficiently probative to outweigh any dangers or prejudice to the ∆. o Huddleston v.g. v.g. or was present at the scene at the time of the crime. o Impeachment Other crimes may be used to impeach an accused who takes stand. US The district court need not make a preliminary finding that the prosecution has proven a ∆’s similar criminal acts by a preponderance of evidence before submitting the evidence to the jury.
in a nutshell Three ways to prove character • Opinion testimony • Reputation • Specific instances of conduct. describes a person’s general way of responding to a specific set of circumstances. Under FRE 404(b). whether corroborated or not and regardless of the presence of eyewitnesses. “Lara is very conscientious about the maintenance of her car. Character evidence. Character Evidence.” Halloran v. But can be used when character is an essential issue at trial.o main issue on trial (e. etc. the more likely is to be deemed a habit o regularity/consistency: the more regular the behavior. the more likely it is to be habit o degree of reflection: behavior is more likely to be habit if it’s unreflective or semiautomatic than if it’s volitional and conscious.g. plan.”CHARACTER “Lara checks the brakes on her car every Sunday before church. on the other hand. defamation cases). 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. 8 . Rape Shield Laws Etc. like to shave while sitting in tub not admissible because not relevant. o Suppose in this case ∆ had presented evidence. that ∆ likes a lot of cords in house.Can’t be used where used to prove 1. Reasoning: “One who has demonstrated a consistent response under given circumstances is more likely to repeat that response when circumstances arise again. Habit Evidence Habit evidence describes a person’s regular response to a specific set of circumstances. FRE 406 o Evidence of the habit of a person or of the routine practice of an organization. evidence of specific instances may be sued to show things like intent. circumstantial evidence of out of court conduct or character as main issue on trial. Virginia Chemicals o Issue: whether the prior incidents of the mechanic using the heating sources can be used (whether habit)? o Must be sufficient number of times to act to admit for habit exception. motive. evidence of prior specific incidents can be used.”Habit 3 factors whether habit or trait of character o specificity/similarity of situation: the more specific.
The motion. 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. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.In a civil case. and o evidence the exclusion of which would violate the constitutional rights of the ∆. serve the motion on all parties and notify the alleged victim or.Sex offenses cases. Evidence offered to prove any alleged victim’s sexual predisposition. for good cause requires a different time for filing or permits filing during trial. when appropriate. the alleged victim’s guardian or representative.o FRE 412. related papers. B. before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. • 2. relevance of alleged victim’s past sexual behavior or alleged sexual predisposition A. C. 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. or other physical evidence. file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court. in a criminal case. evidence offered to prove that any alleged victim engaged in other sexual behavior. a party intending to offer evidence under subdivision (b) must: o A. Exceptions • 1. Evidence generally inadmissible. and o B. • 2. and the record of the hearing 9 . o 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. injury. Procedure to determine admissibility • 1. • 2. the following evidence is admissible if otherwise admissible under these rules: o 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.
FRE 413 Evidence of similar crimes in sexual assault cases A. evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible. Held that it was constitutional error because it prevented the ∆ from presenting the entire defense. ∆ argued that this showed a pattern of conduct and showed consent and exclusion violated his 6th amendment rights. Evidence in question: witness who testified that victim started talking about Vietnam war and dead husband. Olden v. Trial court excluded the evidence. Evidence in question: at the time of the incident. B. Cassidy Victim and accused had prior sexual relationship. In a case in which the gov. determine whether a prior sexual relationship occurred. Ruling: Evidence could be excluded. US v. Rule 412. Court of appeals upheld the decision under rule 403 (interracial rape claim said that it would be prejudicial). allowing evidence of an alleged sexual assault victim’s prior sexual behavior. shall disclose the evidence to the ∆. Platero ∆ claimed to be officer and then raped the woman. not the judge. State v. ∆’s defense was sex was consensual and just lied in order to save relationship with coworker. including statements of witnesses or a 10 . ∆ claimed consent was given and victim lied to keep it from her boyfriend.o o o o must be sealed and remain under seal unless the court orders otherwise.any exceptionsdoesn’t really fit in. only one incident and also not similar to the current case. This was insufficient to show pattern. Such evidence is not always admitted but in this case different and evidence probative because boyfriend saw the victim coming out of ∆’s car.overruled. SC. and may be considered for its bearing on any matter to which it is relevant. requires that the jury. ∆ wanted to present evidence to show that living together and thereby establish motive. Kentucky Facts: bar and rape case. Evidence important to show motive to lie. in a criminal case in which the defendant is accused of an offense of sexual assault. the atty for the gov. intends to offer evidence under this rule. How to judge this case under 412(a) (could be excluded) 412(b). Probative value of the evidence very low. V was having affair with the coworker. Said can’t include unless show that victim made false claim before. 1.
including statements of witnesses or a summary of the substance of any testimony that is expected to be offered. at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. C. o Court does a 403 analysis and says that the act wasn’t similar enough. 11 . D. 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. this rule shall not be construed to limit the admission or consideration of evidence under any other rule. Issue was whether this evidence was admissible? o Court was worried was unfair prejudice. or • An attempt or conspiracy to engage in conduct described in paragraphs 1-4. B. at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. between any part of the ∆’s body or an object and the genitals or anus of another person • Contact. Elk Lake School District o High school counselor case. 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. a party who intends to offer evidence under this rule shall disclose the evidence to the party against whom it will be offered. without consent. between genitals or anus of the ∆ and any part of another person’s body • Deriving sexual pleasure or gratification from the infliction of death. C. Evidence at issue was testimony of school teaching assistant. this rule shall not be construed to limit the admission or consideration of evidence under any other rule. wasn’t detailed enough and was an isolated incident.summary of the substance of any testimony that is expected to be offered. or physical pain on another person. for purposes of this rule and rule 415. without consent. bodily injury. USC • Contact. Johnson v. o FRE 415 Evidence of similar acts in civil cases concerning sexual assault or child molestation A. “offense of sexual assault” means a crime under federal law or the law of a state that involved • Any conduct proscribed by Chapter 109A of title 18.
or impeachment. if taken previously. or a need for a warning or instruction. or feasibility of precautionary measures. o Holding: Evidence should be allowed. Most courts allow such evidence if ∆ shows that 1. Hearsay Hearsay is a statement or assertive conduct which was made or occurred out of court and is offered in court to prove the truth of the facts asserted. 12 . Also. Trial ct. 4 step test (LOOK AT PP) is the other offense sexual assault or child molestation? Is the other offense relevant? Could a reasonable jury find by preponderance of the evidence that ∆ committed the offense? Then rule 403 question? SIMILAR HAPPENINGS Simon v. Subsequent Precautions FRE 407 Subsequent remedial measures o When after an injury or harm allegedly caused by an event. Sometimes ∆ wants to introduce evidence that no such accidents have occurred in the past. evidence of the subsequent measures is not admissible to prove negligence. control. it is presumed to have more probative value than the risk. if controverted. Kennebunkport Facts: Old lady slipped on the sidewalk and sued the town. such as proving ownership. had there been any injuries. the trial judge has the discretion to exclude the evidence if the probative valued of the evidence is outweighed by prejudice. a defect in a product’s design. culpable conduct. the conditions were the same during the historical period as during the moment of Π’s injuries and 2. excluded this evidence.o But where past act is specific and detailed enough and similar. This rule does not require the exclusion of evidence of subsequent measures when offered for another purose. they would have been reported to the ∆. measures are taken that. Evidence of similar happenings is allowed if there exists a substantial similarity between conditions of the present accident and those surrounding the other accidents and the evidence is probative as a material issue in the case. would have made the injury or harm less likely to occur. Lady wanted to present evidence of witnesses who say about 100 other people fall at the same spot under the same circumstances. a defect in a product.
that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. o E. Why hearsay evidence bad: o Because declarant not under oath. English. if it is intended by the person as an assertion. This is not hearsay because testimony not presented to show that the floor was in fact wet. Three-step hearsay test o Is there out-of-court statement? o What does the statement assert? o Are we using the statement to prove that what it asserts is true? Performative Utterance o A performative utterance is an expression that serves to effect a transaction or that constitutes the performance of the specified act by virtue of its utterance. Estatemv v. two ladies asked him to have sex for money. Statements with legal consequences. FRE 801(a) o A statement is 1. Has to be presented to prove the truth of the facts asserted. W testifies that while at D’s bar. State v. P falls in store because wet floor.Question was whether husband or wife died in the plane crash.g. D’s wife testifies that D shouted at P “don’t step on the wet floor”. Sheriff wanted to testify that he heard husband say that he is still alive. D later refuses. an oral or written assertion or 2. o E. D tells P “you’re no-good thief who would sell his mother for a dollar. or so far tended to subject the declarant to civil or criminal liability. Women’s out-of-court statements not hearsay. E. D accused of running brothel. Murdock.g. FRE 804(b)(3) A statement against interest o A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest. But appellate court admitted it. According to the court. The mere fact that statement made was relevant and not whether true or not. jury can’t observe his demeanor.g. or to render invalid a claim by the declarant against another. is not subject to cross-examination. o E. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Court excluded this testimony.” Not hearsay because not used to prove the truth of the matter asserted in a slander lawsuit.g.Husband charged with killing wife and argues that another person confessed to the murder and accurately described the murder scene. Trial court excluded this statement as hearsay. nonverbal conduct of a person. Statement not hearsay because legally significant. Statements that are legally significant are not hearsay because not admitted to prove the truth of the matter asserted. The hearsay rule does not exclude out-ofcourt statements which are not offered for the truth of the matter 13 . this statement not made under oath so unreliable and obviously hearsay. D says “I’ll sell you my house for 2K” and P accepts.
E. it will not be hearsay because the statement is not being offered to prove its truth.. So not hearsay. is not at issue and danger of hearsay statements do not exist. the fact that it has been made is relevant. all objecting party can do is to ask for limiting instructions. ∆ tried to introduced statements of terrorists to show duress but trial court denied. that statement would still have been admissible. W testifies that V told D that he was going to cut off his balls and shove them up his ass. Johnson v. o Subramaniam v. Where. Here the credibility of the declarant. Public Prosecutor∆ claims that he is captured by terrorists and worked under duress. even if husband had made the statement “I am dead”. Two Definitions of Hearsay o Assertion-centered definition. Π presented evidence of previous bad reports made in other hospitals against the doctor and witness testimony about the bad reputation of the doctor. Note. Vinyard v. Effect on hearer or reader o If a statement is offered to show its effect on the listener. asserted.Π fell on slick sidewalk on ∆’s property and witnesses testified that they heard others complaint to ∆ that the sidewalk was slick. This evidence was admissible because it was not admitted to show that these opinions were true. In such instances. ∆’s attorney should ask for limiting instructions under such circumstances. Misericordia Community Hospital. Declarant’s State of Mind 14 .an out-of-court statement is hearsay when it depends for value upon the credibility of the declarant. ∆ claims self defense. but merely to prove the effect it had or should have had on the listener.an out-of-court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted o Delarant-centered definition. but to prove that ∆ had knowledge. Statements of the terrorists were not offered to prove the truth of the matter asserted but to prove duress. but to show that ∆ had access to this information when the hospital hired the doctor. regardless of the truth or the falsity of a statement. o Such statements also admitted in negligence cases to show whether hearer or reader on notice. RULE: Out-ofcourt statements introduced to prove notice and knowledge of unsafe conditions are not hearsay. Vinyard Funeral Home. This is not hearsay.Π sued ∆ hospital for negligently hiring a doctor who was incompetent. Inc. Court admitted this evidence because this evidence was not offered to prove the slickness of the sidewalk. Court of appeals said statements were not hearsay.g. in a murder case. the hearsay rule does not apply. Emotion: out-of-court statements may be introduced to show that they produced certain emotion in the hearer or reader. Arthur.
o Silence: Non-assertive Conduct: The FRE 801(a) limits the meaning of statement to a nonverbal conduct of a person that is intended by him as an assertion o U. out-of-court statements offered to prove state of mind of a party must be relevant to an issue in the case. Here the state of mind of the agent as the reason for the inception of ∆’s investigation is irrelevant. o Silence A person’s silence may in some situations lead to the reasonable inference that a particular fact is true.” Then Furman went there and found the bloody glove. the better’s phone calls were nonverbal conduct which was not intended as a particular assertion. Under the FRE. These statements were introduced not non-hearsay purpose.∆ sold drugs to an undercover agent. Prosecution introduced statement of a custom officer to the agent that ∆ was a drug smuggler. Held: in order to be admissible.A statement can also consist of nonverbal conduct of a person. although nonverbal. Π introduced testimony of manager who claimed that customers told him that Π was selling same product (in fact ∆’s product) at a lower price to other retailers. is nonetheless intended as an assertion. Not hearsay because shows state of mind of Furman and why he went there. implied assertions or non-verbal conduct are excluded from the hearsay rule. Hernandez. Statements of Conduct o FRE 801(a).Trademark infringement case where in order to show actual confusion. o OJ Hypo: Furman testified that he interviewed Kato and Kato said that “last night I heard thumping on the wall outside my room. o Untied States v. Statements were admitted not to show that truth or falsity of the statement but the fact that these statements took place. if it is intended by the person as an assertion.Statements of a bank manager promising to pay were admitted. Bank of Santa Fe. o 15 . o Fun-Damental v. Zenni Agents searching ∆’s house and received phone calls where people asked to place bets. Statements trying to prove ‘state of mind’ not hearsay.Statements introduced to show the state of mind of the declarant are not barred by the hearsay rule. Impeachment o W’s previous out-of-court statements used to impeach W’s current testimony are not hearsay because only used to show that W is changing story and not to show that those statements true. Gemmy. Prosecution argued that this statement used to show the state of mind of agent and why started investigation. o Assertive Conduct: conduct. o Ries Biologicals v. This statement is not hearsay because not used to argue that Π was selling at lower price but to show that confusion actually existed.S. v. In this case.
In this case. Brown • Tax returns filed fraudulently. • What is the evidence offered to prove US v. there was someone to take complain. US v. It might be helpful to ask 2 questions • Does the evidence contain statements which are assertions. Statement at issue was statement of IRS agent that 90-95% of tax returns were overstated.g. But there has to be certain safeguards: e. Two ways to admit absence of complaints • To treat such evidence as non-assertive conduct • To argue that not offered to prove the truth of the matter asserted. • Evidence as to absence of complains is not excluded under the hearsay rule when it is offered to prove that defects do not exist. the documents are not used to prove the truth of the statements contained within them. The evidence may have been offered to show that the Soviet agents know about ∆ and ∆ knew about the Soviet Agents. reasonable people under circumstances would make complaint etc. Jaramillo-Suarez • Government presented pay/owe drug sheets and other records found in ∆’s apartment to show the character and use of ∆’s apartment. • This could have been admitted as non-hearsay if it is offered to prove something other than what is contained in it. Rhodes • Case involved a soft film which was made by ∆’s cococonspirators. ∆ introduced evidence of the absence of complaints from other passengers to prove that the train car was not cold. held that hearsay because in order for the agent to reach that conclusion. • Drug related documents used as circumstantial evidence of the character and use of the place where they were found do not constitute hearsay. it was absolutely necessary for the agent to talk to the 16 . Silver v. • May qualify as statement of co-conspirators (discussed below) • Government may have presented film to show their incentive to follow Rhodes US v. Ct. but as evidence of the use and character of the place where they were found. NY Railroad • P claimed that got ill because of extreme cold temperature in ∆s train car.
offered to show that D was acquainted with someone from Missoula Hotel receipt offered to show that person whose name is on receipt stayed at that hotel on the night stated on the receipt.) Hearsay vs. most courts would allow statements because it’s being offered not principally to prove that the assertion on the physical document is correct but to prove some further inference. (e.g. Most courts under FRE 801 will not consider it to be hearsay on the theory that the tag is not being introduced to show its literal truth (suitcase ownership). lack of first-hand knowledge If W says “Car that hit him was a red Volvo” and you know that W is relying on P’s statement. offered to prove that the person to whom that plate is registered was somehow involved with the crime and the getaway. • Other objection ∆ could have made is lack of personal knowledge. the existence of a relationship between people. E. Although the agent purportedly testifies from personal knowledge. • In this case the government introduced the IRS agent’s testimony to prove that Brown did in fact overstate deductions on the returns that he prepared. Thus. envelope with postmark saying Missoula found in D’s apartment. the statements by the agent are used to prove the truth of the matter that they assert. E. • Dissent: IRS agent didn’t say that he relied on out-ofcourt statements. the proper objection is 17 . her knowledge is gained directly from relying on hearsay statements which cannot be examined by Brown or by the jury. but merely some inferred fact (when a person owns a suitcase. he probably has some involvement with the contents of that suitcase). • In all of these situations.g. W testifies that I saw that the getaway car had license plat ABC133. not offered to show that postmarked letter was in fact sent from Missoula but to prove that a person receiving a letter postmarked “Missoula” probably knows someone in Missoula.g.o o people and couldn’t’ tell just by looking at the document. and the like. the nature of an activity. E.g. Suitcase has the tag with the name John Doe. Circumstantial Evidence Courts generally ignore the hearsay problem in situations where proponent presents an out-of-court assertion on the way to trying to present circumstantial evidence about the nature of a place or item.
.g. or o testifies to a lack of memory of the subject matter of the declarant’s statement. 18 . or o is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2).] Exceptions & Exemptions o Four-step hearsay test Is there an out-of-court statement? What does the statement assert? Are we using the statement to prove that what it asserts is true? Even if statement is being offered to prove the truth of the matter asserted.” 2. o Dying Declarations Fed Rule 804(b)(2): • The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . I am dead).1. is it admissible under some exception to the hearsay rule? o Important! Keep in mind that the exceptions about to study. If W says “P told me that the car was red Volvo” then the proper objection is Hearsay. Result would have been the same if husband had said something completely different (e. “I am still alive. then not hearsay). Murdock Case. Two part test o What is the statement at issue? o Is the statement offered to prove the matter that it asserts? (if no.lack of personal knowledge. some require the declarant to be unavailable while others don’t. or o persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.g. In a prosecution for homicide or in a civil action or proceeding. a statement made by a declarant while believing that the declarant’s death was imminent. (2)Statement under belief of impending death. So not hearsay. FRE 804(a) Definition of unavailability • “unavailability as a witness” includes situations in which the declarant o is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement. . o [e. concerning the cause or circumstances of what he believed to be his impending death. this statement is not asserted to show that what husband was saying was true. or o is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. (3).
E. statement can be used in homicide and civil suits. In making its determination it is not bound by the rules of evidence exception those with respect to privileges. So if person becomes disabled. statement allowed under Fed rules but not under CL. State So in Soles. • A declarant is not unavailable as a witness if exemption. declarant has to be unavailable but not dead.g. Requirements: • Statement must be made while declarant believing that his death was imminent. – Soles v. or (4). couldn’t see the shooter so statement will more than likely not get admitted. if shot in the back. statements only allowed in criminal homicide cases. But under Federal Rules. Declarant has to have first hand knowledge. dying declarations only applicable in homicide and civil cases. 19 . the declarant’s attendance or testimony) by process or other reasonable means. • Must relate to circumstances of killing: declaration must be one concerning the cause or circumstances of what declarant believed to be his impending death. • Under CL. or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. or the admissibility of evidence shall be determined by the court. The judge makes the preliminary factual determination as to the admissibility of the statements and then the jury decides on the credibility. the existence of a privilege. FRE 104(a) questions of admissibility generally. Dying declarations may be admitted on behalf of the ∆. claim of lack of memory. refusal. But under the Fed rules. • Under Common Law. • Preliminary questions concerning the qualification of a person to be a witness. But still can’t use in non-homicide criminal cases. it was the role of the judge to determine whether statement made under sense of impending death. No such restriction in CA. actual death was required. inability. Four Step test for admissibility of dying declarations • Is the declarant unavailable as a witness. subject to the provisions of subdivision (b). as defined by FRE 804(a)(1)? • Is the statement being used in either a civil action or in a prosecution for homicide? • Was the statement made upon a belief of impending death? • Did the statement concern the cause or circumstances of what the declarant believed to be impending death? Under the Federal Rules.
while statements made within thirty minutes to an hour of the event are dealt with by a close look at the surrounding circumstances. o Three Step test for excited utterances Was there an exciting event or condition? Was the declarant under stress of excitement caused by the exciting event or condition? Does the statement relate to the exciting event or condition? o Rationale: where the event is so startling that the declarant’s reflective capacity is eliminated. Then prosecutor calls Y. Prosecution has a nurse Y who talked to A before B and claims that A felt that he was going to survive. 569 20 . Spontaneous and Contemporaneous Exclamations o FRE 803(2) The following are not excluded by the hearsay rule.Hypo: X charged with murder of A. • Should be overruled.4 FRE 104(c) Weight and credibility • This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. 4 For more on judge-jury allocationsee EM Pg. statements made an hour or more after the event are usually excluded. which is permissible. No if the judge is not convinced by the evidence of existence of the disputed preliminary factthat the declarant was aware of the imminence of death. B will testify that A told B that he was about to die and X did not shoot him intentionally. the nurse. even though the declarant may be available as a witness. A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition. X objects that Y’s testimony is inadmissible in view of the court’s ruling admitting A’s statement to B. Hypo: same facts as 1 except that the judge admits in evidence of A’s statement to B. Should B’s testimony be admitted: Yes if the judge believes that the declarant’s statement to B accurately reflected his state of mind a the time. even seeing photograph or newspaper may suffice. the declaration is unlikely to be motivated by self-interest or otherwise insincere. to testify before the jury to A’s statement to her. This is not second attack on admissibility. o Time Factor Rule of thumbstatements made during the exciting event or within half an hour afterward are usually admitted. It is an attack on the weight or credibility of the admitted evidence. o Sufficiently startling: physical violence is not required.
then ok.event. Present Sense Impressions o FRE 803(1) The following are not excluded b the hearsay rule. they must be made in connection with an act proven. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.g. That means that must have perceived the event rather than have learned about it from other means (e. o Two-part test for present sense impressions Is a statement describing an event or condition? Was the statement made while the declarant was perceiving the event or soon thereafter? o Perception The declarant must be a percipient witness. or immediately thereafter. • For declarations to be admissible in evidence as part of the excited utterance. • Hearsay statements do not need to be corroborated by an equally percipient witness in order to be admitted into evidence under present sense impression exception to the hearsay rule.”5 o Cases Tucker Insurance Exchange v. Jones • V claimed that D. newspaper) o Opinions allowed even a declaration that expresses an opinion may be admitted as long as it is an attempt to explain something that the declarant is perceiving. o There is no requirement that there be corroboration of the statement. sexually assaulted her and then she gave him a car chase. • NOTE: federal law is more flexible and if judge believes the wife. a police officer. the declaration need not explain or refer to the startling Compare this with federal rule on present sense impression where the statement of present sense impression must be one describing or explaining an event or condition. 21 . So shows that 5 o Under FRE. State v. wife introduced statements of deceased after his accident but one month before his death to prove that he died in the scope of employment. Michigan • In order to prove that deceased injured at work. In other words there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it. even though the declarant is available as a witness: Present sense impression. A police officer testified that he heard on his radio two people (probably truckers) saying that look at that little car chasing the police car.it is sufficient that the excited utterance is one relating to a startling event or condition.
But doesn’t fit under excited utterance because throat abnormality is hardly an event that causes shock or excitement in a physician. or o A statement by a person authorized by the party to make a statement concerning the subject. Albert Medical Center Π sued hospital for her throat injures. The statement is offered against a party and is o The party’s own statement. in this case. Π introduced a statement of another physician who after seeing throat said “who butchered you?” Statement hearsay because used to show that throat butchered. or o A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment. the agency or employment relationship and scope thereof under subdivision (d). o So categories of Admissions by party opponent Own statement 22 . For example. one person said look at that police car speeding and the other said look at that little car chasing the police car. Admissions By Party Opponent o FRE 801(d)(2) (d) Statements which are not hearsay • Admission by party-opponent. o Lira v. Also not under present sense impression because it was not shown to be a product of reflex. It was opinion based on experience and training rather than reflex. 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). But if just said that there is a police car speeding on highway 35.declarant’s identity need not be established and the declarant need not be present at the trial for the purposes of cross-examination. then more tricky. made during the existence of the relationship. or o A statement by a coconspirator of a party during the course and in furtherance of the conspiracy • The contents of the statement shall be considered but are not alone sufficient to establish the declrant’s authority under subdivision (c). So from this it can be concluded that declarants perceiving it. As evidence of her injury. in either an individual or a representative capacity or o A statement of which the party has manifested an adoption or belief in its truth. • IMPORTANT: You have to be able to tell from the statement that person perceiving it.
• Out-of-court statements of a ∆ made without the ∆’s personal knowledge regarding the cause of an accident are admissible against the ∆. Originally police thought murder @ 7pm and D stated that left house at 6:45pm. McCord • Personal injury action for death of Π’s intestate. FRE 801(d)(2) treats admissions by party-opponents as not being hearsay at all. Note: ∆ can testify that these statements were not based on his personal knowledge and the rest is up to the jury. Π introduced ∆’s own statements made to corner regarding the cause of injury and death of Π’s intestate. Later turned out that murder at 6:30pm. The accident was my fault) First hand knowledge not required. D’s statement may use D’s statement against him since it is an admission.g.o o o o o o Adoptive admission Authorized admission Admissions by employee/agent within scope of employment. Personal Admissions E.g. and • The party need not have had first-hand knowledge. This is so even though the statement is not a declaration against interest. D is suspected of murdering his wife. declaration against interest An admission need not be against interest when made An admission does not have to meet any of the requirements that are applied to declarations against interest • The party need not be unavailable • The declaration need not have been against the party’s interest when made. Reed v. Can be opinion or conclusion (e. Admission against party opponent vs. These statements are trustworthy because no one is likely to make statements against himself if those statements are not true. Nothing in rule requires that the statement be based upon facts personally known to the agent nor does anything else in FRE require an implied condition of personal knowledge. ∆’s statement were not based on his personal knowledge of the accident. 23 . He heard about the accident from other employees. during employment Admissions by co-conspirator during the course of and in furtherance of conspiracy Basic Rule for Admission of Party Opponent An admission of a party opponent is a statement made by your party opponent or by someone whose statements are attributable to your party opponent.
• A party’s intent to adopt. A’s conduct or silence justifies the conclusion that he knowingly agreed with B’s statement. subsequent case (statements made by a litigant in one case may be used against him in subsequent cases) • Guilty Pleaa guilty plea that is not withdrawn is generally admissible as an admission. Carlson • Police asked if ∆ shooting drugs and said no but wife called him a liar. Guilty plea which is later withdrawn may NOT be used in a later civil or criminal case. Girl said that had bags of money in their hotel room and ∆ just remained silent. Adoptive Admissions A statement is not hearsay if it is offered against a party and is a statement which he has manifested his adoption or belief in its truth. sued airline for rough landing and claiming that wasn’t able to work to her capacity after that. Hoosier • ∆ charged with armed robbery of a bank and prosecution presented testimony of a witness regarding statements made by ∆’s girlfriend in ∆’s presence. constitutes a preliminary question of fact for the judge. taking into account all circumstances. are admissible against him in the criminal prosecution as admissions. Civil pleadings. admissible as an excited utterance) DOES IT GO TO THE EXISTENCE/RELEVENCY OF THE EVIDENCE? THAT IS A JURY QUESTION DOES THIS FACT GO TO THE ADMISSIBILITY OF THE EVIDENCE?--> LEGAL QUSTION FOR THE JUDGE Hypo: Π. Most issues in this area involve implied adoption. a precondition to admissibility of statements under adoptive admission. US v.g. lawyer. agree with or approve of another person’s statement.o Pleadings: statements a party makes in his pleadings are treated as pleadings. State v. or his attempt to obstruct justice. In this case ∆’s non-verbal conduct is too ambiguous to be an adoption of his wife’s statements. the test: • Whether. (however. • E. Giving the jury this power will expose the jury to inadmissible evidence that is necessary to see if ∆ really adopted. When implied adoption situation. ∆ just hung his head and didn’t respond. Conduct as admission • A criminal ∆’s flight after a crime. ∆ 24 .
Then said.o presents records signed by Π in which she billed clients an average of 104 hours for 6 weeks after the landing. Mahlandt v. ∆ did not authorize driver to speak of the accident. Also. Representative admissions Admission is made by a person other than the party against whom it is sought to be introduced. none of the 801(d)(2) exceptions to the hearsay rule require personal knowledge. Admissible? Yes admissible as admission (not adoptive) Hypo: accident and Police officer said to ∆: the accident was all your fault. once it is established that the declarant is an agent and the statement in question was made within the scope of employment. Later Poos personally spoke to the president and explained the incident orally. So the first 2 statements admissible. v. After the accident. Requirements for Admission of Agent or Employee • The statement must concern a subject that was within the scope of the agent’s duties to act on behalf of the principal • The statement must have been made while the agentprincipal relationship was still in existence. Poos. However the board minutes were not admissible against Poos because no agency or servant relationship existed there. director of ∆’s center. but it is usable against that party because it was in some way authorized by him. ∆s express authority to driver to drive the truck does not grant driver authority to speak of the accident. • UNDER FRE801(d)(2) [a statement by the party’s agent within the scope of the agency and during the relationship]. a statement is admissible. immediately informed president with a note that wolf has bitten a child. Big Mack Trucking Co. • In order to be admissible against ∆. there is no reverse agency relationship which would make the minutes of the board admissible against Poos. driver spoke to the president and an officer regarding the faulty brakes. the statements of the driver to the witnesses must be authorized. Incident was also discussed at the director’s meeting. ∆ didn’t say anything. and ∆ remained silent. Also. Dickerson • ∆’s driver struck and killed another. This rule does not require that the declarant have personal knowledge of the fact underlying his statement. Wild Canid • Π alleged that bitten by wolf at ∆’ center. First statement yes but second no because now under arrest and right to remain silent. 25 . Admissible. • In FRE. I’m putting you under arrest because you are drunk.
E. excited utterance. the agency or employment relationship and scope thereof under subdivision (D). 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). experts were more like independent contractors then Employees. Other exceptions: Always consider other exceptions if don’t fall under admission. Mead Johnson & Co. • Court held that outside experts in a brainstorming session were not the agents of ∆. an agent’s statements are admissible against eh principal if statements are within the scope of employment. Quote from FRE 801(d)(2) • The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C). So all have to worry about whether the statement was made by the party’s agent or servant concerning a matter within the scope of the agency or employment. • NOTE: Under FRE 801(d)(2)(D).g. not under declarations against interest exception because it was not properly shown that driver was not available. • Agency relationship has 3 essential characteristics: o Power of agent to alter legal relationships between principal and 3rd parties and to principal and himself o Existence of fiduciary relationship toward the principal with respect to matter within the scope of the agency o Right of principal to control the agents’ conduct with respect to matters within scope of agency.o no excited utterances exception because driver not in shock or was speaking under nervous excitement. • In this case. regardless of whether the agent was authorized to speak. Even statements of previously acquitted co-conspirator may be introduced if the 26 . FRE 801(d)(2)(e) Statement by Co-conspirators Primary facts required to use statements by co-conspirators • Show that the party opponent and the declarant were members of a conspiracy • Show that the declarant’s statement was made during a conspiracy • Show that the declarant’s statement was in furtherance of the conspiracy NOTE: This exception is NOT limited to cases where conspiracy is actually charged. Sabel v. Also. made during the existence of the relationship.
When a conspirator joins an ongoing conspiracy. The second statement also didn’t further conspiracy and it was just mocking John’s ignorance of the activities of the club. if main members of the conspiracy arrested. 27 . Rationale for this exception: conspirators are partners in crime During the Course of • The statement must have taken place during the course of the conspiracy. Goldberg In furtherance requirement: statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy’s objectives • United States v. Procedure: Who is to decide whether requirements have been met? • Existence of the conspiracy and satisfaction of the other factual requirements is to be decided by the judge. two statements in which one coconspirator talked about the red curtain hund in the window of one or Doerr’s clubs as an invitation for trouble with the police and a second statement where Dale said that he cannot believe that John does not know what is going on. Doerr o In this prostitution conspiracy case. Yes. he is held implicitly to have adopted the earlier statements of fellow co-conspirators and these statements may be introduced as admissions against him.g. A and B begin conspiracy and then make statements. o FRE requires that statements of a co-conspirator must be made in furtherance of the conspiracy in order to be admitted against the other members of the conspiracy. not against the other members of the conspiracy. May those statements be used against C. He msut find that requirements are satisfied by a preponderance of the evidence. o E. • Ongoing conspiracy. But if prosecution succeeds in arguing that conspiracy continued after arrest. Then C joins. Statements made after the conspiracy has ended are admissible only against the declarant. requirements of the conspirator exception are otherwise satisfied. US v. then can be used. It is unlikely that the discussion concerning the red curtain was intended to lure M into conspiracy and it was just a narrative of a past event. the statements of the aresttes cannot be used against others.
Former Testimony o FRE 804(b)(1) Hearsay Exception • 28 . P has to have heard it. But statement alone isn’t enough. • Question of whether declarants are members of the conspiracy is the question of law for the judge. Fro jail. D yelled that left tire bad so keep it under 50. judge has to decide whether a reasonable jury could find that the preliminary fact exists. conspiracy to sell the drugs has ended upon arrest.g. Pillar is inside an apartment trying to sell cocaine to drug dealers. it would be admissible. is waiting outside. Is the letter admissible against Al Capone? • Inadmissible.the contents of the statement shall be considered but are not alone sufficient to establish the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision. It is a jury question whether P heard D or not. Might that statement be admissible against Al Capone? • Assuming there is other evidence besides the statement that they were members in the conspiracy. he writes to a friend and asks the friend to cover up the fact that he and Al Capone were involved in selling cocaine. HYPO: Mr. When the relevancy of evidence depends upon the fulfillment of a condition of fact. Pillar for possession with intent to sell. Al Capone. E. the court shall admit it upon. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. But a court need not determine by independent evidence that a conspiracy existed by a preponderance of evidence. He tells them that his partner. In order for D’s testimony to be relevant (that P assumed the risk). D claims that when P leaving. But before D’s testimony gets in.FRE 801(d)(2). In making its determination it is not bound by the rules of evidence except those with respect to privileges. Hypo: Undercover agents arrested Mr. o FRE 104(b) Relevancy conditioned on fact. the existence of a privilege. or subject to. or the admissibility of evidence shall be determined by the court subject to the provisions of subdivision (b). P claims that never heard so didn’t assume the risk. So can’t be used against Al Capone because not conspiracy to sell drugs o FRE 104(a) Questions of admissibility generally Preliminary questions concerning the qualification of a person to be a witness. P borrows D’s car and tire blows out.
(3). inability. Requirements for Former Testimony The hearsay declarant must be unavailable as defined in Rule 804(a) The testimony must have been under oath. refusal. in a civil action or proceeding. A declarnat is not unavailable as a witness if exemption. or. or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. in a civil case. or • Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so. or • Testifies to a lack of memory of the subject matter of the declarant’s statement. the declarant’s attendance or testimony) by process or other reasonable means. or in a deposition taken in compliance with law in the course of the same or another proceeding. against a predecessor in interest of the present party. 29 . or • Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2). or. claim of lack of memory. had an opportunity and similar motive to develop the testimony by direct. or (4). or • Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. or redirect examination. whether at a trial or hearing or similar proceeding. if the party against whom the testimony is now offered. There must have been an opportunity to examine the declarant’s testimony at a former proceeding with similar interest and motive. 6 So now moving to exceptions where the declarant has to be absent. a predecessor in interest.o o The following are not excluded by the hearsay rule if the declarant is unavailable as a witness6: • Former testimony: Testimony given as a witness at another hearing of the same or different proceeding. FRE 804(a) Definition of unavailability Unavailability as a witness includes situations in which the declarant • Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement. The prior testimony must have been given against the same party. cross.
This is to comply with Constitution’s Confrontation Clause. First-hand observer may orally recount the testimony. grand jury testimony of a witness who asserts the 5th. Two cement company owners testified at grand jury that were not influenced by ∆. similarity of stakes and similarity of parties. the ∆ never gets chance to cross examine. o Similar motive: FRE requires similar motive This is required because if the adverse party had no incentive to cross-examine. even those prepared for use in a trial or other proceeding because they are not given at a hearing. it must be shown that the o 30 . oath. o Direct examination: If party opposing the former testimony had opportunity to do direct examination. Actual cross examination not needed. So only time when grand jury statements can come in when ∆ wants to use. o In a grand jury. United States v. the solemnity of the occasion.Rationale: Cross-examination. Later these two take the 5th. or at least reasonably could and should have been performed. • Holding: In order to permit a criminal ∆ to introduce. against the government.we don’t have the requisite assurance that equivalent cross-examination was. and in the case of transcribed testimony the accuracy of reproduction of the words spoken. Statements made to police or other law enforcement officials. ∆ wants to introduce the grand jury testimony of these two witnesses. because the issues were different. All that is required is an opportunity to cross-examine.for instance. this will be considered equivalent to the opportunity to conduct cross examination. Similar motive can always be shown if similarity of issues. o This exception is not limited to transcripts. o Testimony must be given under oath. all combine to give former testimony a high degree of credibility. Salerno • ∆ charged with organized crime of influencing and controlling local cement companies. But very difficult because prosecution doesn’t have the same motive to cross examine in a grad jury proceeding than as in a trial. o Meaning of hearing and proceeding: what is covered A prior trial A preliminary hearing in a criminal case A grand jury investigation A suppression hearing in a criminal case A deposition o What is not covered Affidavits. or the stakes were very different. o Opportunity to cross-examine.
Victim’s parents sue OJ for wrongful. that a party cannot introduce the prior testimony of a witness at a civil trial against a part in a subsequent criminal trial. Hypo: OJ’s limo driver testified at his criminal trial that OJ wasn’t home at the time of the crime. had an opportunity and similar motive to develop the testimony by direct. Also. the former testimony of the witness could not be introduced at a later criminal trial because the criminal defendant has not had the opportunity to confront the witness in his criminal trial.o o o government has the same motive at the trial as it did at the grand jury hearing. Identity of parties: it is not required that both parties be the same in two actions.testimony admissible if the party against whom the testimony is now offered. 31 . must have been made under oath. if the deponenet is unavailable at trial. So if in this case if the civil action had occurred first. a predecessor in interest. or. “Predecessor in interest”. the same party requirement is strictly followed. had the same motive in cross-examination as the party against whom the evidence is now offered. All that is required is that the party against whom the former testimony is offered must have been a party to the prior proceeding. But in criminal cases.g. Note however. regardless of whether the opponent had the same motive to cross-examine.the cost guard case. but also when the party who cross-examined the witness at the former trial. Traveler’s Fire v. or redirect examination. E. Sixth Amendment’s right to confront. This requirement is fulfilled not only when the parties in both trials are identical. Limo driver’s testimony can be used in civil trial because OJ’s lawyers had the same motive to cross examine driver in criminal trial that they do now. in a civil action or proceeding. Wright • The former testimony exception requires proof that the witness whose testimony is being introduced is unavailable fro the subsequent trial. Former testimony of the witness however. cross. OJ acquitted. This requirement is fulfilled if witness takes the 5th. American. the party against whom the testimony is being offered must have had the opportunity to crossexamine the witness at the former trial. Lloyd v. This means that the parties at both trials need not be identical. FRE 804(b)(1).courts have held that this requirement means that a person with a like motive to develop the same testimony about the same material facts. Depositions: Depositions are admissible at a trial of the same action. Then limo driver leaves the county.
In a criminal case. o Williamson v. statements were not in their interest. H refused to testify and prosecution introduced H’s statements as against his interest. if the statement tends to expose the declarant to criminal liability and to exculpate the accused. General Casualty Co. o G. So this complicates things because portions of statements which are 32 . A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. or to render invalid a claim by the declarant against another. Holding: FRE 804(b)(3) does not allow admission of non-selfinculpatory statements even if they are made within a broader narrative that is generally self-inculpatory. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or propriety interest. the statement is not admissible unless circumstances corroborate the statement.M. or so far tended to subject the declarant to civil or criminal liability. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. o Requirements for declaration against interest The declarant must be unavailable as defined in Rule 804(a) The statement must have been so far against the declarant’s interest when made that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. At W’s trial. had personal knowledge of the fact. and • He had no probable motive to falsify the facts stated Here employees admitted to embezzling money and admitted because employees not available in jurisdiction. and no motive to falsify the facts. United States H found with 19K cocaine and indicated that cocaine belonged to W and H was suppose to deliver to W. Declarations Against Interest o FRE 804(b)(3) Thoe following are not excluded by the hearsay rule if the declarant is unavailable as a witness • (3). McKelvey v. Statement against interest. of America Requirements for statement against interest • The person making such declaration is either dead or unavailable as a witness due to sickness. insanity or absence from the jurisdiction • The declarant had peculiar means of knowing the facts which he stated • The declaration was against his pecuniary or proprietary interest.
Would confession repeated by the wife inadmissible hearsay? It is hearsay but is admissible but fits under exception (RULE 801(D) admission of party opponent. o Adkins v. or terms of declarant’s will. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. This is not hearsay at all because showing state of mind. emotional. Now suppose woman dead: statement might be used motive and opportunity. emotion. design. Now suppose the husband is found dead. property etc. because social ridicule it counted Declaration Against Interest Admission of Party Opponent Declarant must be unavailable No unavailability requirement Based on personal knowledge Requires no personal knowledge May be offered against anybody Offered against party opponent only Against interest at time made Can be in interest at time made State of Mind o FRE 803(3) The following are not excluded by the hearsay rule. and bodily health). o re: Fatal Attraction Clip: what about confession of Michael Douglas. revocation. pain. H repeats in court W’s earlier statements that D could give W a better time than P could and that W now dislikes P Heldstatements admissible.truly self-inculpatory can be admitted into evidence under this exception. When intention. sensation. wouldn’t fit under 804 because not against peanl. interest. Would testimony of wife obviously hearsay. A statement of the declarant’s then existing state of mind. would it be inadmissible hearsay. mental feeling. • IN CA would be admitted. feelings or other mental state of a certain person at a particular time is material to the issues under trial. Brett H sues D for alienation of W’s affection. motive. even though the declarant is available as a witness The existing mental. plan. identification. evidence of such person’s declarations at the time indicative of his then mental state. o Hypos 33 . even though hearsay. is competent as within the exception to the hearsay rule. or physical condition. and woman is on trial. or physical condition (such as intent.
a reasonable inference can be drawn that it continued until day 5. • On day 10 D said “I love my niece more than children”admissible. even if the intentions involve another party’s actions. • On day 1 mother said “I love my niece more than my children”admissible. United States V said “My husband has poisoned me”. Mother unavailable and against her property interest. The Hillmon doctrine allows admission of hearsay statements to prove intentions of a declarant. Statement used at trial to show that cousin was sane inadmissible because not presented for state of mind but to prove the truth of the matter asserted On day 5 mother gave necklace to niece and day 20 died. Pheaster D was charged with kidnapping L. 34 .o o o B’s statement “I believe that person was the one who robbed the bank” at person’s bank trialnot admissible because based on memory. Hypos Question whether V with A? • “I am going to parking lot tonight” admissible • “A is going to the parking lot tonight” inadmissible because it is D’s statement of Angelo’s intent. Based on memory. Mutual Life Insurance v. But could be admitted as statement against interest. it may be proved by contemporaneous oral or written declarations of the party. Gov used statement of L to friends before kidnapping indicating L’s intentions to meet Angelo in the parking lot of a restaurant. No memory danger here • D said to children at family gathering “I gave the necklace to niece. too bad kids!” Inadmissible. • “I will not go out with anyone other than A tonight” evidence shows that A left apartmentAdmissible under state of mind exception although A is mentioned the statement only describes V’s own state of mind. To prove that W had gone to Crooked Creek with husband introduced into evidence W’s letter to family indicating his intent to go to Crooked creek with H. United States v. Shepard v. Children want necklace. Declarant had that state of mind 4 days before the alleged loan. Not admissible under present state of mind because used to prove a past event. D said of his older cousin “I believe he’s as sharp as he ever was”. Hillmon Π claiming that dead body of husband but insurance claiming that body of W. When intention of a party is in itself a distinct and material fact in a chain of circumstance.
It is circumstantial evidence of what the declarant’s state of mind probably was at an earlier time. or physical condition (such as intent. pain. o Hypo: “When I ripped the will. a police officer. plan. A can ask for limiting instruction stating that evidence only show V’s intent and not to how A’s intent. pain. Hypos B charged with killing V and B claims that accident when both cleaning a gun and went off • V’s statement “I hate B”. Medical Diagnosis or Treatment o The Following are not excluded by the hearsay rule. even though the declarant is available as a witness 4. A statement of the declarant’s then existing state of mind. He threatened to kill me. Statements made for purposes of medical diagnosis or treatment and describing medical history.• “I am going to wait at home for A until he picks me up and we will go out” admissible to show V’s intent to go out with A. or physical condition. But only to show V’s animosity or fear. or past or present symptoms. o Hypo: “I don’t wanna give _____ a cent? This statement would be admissible. or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. X told him that he was just sick and grief-stricken over A’s death. o Three-Step Test for Statements For Medical Diagnosis Was the statement made for the purpose of seeking medical diagnosis or treatment? o 35 . or terms of declarant’s will. revocation. design. X calls B. and bodily health). Prosecution could argue that present state of mind and makes it less likely that both cleaning the gun together. o FRE 803(3) The following are not excluded by the hearsay rule. even though the declarant is available as a witness The existing mental. it is admissible because of the last exception (“revocation”) o Hypo: X charged with murdering his brother. Statements for purposes of medical diagnosis or treatment. A limiting instruction would be needed. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. emotion. Admissible as present state of mind. or sensations. mental feeling. I didn’t want to give this person a cent? Even though this is past event.” NOT HEARSAY because not used for its truth. motive. sensation. identification. • V told friend “B has been stalking me. emotional. to testify that several hours after the shooting.
he is still considered to be subject to cross-examination. It is not relevant to seeking medical treatment. In this case. Also. Doc asks what happened to arm child says “My father burned me”. and courts usually exclude parts of statements that attribute fault. and the statement is…(c) one of identification of a person made after perceiving the person. Identification 801(d)(1)(C) (d) Statements which are not hearsay. P told doctor “my neck has been hurting for six monthsadmissible because made for medical diagnosis and treatment. Therefore. V suffers from loss of memory. Under FRE 801(d)(1)(c) out-of-court identification statements qualify as non-hearsay if the declarant testifies at trial or hearing and is subject to cross-examination. Owens V beaten badly and at hospital identifies D. Requirements of prior identification 36 . it attributes fault to another person. no violation of the confrontation clause. A statement is not hearsay if • Prior statement by witness. Here admissible under 803(4) even though identity of guilty party revealed. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.o Prior o o o Does the statement describe medical history. If declarant is present but has completely lost his memory. Child abuse cases present special problems. pain. Statements made to forensic physicians whose only function is to provide testimony fall within the ambit of the rule because of the rule’s reference to “diagnosis”. At trial. or sensations.Personal injury action P said to friend my neck hurtsadmissible under 803(3) as present physical condition. V was available at trial even though he testified to lack of memory. “I slipped an fell on a banana that was dropped by a stocker” – “I slipped and fell on banana” is admissible under 803(4) but the portion of the statement attributing the dropped banana to the stocker is inadmissible. 5 year old child. or the cause or external source of the injury? Was the statement reasonably pertinent to obtaining medical diagnosis or treatment? Hypos. United States v. P told same to doctor only for testifying at tiraladmissible under 803(4). or past or present symptoms.
The statement must one of identification of a person made after perceiving Hypo. Same results.V testifies that robbed and next day went to police station and identified the right person. D passed by and V yelled that is the man who robbed me admissible. Police officer testified that while V at station. One thing to remember is that if recollection based on writing. The witness then testifies to his or her recollection of the fact or event. AdmissibleNO has to be a person. Past recollection recorded Present recollection received. crossexamine the witness about it. and introduce parts of it that are relevant to the testimony. Baker v. But now can’t remember who he identified. FRE 612 – SEE EE Pg. Can officer testifyno. Evidence is what the witness testifies after the memory revived not what he/she looked at. V’s identification of D made after perceiving D. has to present for corss-examination The robbery victim testifies at trial that he identified D’s car out of court. Foundation for Present Recollection Refreshed The witness testifies to an inability to recall a fact or event. The FRE doesn not specifically require the witness be able to recollect making the identification. The witness indicates that a certain writing or object could help refresh his or her memory The proponent has the writing marked as an exhibit for identification and shows the writing to the witness The proponent asks the witness to read the writing silently The witness testifies that reading the document has revived a forgotten memory of a fact or event.Same facts as above but now V doesn’t even remember making the identification.The robbery victim identifies D at a line-up but at trial too sick. be prepared to present the writing to the other side. the opposing party is entitled to see the document. State 37 . Present recollection received is not an exception to the hearsay rule.o o o o Past o o o o o o The declarant must testify at the trial or hearing and must be subject to cross-examination concerning the statement. Recollection Recorded Three different ways Refreshing memoryWitness just recalls what he saw heard etc. Hypo. 250 When a witness uses a document to refresh his recollection and then testifies from present recollection refreshed. It is just used to bring back the memory of the witness. V also subject to crossexamination Hypo.
A report or memorandum prepared by another party may be used to refresh a witness’ memory at trial. Adams v. 26 Foundation for Past Recollection Recorded The witness must have personal knowledge of the fact or event recorded 38 . shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. NY Central Railroad Insurance agent can’t remember the interview with Π so show him report that he prepared after interview. D claims that while Officer with V and confronted D. then more stringent standards and requires personal knowledge.o o o o o D on trial for murdering V. The requirements for this rule Witness must have personal knowledge of the fact or event recorded The witness must now be able to remember that event or fact sufficiently to describe it fully and accurately The witness must have prepared or adopted the record at the time the event was fresh in his memory. FRE 803(5) The following are not excluded by the hearsay rule. V said that D didn’t kill him. If admitted. the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. The document must be the record that was made. In this case. O can’t recall the incident so D attempts to introduce a police report prepared by another officer to refresh O’s memory. The record must be accurate recording of witness’s recollection of the even or fact. Admitted that prepared after interviewing Π but could not refresh his memory. A written statement prepared by a witness may not be admitted as a past recollection recorded if the witness’ memory is not refreshed by the written statement. PLEASE SEE HYPO FOR FEB. even though the declarant is available as a witness: • (5) Recorded recollection: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately. report used for present recollection revived so not actually being admitted into evidence but just providing the stimulus. Important thing to remember is that it is not admitted into evidence but only read into evidence. But if Past recollection recorded.
Rule 902(12).The witness must now be unable to remember that even or fact sufficiently to describe it fully and accurately The witness must have prepared or adopted the record at a time whent eh fact or event was fresh in his memory The record must be an accurate recording of the witness’s perception of the event or fact The document must be the record that was made. association. person opposing the introduction of records has burden of showing lack of trustworthiness o FRE 805. all as shown by the testimony of the custodian or other qualified witness. institution. record. made at or near the time by. or a statute permitting certification. or data compilation.doesn’t have to be for profit) It was the regular practice of the business to keep this type of record and the entries in the record were made close to the time of the event to which they relate The source of the information must have had personal knowledge There must be real business purpose for accurately recording the particular piece of information the party wants to rely on There is a proper authenticating witness on the stand who knows about this business record and can supply the other elements of the foundation The record is trustworthy. o Elements of Business Records Exception The records in question maintained by an activity or organization that comes within the broad definition of business (almost any institution. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. if kept in the course of a regularly conducted business activity. o Under FRE. Lutz 39 . occupation. whether or not conducted for profit. opinions. in any form. a person with knowledge. report. The term business as used in this paragraph includes business. report. conditions. and calling of every kind. or from information transmitted by.Double Hearsay H included w/in H is not excluded under H rule if each part of combined statements conforms w/an exception to H rule o Johnson v. of acts. and if it was the regular practice of that business activity to make the memorandum. Business and Public Records o FRE 803(6) The following are not excluded by the hearsay rule. events. record. A memorandum. even though the declarant is available as a witness Records of regularly conducted activity. or diagnoses. or by certification that complies with Rule 902(11). profession. or data compilation.
803(1) and 803(2) officer under biz record. The medical records themselves fell within the biz rec exception. Holding: It is not within the regular course of a hospital’s business to make detailed record of the manner in which the patient was injured. Introduces hospital record to show the manner of accident. Biz records prepared form other admissible biz records or non-hearsay statements are permitted under the biz records exception. Hypos A sues B for accident and this is what police report includes • “I was standing at beat and saw B hit A” admissible under FRE 803(6). Williams v. The bystander’s statement is a good example of a question that is intended to make an assertion. but anything the opponent says is admissible. • “I arrived a few minutes later and B said he fell asleep” admissible under 803(6) and 801(d)(2)(A) 40 .o o o Wrongful death action and P wants to introduce police report which has statements of witnesses that D’s truck hit P’s whatever. So don’t’ fit under BRE. Duncan Ds charged with insurance fraud for staging accidents. Insurance reports admitted and these reports based on medical records and doctor statements. US v. How could the ∆ avoid the problem? Have the doctor testify and though still hearsay.biz record • “I arrived 20 minutes later and notice skid marks leading to B’s car”admissible under 803(6) • “I arrived 5 minutes later and bystander yelled ‘did you see that car run the red light’”admissibe under 803(6). Statements of third parties contained within a written report prepared during the regular course of business may not be admitted into evidence under the business records exception. The purpose of this exception is to admit into evidence business records without calling to the stand those who had the obligation of preparing them. It was not intended to exclude form hearsay otherwise inadmissible hearsay statements of third parties who are under no duty to report. The doctor’s statements under the authorized admissions or agency admissions rule. D hit him with car. Alexander P claimed that while crossing street. D claims that he stopped but car behind smashed into his car. bystander under present sense impressions or excited utterances.
not in railroading.o o o “I arrived few minutes later and officer Jones told me that B hit A” Admissible under 803(6) because both officers within the organization • “I arrived few minutes later and Officer Jones told me that B told him that fell asleep” Admissible under 803(6) and 801(d)(2)(A) FRE 803(7) Following are not excluded by the hearsay rule. not in business. record. report. or data compilation was regularly made and preserved. Made in “regular course of business Palmer v. Evidence that a matter is not included in the memoranda reports. Baker • Accident and report created by someone not a party in the accident. Unlike Palmer. records. payroll or accounts receivable records. the accident reports are calculated for use essentially in the court. even thought eh declarant is available as a witness (7) absence of entry in records kept in accordance with the provisions of paragraph 6. But still have to be trustworthy so accident reports like in Palmer may be still ruled as self-serving. kept in accordance with the provision of paragraph 6. • Supreme Court concluded that accident report did not qualify under the statute since it was not in the regular course of railroad’s business. Hahnemann v. or data compilations in any form. engineer interviewed and report made. if the matter was of a kind of which a memorandum. Reports were prepared in the regular course of the railroad’s business and they were writted at a reasonable time after the accident. say. Unlike. Dudnick Once a foundation is laid. Their primary utility is in litigation. unless the sources of information or other circumstances indicate lack of trustworthiness. Lewis v. Court said falls under the business record exception. to prove the nonoccurrence or nonexistence of the matter. Hoffman • After a railroad accident. computerized business records are deemed trustworthy unless the opposing party presents evidence to question their reliability. The fact that accident reports may ultimately be used in a • 41 . There is no requirement that the making of such records be frequent or routine. made by employee who is not a party. Modern Fed rule • Modern statutes are more lenient and require merely that it have been the regular practice of that business activity to make the memorandum.
statement. you can prove absence of public record or entry. or data compilations. o FRE 803(10) following not excluded even if declarant is available as a witness Absence of public record or entry. the activities of the office or agency or b. excluding. in civil actions and proceedings and against the Government in criminal cases. Yates v. in any form. statement or data compilation in any form. setting forth a. so it is not even hearsay. in any form. o Some ways gov.police report Antitrust Plane crash Job discrimination 42 . Records. however. • Re: trustworthiness • Reports by Π’s physicians are self-serving w/no added degree of trustworthiness. was regularly made and preserved by a public office or agency. o VS Business record exception o Does not require materials recorded regularly o No need for sponsoring witness if public record certified o Judges will often take judicial notice that record is public record o Use of public records allows the person offering the evidence to put in evidence based on reports of someone who is not part of the public office. or data compilation. in criminal cases matters observed by police officers and other law enforcement personnel. matters observed pursuant to duty imposed by law as to which matters there was a duty to report. or data compilation. unless the sources of information or other circumstances indicate lack of trustworthiness. of public offices or agencies. or testimony. reports.lawsuit does not exclude those records from evidence if all the other requirements of the business records exception are satisfied. Also can argue that is absence of something isn’t even an assertion. reports relevant Accident. or entry. statements. o FRE 803(8) The following are not excluded by the hearsay rule. report. report. o Few Good MenUnder FRE 803(10). or the nonoccurrence or nonexistence of a matter of which a record. that diligent search failed to disclose the record. statement. report. Bair Transport Inc. evidence in the form of a certification in accordance with Rule 902. TO prove the absence of a record. even though the declarant is available as a witness Public records and reports. factual findings resulting from an investigation made pursuant to authority granted by law. or c.
here reports not used to prove the government’s case. entered after a trial or upon a plea of guilty (but not upon a plea of nolo o 43 . As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement. 291-292 Miscellaneous Exceptions o Judgment of Previous convictions FRE 803(22) • The following are not excluded by the hearsay rule. it should be admissible along with other portions of the report. The prosectuion seeks to introduce routine Irish police records of serial numbers and weapons receipts. not routine bureaucratic observations of events that were not in themselves criminal acts. Rainey • There is great analytical difficulty in drawing a line between fact and opinion. o United States v. So remember: reports of law enforcement personnel may be admitted into evidence when the reports do not prove the government’s case in chief. Unlike Oates. evaluative Beech Aircraft v.Public records and reports divided into three categories Activities of the office Matters observed under duty observations made in the line of duty and official had a duty to report those observations (but not against criminal ∆ police observations) Investigative reportsagain.factual vs. SEE HYPOS ON PG. portions of investigatory reports otherwise admissible under 803(8)(c) are not inadmissible merely because they state a conclusion or opinion. Oates Law enforcement and government reports prepared in the regular course of business are not admissible against a defendant in criminal proceedings o Routine Police Reports US v. 280. can’t use police reports against criminal ∆s o Subsection C. Grady • Ds charged with federal weapons violations. even thought the declarant is available as a witness: o Judgment of previous convictions: Evidence of a final judgment . Therefore. showing that certain weapons were found in Ireland after certain date • These records were admissible under 803(8)(B) because the exclusionary language covers only police officers’ reports of their contemporaneous observations of crime.
Learned Treatises FRE 803(18) not excluded by hearsay even if declarant is available: • Learned treatises. to prove any fact essential to sustain the judgment. established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. statements contained in published treatises. Cook • Evidence at issue: prior evidence that found that • Judge says that under the federal rule. periodicals. this would not be admissible under 803(22) because only applies to Felonies. Requirements 44 .o o contendere). The pendency of an appeal may be shown but does not affect admissibility. or pamphlets on a subject of history. when offered by the Government in a criminal prosecution for purposes other than impeachment. But in 9th circuit would be admissible under the Public record. medicine. either under modern state-law approaches or the FRE. adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year. He further says that normally the FRE would apply but here we have The exception of prior judgments applies only to prior criminal convictions. or other science or art. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination. judgments against persons other than the accused. but not including. If admitted. it must not be a judgment against a third party Stroud v. • Or if used by the government in a criminal prosecution for any purpose other than impeachment. the statements may be read into evidence but may not be received as exhibits. Requirements • A person must have been convicted of a crime • That conviction must have been for a crime punishable as a felony • The fact that the judgment is now being offered to prove must have been one that the trier of fact in the previous case had to resolve in order for that judgment to be rendered. But 4th cir said not admissible. A prior judgment in a civil case is not covered.
medicine. either by expert testimony or by judicial notice The published work must have been relied on by an expert or called to the attention of an expert witness If admitted. Also. b. FRE 807 Residual Exceptions A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness. Requirements for Residual Exception It must not be covered by Rule 803 or 804 (depending on interpretation of court) It must be trustworthy It must be offered as evidence of a material fact It must be more probative on point for which it is offered than any other evidence which the proponent can procure through reasonable efforts The admission of the evidence must serve the interest of justice The opposing party must be provided with notice of the proponent’s intended use of the statement before trial Turbyfill v. International Car fire caused Π’s injuries and a mechanic wrote down his account of the accident. the statements form the published work may only be read into evidence. • This letter is not admission by party opponent • Not present sense impression. is not excluded by the hearsay rule. the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. statement would have been admitted as past recollection recorded if mechanic was alive. if the court determines that a. a statement may not be admitted under this exception unless the proponent of it makes known to the adverse arty sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. However.too long afterward 45 . or pamphlet on a subject of history. the statements is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. the proponent’s intention to offer the statement and the particulars of it. But mechanic later died.o o o The statements must come from a published treatise. Almost contemporaneous written accounts are recognized by FRE as having circumstantial guarantees of trustworthiness. the statement is offered as evidence of a material fact. or other science or art The published work must have been established as a reliable authority. and c. periodical. including the name and address of the declarant.
noting indicating reliability Remember: Such testimony can never be admitted under former testimony exception (804(b)(1)) b/c ∆ wasn’t present at grand jury. At trial. Both fed and state courts. Issue: Was the admission of statements of co-conspirators proper even though the declarants were available to testify? Holding: Yes Rationale: The unavailability rule is usually applied because live testimony is more accurate and reliable then out of court 46 . Test 2 prong • Prosecution demonstrate that declarant unavailable • Hearsay have adequate indicia of reliability and trustworthiness Here unavailable and since ∆’s attorney was able to question Anita at the hearing. Hoffman o Sixth o o o US v. motive to lie. Ohio v. Amendment. prosecution introduced statement made by D’s coconspirators which the police had legally recorded. These statements were admitted under FRE 801(d)(2)(E). Not party against interest because not admitting that fire not caused by some defect in truck.nothing indicating under influence of event Not biz record prepared in anticipation of litigation. D claimed that since the coconspirators were available to provide live testimony. and thus couldn’t cross-examine witness See good hypos on Pg. Roberts Prosecution wants to introduce into evidence statement of Anita from preliminary hearing. driver told a family member that his trousers caught on fire and he was trying to put out the fire when lost control.Confrontation Clause Applies only to criminal prosecutions. But should be admitted under residual because has guarantees of trustworthiness. Dent Grand jury testimony offered against a ∆ by a witness not unavailable may not automatically be admitted Nothing inherently reliable about this kind of testimony Here.• • o Not excited utterance. Inadi Facts: D was convicted for conspiring to manufacture and distribute methamphetamine. Company offers evidence that while at hospital. See Paler v. For the benefit of criminal ∆s only. 315 Truck driver killed in accident and family sues truck company. the use of statements was a violation of the confrontational clause. there is that adequate indicia of reliability US v. • Not admission because guy dead.
a hearsay statement. For clear explanation see Sup Ct. Admitted under spontaneous and medical diagnosis exceptions. must be shown to bear particularized guarantees of trustworthiness based on the circumstances which surround the making of the statement. US No independent inquiry into reliability is required when the evidence falls within a firmly rooted exception to the hearsay rule.o o o o o o o statements. requiring all coconspirators to testify in court will place a lot of burden on the system. Crofford v. But in the case of statements of co-conspirators. out of court statements made in furtherance of the conspiracy are really important and cannot be replicated in a live in-court testimony. or • The declaration falls within a firmly rooted hearsay exception. A co-conspirator’s admission is one such exception. admitted under the residual exception. 79 White v. Bourjaily v. Things held to be firmly rooted Statements made for medical Co-conspirator statements Dying declarations Biz records Public records Excited or spontaneous declarations Not firmly rooted Residual exceptions Accomplice confessions that inculpate a criminal ∆ Idaho v. Furthermore. whether or not the declarant is unavailable. Washington Evidence at issue: Wife’s statements to the police officer about what victim was doing 47 . the statements were properly admitted. Sum Pg. Illinois Child abused and shortly after told to babysitter and then to nurse and doctor. Therefore. and has been repeatedly affirmed by this court as such. SC held: The Confrontation Clause does not require proof of unavailability of a declarant before the declarant’s statements are admitted under the medical diagnosis and spontaneous exclamations exceptions to the hearsay rule. but we will accept less if: • The declarant is unavailable and the evidence has a high indicial of reliability. Wright In order to satisfy the reliability requirement of the Confrontation Clause. Basic Rule from Inadi and Bourjaily We prefer live testimony with an opportunity to crossexamine. Child not available because of trauma.
They are directed at a “handicapped” witness. if the statement falls within any hearsay exception. or infirm. This rule is subject to the provisions of Rule 703. the only reliability are confrontation.o Where testimonial statements are at issue. o Leading question: “Of course. very young. if the statement falls within a firmly rooted hearsay exception or bears “particularized guarantees of trustworthiness. TestimonialWitnesses who make a statement with the purpose of proving a fact.e. Impeachment FRE 602. extremely old. FRE 611(c). However. or • Where statements are not testimonial (possibly).A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Narrative question: “Can you tell us everything you did that day?” Non-narrative: “what did you do next?” Exception: Expert witnesses can answer in narrative form. relating to opinion testimony by expert witnesses. in civil actions and proceedings. but we will accept less if: • Where the statements are testimonial.Leading questions 48 . didn’t you?” o Acceptable form: “Did you cross the street?” Exceptions to the rule: o A lawyer can use leading questions on direct when: They concern preliminary matters on issues that are not in dispute (in order to speed up the testimony on non-essential points). i.” whether or not the declarant is unavailable. In direct examination. but need not. you crossed the street. avoiding a waste of time. or protecting a witness from harassment. consist of the witness’ own testimony. can’t ask narrative or leading questions. They are used to refresh a witness’s recollection. with respect to an element of a claim or defense as to which State law supplies the rule of decision. or • Where statements are not testimonial (possibly). the competency of a witness shall be determined in accordance with State law. Evidence to prove personal knowledge may. RULE FROM CRAWFORD We prefer live testimony with an opportunity to cross examine. or They are allowed by the trial judge within his/her discretion as a means of better ascertaining the truth.Every person is competent to be a witness except as otherwise provided in these rules. the declarant is unavailable and the ∆ has an opportunity to crossexamine or confront the witness. FRE 601. They are directed at a hostile or adverse witness.
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. FRE 611(b)- Scope of cross-examination o Cross-examination should be limited to 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. o Can cross witness beyond the scope of direct if the witness opens the door herself. o Attack the witness on: bias, motive, interest, untruthfulness, or any kind of prior inconsistency. FRE 607- The credibility of a witness may be attacked by any party, including the party calling the witness. Methods of Impeachment o You can impeach the witness with the use of a prior inconsistent statement, action, or omission. o You can prove that the witness lacked capacity to perceive correctly. o You can show that witness is biased. o You can impeach the witness with character evidence. o You can impeach the witness by contradiction. FRE 801(d)(1) o A statement is not hearsay if Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to penalty of perjury and a trial, hearing, or other proceeding, or in a deposition… US v. Hogan o Prosecution called Carpenter as a witness solely for presenting evidence to contradict his testimony. o Held: it was improper to call him to the witness stand for the sole purpose of introducing evidence that would otherwise be inadmissible under hearsay (it was made by police officers in investigation so hearsay and don’t fit under public records exception. Why not statement against interest? HE IS NOT UNAVAILABLE IN THIS CASE! What about grand juryno cross examination for hogans so also inadmissible) o Jury is going to listen to this evidence and despite the limiting instruction, jury is still going to use it improperly. o In this case, if prosecutor was totally surprised by the testimony of witness, then could have used the evidence to impeach. Methods of Impeachment o
Impeachment by Contradiction When you impeach by offering contradictory evidence by someone or something other than the witness State v. Oswalt • ∆ was charged with robber that took place in Seattle. ∆ presented the defense of alibi and claimed that he was in Portland on the day of the robbery. Prosecution, in order to impeach ∆’s witness based on contradiction, presented evidence of a police officer (extrinsic evidence) that about a month before the robbery, he talked to ∆ in Settle. • Holding: The extrinsic evidence showing where ∆ was a month before the robbery is collateral issue and is not important to the case. Therefore, the state could not use this to impeach the witness and since prejudicial error, conviction must be reversed. United States v. Copelin • ∆ during cross-examination said that only seen drugs on TV. Prosecutor then asks ∆ about his prior positive results for drug tests. ∆ argues that this evidence of prior bad acts should not have been used. • Held: A party may impeach the credibility of a witness based on a contradiction by introducing evidence of the party’s prior bad acts. Impeachment is covered under FRE 404(b). Furthermore, even if the evidence in this case was collateral, it was still admissible because it was not introduced through some extrinsic source (i.e. some other witness, or some other form of evidence) but through ∆’s own answers in crossexamination. But still reversed because trail judge didn’t give limiting instructions. So unlike Oswalt, allowed even though collateral matter because no extrinsic evidence used. SO the lesson, can contradict by extrinsic evidence only when relevant. But if not relevant and witness brings it in, can contradict him by questioning him. Character of the Witness Prior Bad Acts • FRE 608(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1. the evidence may refer only to character for truthfulness or untruthfulness, and 2. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
FRE 608(b)- Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.7 United States v. Owens o ∆ charged with killing his wife and ∆ on witness stand claimed that it was an accident. The prosecutor asked if ∆ had intentionally omitted his previous 3 crimes form his warrant officer application in order to challenge ∆’s truthfulness as a witness. o Held: A party may impeach a witness by eliciting on cross-examination an admission to a prior act of intentional falsehood. Rule 608(b) prohibits specific instances of conduct for purpose of impeaching the witness’s credibility from being proven by extrinsic evidence. United States v. Drake o This is the case where ∆ was cross-examined about him not receiving a degree that he asserted in direct examination that he did. o First of all, the matter was not irrelevant because ∆ himself brought up the issue in direct examination by testifying that he had a BA in psychology. o Even though the prosecutor referred to some record in the cross-examination, this did not result in introduction of extrinsic evidence. Therefore, although the prosecutor referred to extrinsic documents not in evidence, she did not rely on the documents to impeach ∆. ∆’s own testimony was sufficient to call his character into question. o But the court found that questions were improper because they assumed facts not in evidence. But was harmless error and affirmed conviction. United States v. Saada o ∆ introduced hearsay statement of declarant to show that ∆’s actions accidental. Declarant’s
BUT CANNOT BE DONE THROUGH EXTRINSIC EVIDENCE
the presiding judge must find that the probative value of the evidence is not 8 Note the difference in standard. Probative value of such evidence must exceed its prejudicial effect. regardless of the punishment. statement was admitted on excitement utterances to hearsay exception. the Rule requires that the presiding judge perform a balancing of probative value of the conviction against its prejudicial effect. evidence that a witness other than an accused has been convicted of a crime shall be admitted. if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. 52 . Sanders FRE 609(a)(1) does not allow admission of prior convictions for impeaching a witness’ credibility. Prior Convictions • FRE 609 o A. But where the witness in question is anyone other than the accused. and 2. For the purpose of attacking the credibility of a witness. o United States v. subject to Rule 403. when the probative value of the evidence does not outweigh its prejudice. The declarant had died before the trial began. General Rule. 1. Where the witness in question is the accused. The prosecution introduced extrinsic evidence of previous misconduct by the declarant to attack declarant’s credibility. 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 accused8. evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement. o So issue is whether can admit extrinsic evidence when declarant is unavailable for crossexamination. o Holding: 806 doesn’t modify 608(b) so even when declarant is unavailable you can’t admit extrinsic evidence to attack his credibility.
SO can look at the statute or the actual conduct of the criminal.o substantially outweighed by the evidence. Only applies to those crimes that factually or by some other element involve misrepresentation or dishonesty. o United States v. or false pretense. A court does not have discretion to exclude as unduly prejudicial evidence that a witness had previously been convicted of a crime involving dishonesty or false statement.Betty in the last 5 years convicted of petty larceny at a store for shoplifting. however. Psychiatric Condition US v. criminal fraud. 53 . Lindstrom • ∆s charged with mail fraud and prosecution’s key witness. among others. Holding: Balancing test not required under FRE 609(a)(2). Prosecution introduced into evidence ∆’s two previous convictions involving mail fraud and Medicare. United States o A ∆ must testify at his trial in order to be entitled to raise and preserve for review the claim of improper impeachment with a prior conviction. o United States v. ∆ claims that court should have conducted the balancing test before admitting this evidence. Wanted to question her and introduce records of her hospitalization. testified. embezzlement. o Crimes of dishonesty involve perjury. But where the prior conviction involves a crime of dishonesty. she said that she bought them at another store. Here we looked at the facts. no balancing is required regardless of the identity of the witness and the length of the sentence. Brackeen Bank robbery does not per se qualify as a crime of dishonesty under FRE 609(a)(2). • Luce v. ∆s claimed that witness had something against them and it was due to her mental illness. • Hypo. Wong ∆ was charged with mail fraud and racketeering activities. Would be admissible because dishonesty involved. ∆’s employee. When caught with the items. false statement.
or the interests of justice otherwise require. Prior Statements to Impeach or Rehabilitate General rule is that when a witness testifies at trial. • B. Extrinsic evidence of prior inconsistent statement of witness. Abel • Prosecution was entitled to show that a defense witness and D were both members of a secret prison organization which had a creed requiring members to lie to protect each other. US . a party must relate the statements to the witness with the circumstances surrounding the making of the statements. but on request the same shall be shown or disclosed to opposing counsel.o o Holding: Evidence of a witness’ psychiatric condition can be admitted in order to impeach the credibility of the witness. even without proof that the witness or party has personally adopted its tenets. Bias may be shown by the fact that a witness belongs to a particular organization and subscribes to its beliefs. In examining a witness concerning a prior statement made by the witness. A witness’ and a party’s common membership in an organization. examining witnesses concerning prior statement. whether written or not. But Federal rule does not require a party introducing the prior inconsistent statement to relate the statement and the circumstances surrounding them to the witness Impeachment for Bias A witness is biased whenever his emotions or feelings towards the parties or towards some aspect of the case make the witness desire one outcome rather than another. the statement need not be shown nor its contents disclosed to the witness at that time. The provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. evidence of his prior inconsistent statement is admissible to impeach his credibility FRE 613 Prior Statements of Witnesses • A. is certainly probative of bias. Harsch • To impeach a witness based on statements inconsistent with those uttered at the trial. • 54 . Coles v.
Atty – Client Privilege – Rule 503 a. Client has a privilege to refuse to disclose and prevent others from disclosing confidential communications. control group test: certain group of pple that are involved in the decision making fxn. Objects and preexisting docs are not protected. o • Rehabilitating the impeached witness The federal rules agree that if the use of a prior inconsistent statement amounts to a charge of recent fabrication or toehr wrongdoing by the witness. the client owns the privilege. In other words.where a witness testifies at trial and is available for crossexamination. Who can claim the privilege? i. If says no. atty. b. ii. in such circumstances. This exception can be used any time other side accuses the witness of making contradictory statements or of just coming up with false story. the prior consistent statement is not hearsay. says control group test too vague. i. a prior consistent statement may be used to rehabilitate the witness. if says yes. CONFIDENTIALITY AND CONFIDENTIAL COMMUNICATIONS I. b. But remember. Rule: communications btw an atty and client made during professional consultation are privileged from disclosure. but atty can assert on client’s behalf. FRE 801(d)(1)(b). Upjohn case (899): privilege does not only extend to the control group and adopts more of the subj matter test. end of matter. a. only then can introduce extrinsic evidence. (923) c. subject matter test: anyone involved in the subj matter or issue is covered including any old employee. i. Sup Ct rejects this test bc can’t tell who is in the group and can’t plan ahead on reliance of who has privilege. client.• Foundation be laid so in Abel: ask W whether belong to group. his prior statement is admissible if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. various reps of the atty on behalf of the client. 55 . such statements must have been made before the witness had a motive to falsify! Tome case where daughter testified against father for sex abuse. negligent disclosure by atty sometimes waives the privilege even though client is the holder of the privilege. Corporate Clients: 1.
Accountant employed by tax law firm treated as an interpreter and falls under the privilege bc his role was to aid attys with their work. considerations: 1. Kovel (888) – involving or disclosing to communicative intermediaries. e.i. 503(b)(2) cover the ancillary conversations that isn’t btw lawyer and client. Test: a. can claim work product privilege agst the IRS → YES i. i. goal of communication was to get legal advice for the corp 2. everyone behaved accrdg to that idea of confidentiality. Confidential Communications (503a4) . can be overcome by a showing that can’t get the info any other way without undue hardship. a. Lawyer: a person authorized or rsnbly believed by the client to be authorized to practice law in any state or nation. you can’t make evid privileged by giving it to an attorney iii. did the client say things in confidence b.meaning if the stmts made to the atty were not re the matter the client is seeking legal advice/service for. i. pple that work for the atty. atty-expert privilege: ancillary rule protects and the work product privilege will also protect b. everybody understood that communication was meant to be confidential 4. Involves inadvertent discloser bc inadequately 56 . after the relationship of atty-client has been estb (anything before is not covered) 2. c. 503(a)(3): Representatives of the lawyer is one who assists the lawyer in the rendition of professional legal services. d. Suburban Sweep Case: P went thru D’s trash for 2 yrs. communications are privileged as long as they were not “intended” to be communicated to outside parties iv.503 only protects those communications “made for the purpose of facilitating the rendition of professional legal services to the client” . then stmts will not be privileged. 1. US v. communication had something to do with the job of the person who is making the communication 3. Prelim Q for the judge: judge must hear what it is (in camera hearing) ii. in order to get legal services from atty c. NOTE: stmts by client to expert not protected f.
Legal Services: you either received “legal services” or consulted a lawyer with legal services in mind (legal advice). atty withdraws and makes client promise not to perjure. 2. so client can “prevent any other person from disclosing confidential communications. ct says no harm by allowing this in and denying privilege. will it discourage clients from talking to attys in the future by allowing the evid in? (NO) b. i.878. Exceptions 503(d): (matters that are not privileged under this rule) i. 3. Future Crimes Exception to furtherance of crime or fraud: if the services of the atty were sought or obtained to enable or aid anyone to commit or plan to commit a crime. here. p897) – 503(b) protects info that is “intended” to be confidential. h. Note 2: list of things not considered professional legal services 1. involuntary disclosure in spite of all possible precautions → privileged a. throwing in trash means that they probably intended the documents to be privileged. content of the return isn’t covered. Note 3: talks abt tax returns → if all you are doing is preparing the return → then probably not privileged.” g. v. 1. considering the answers to these 2 Qs. Eavesdroppers (Note 4. i. expectations of privacy is also a consideration. Phelps (916) a. nothing suggests that client intends atty’s observations of such matters to be confidential. i. financial or personal advice not privileged bc not legal service ii. D still does and is 57 . physical conditions of client observed by atty not privileged → such matters are observable by anyone.safeguarded by putting in trash → not privileged (dumpsterdivers) – must look to see what measures were taken to safeguard. 1. soliciting business. considerations the ct made: a. State v. Communicative Gestures are privileged: observation is usually not covered UNLESS the observation relates directly to the matter the client is seeking legal services for. but didn’t take sufficient measures. p. could they have protected their materials better? (YES) c. facts: hires atty for drunk driving charge and tells atty that he will commit perjury during trial.
(e. disclosure of confidential communications exception: disclosure would be tantamount to revealing confidential communication. iv. their stmts to that earlier common atty are not privileged re each other. exceptions to this disclosure requirement: a. 2. v. viii. legal advice exception: ??? b.503(d)(5): when clients are jointly represented by one atty. vii. 58 . but what was said is still protected. disclosure of the id of your client (not included in the rejected rules) 1. 503d1: client has to know that what he is planning is a crime (know or rsnbly should have known) claimants through some deceased client when client suing for malpractice or suing for breach of duty of lawyer or client document attested by lawyer: communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness Joint Clients. acquitted.g. any written material used during this time is discoverable. when clients are represented by different attys in a matter of “common interest” → stmts to each other’s atty are privileged. person retained atty and used stolen checks to pay for legal fees. any privilege is waived during this process. 1. Old atty is subpoenaed to testify agst D that D told him he intended to perjure. and they have a falling out and subsequently sue each other. later discovered perjury and is indicted for that. then don’t have to reveal client’s name. but ct says that atty didn’t apply it properly. 2. connected client to the stolen checks matter. iii.ii. vi. ID is an issue) c. Ct says the crime at issue was the perjury which was a future crime at the time that D made the communication → when you try to engage a lawyer with goal of getting away with a crime → no privilege. a. last link in a chain of incriminating evid exception: if saying your client’s name would result in your client being implicated in the matter. Durant – recognized the last link exception to disclosure of identity. the very reason they came to see you. When refreshing recollection of witness under FRE 612. b. Meredith (881): makes an exception for cases in which atty moves or alters the condition of the evid so that atty must tell where he found it.
that was taken from its orig location. atty has 2 options: i. a. Pros was allowed to tell the jury that the wallet came from Scott’s yard. P wants the notes to police dept licensed counselor who interviewed the officer. d. photo lab included in CA state – must report child porn e. no privilege in child abuse cases where child involved is under 16 i. made in connection with diagnosis or treatment c. ii. Psychotherapist – Patient Privilege – Rule 504 a.II. can pick it up. therapists can incur tort liability (Tarassoff case) – warning necessary in certain situations. a confidential communication: ii. Jaffee case (925)– recognizes this type of privilege even if it did not exist in CL. can’t keep evid for an indeterminate amt of time j. Judge instructs that refusal to turn over notes is no way an admission of wrongdoing. atty can look at the evid as long as don’t move it. Sup Ct: says the permissive inference was wrong bc there is such a privilege and it is not a qualified privilege. b. After Meredith. mandated reporters: any medical personnel licensed by the state must report child abuse if they know about it (but attys are licensed but are exempt from reporting) 1. recent cases with better forensic evid → if you make contact you are interfering with trace evid so you may now be required to testify as to where you found it. made to a psychotherapist or doctor (or person rsnbly necessary for the transmission of the communication including family member) iii. no future crimes exception i. ii. there is no privilege in other words and can presume that if the notes had been turned over. Officer and what P believes happened conflict. 2nd choice is for atty to take the evid directly to the police or lab without revealing where you got it from 1. Jaffee extends protection to session with licensed clinical social workers. 1. i. General Rule: patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communication made for the purposes of diagnosis or treatment. 1. they would be unfavorable to the officer. restraint on attys is disbarment. Requirements: i. Facts: atty and atty’s investigator examined wallet 59 .
their relationship is almost certainly in disrepair.adverse testimony privilege applies only if parties married at the time of trial. D’s wife. End of marriage. The Marital Privileges o Rationale: promote marital harmony o Two Privileges Privilege against adverse spousal testimony • Gives a spouse complete protection from adverse testimony by the other spouse regardless of the subject matter of the testimony. If third persons present at the time of the communication will show that it was not intended to be confidential. o In federal courts. 60 . adverse testimony privilege will apply. there is probably little in the way of marital harmony for the privilege to protect. o Trammel v. o Federal court recognize both privileges. Privilege also applies in federal grand jury proceedings. rejects the idea of qualified privileged which can be overcome – bc otherwise no way for pple to plan ahead not knowing if their communication will be protected. o Confidentiality Only confidential communications are protected. she was not prosecuted. United States W. was caught smuggling drugs and in made a deal with prosecution where for testifying against D. Want to encourage absolute freedom to spk to mental health professionals. Confidential privilege applies so long as the parties were married at the time the communication was made even if marriage ended at the time of trial. Pre-marital communication. adverse testimony privilege is limited to criminal cases. The confidential communications privilege is generally held to belong to the spouse who makes the communication. The adverse testimony privilege belongs only to the testifying spouse. Supreme Court held hat adverse testimony privilege didn’t apply here. The confidential communication privilege also didn’t help D much because W was testifying about their actions and not the confidential communications that took place between them. If one spouse is willing to testify against the other.1.if communication before marriage. 2. confidential communication privilege doesn’t apply but if married at time of trial. The privilege protecting confidential communications • Only protects confidential communications made by one spouse to the other during the marriage. want to encourage the idea that there is absolute freedom to speak to mental health professionals.
If choose not to testify at trial. Privilege of witness o Applies to any person who is asked to given testimony in a proceeding. If the person waives the privilege at one stage doesn’t mean person has waived it entirely. Only gives witness the right to not answer a question if 61 . • NEED TO READ 671-684 Fifth Amendment Privilege o 5th Violated Compulsion Testimonial evidence Self-incrimination o Idea is that you don’t want people to lie to protect themselves. o Parent-Child Privilege In re Grand Jury • Parent-child privilege is not recognized under FRE 501. INFO HAS TO BE RELEVANT! • Why would ∆ here want to info revealed in trial? One possible explanation is that he probably wanted to prove that the sources of the info were unreliable. judge will instruct the jury that they shouldn’t make any negative inferences from it. If the person chooses to testify. if yesTestimonial). material information obtained from confidential sources. Any context where can be forced to appear as a witness. At that point the person has a right not to be a witness. Such privilege doesn’t serve public purpose and is disproportionately burdensome on the society. o SC has interpreted this privilege in 2 Privilege of the accused Privilege of every witness o Privilege of the accused arise when the police take a person in custody or deprive his freedom in any significant way and accuse that person of committing a crime. Matter of Farber • A newspaper is not privileged to withhold relevant. Has to be testimonial so would exclude variety of acts (test is whether the person can lie about it. Person can waive the privilege. then cannot refuse to answer if within the scope of the direct examination. o The News-Persons’ Privilege Rationality reporters have argued that they must be able to promise confidentiality to their sources. Parties must be married at the time of the communication Miscellaneous Privileges o Priest-penitent privilege Most states recognize privilege for confidential communications between a clergyman and penitent. then if someone asks question on crossexamination. The shield law in this case violated the 6th Amendment rights of ∆.
Cotto Π asked the doctor (witness) to explain the results of the Xrays but original X-ray plates were not produced. Here the disc would be considered a duplicate under 1001(4). Here doctor’s report on the X-rays was secondary evidence and Π’s failure to provide explanation as to the failure to provide the original plates renders the secondary evidence inadmissible. WRITINGS The Best Evidence Rule In proving the terms of a writing.the true answer can incriminate him/her to a crime for which the person can still be punished. unless it is shown to be unavailable for some reason other than the serious fault of the proponent. where such terms are material. can’t invoke the privilege and also if statute of limitations passed. Doctor trying to prove that the content of the X-rays and didn’t provide any excuse for not producing the originals. Under the best evidence rule. the party may introduce secondary documents and must explain the failure to produce the original copy. can’t invoke. o Sirico v. Π offered testimony of another partner as to the amount of partnership’s earnings. 688 Case Note Incriminating statements recorded. a party who seeks to prove the contents of a document must enter into evidence the original copy of that document and if the original copy is unavailable. o Hearsay reviewcould the conversations between two prisoners fit in any hearsay exception? Admission of a party opponent. Would the photograph print be admissible? Can argue that unless can contest the authenticity of the original or make some other fairness argument would be admissible. Swift & Co. No book records were offered. This disk admitted over the objection of the ∆. But other side can argue that viewing photograph is not the same as viewing the original X-ray. Police had policy of transferring recording to the disk. In order to prove the earnings of the deceased husband who was a partner in a business. o Herzig v. So if given immunity. The trial judge excluded the evidence because violated best evidence rule. The appellate court said that the disk was not the best evidence and should have been excluded. Would the same results be reached under FRE: Yes. o 62 . the original writing must be produced. SEE RULE 1003 o Pg. Suppose offered photograph of the X-ray instead of the original.
If hearsay objection o People v. In this case. the photographs may not be used under the best evidence rule. Also fingerprint card to show arrest. Would the result be the same under FRE? Yes1001(2)includes motion pictures. The best evidence rule does not require introduction of a writing when the content of the writing are not being proven. This issue in question was the earnings of the partnership which were for the sake of convenience recorded into books and transformed into writing. Presented writing expert and fingerprint expert. But the prosecution failed and as such. Enskat Police officers took pictures of an obscene film. These pictures were presented at the trial but not the film. It must be shown to be genuine.Holding: reversed. No seal or certified. The best evidence rule is limited to cases where the contents of the writing are to be proved. A motion picture constitutes a writing under the best evidence rule. Authentication o All real and demonstrative evidence must be authenticated before it is admitted. 63 . the contents of the partnership’s accounting books were not being proven. o United State v. the contents of the film are at issue and the pictures were secondary evidence. The prosecution had the burden of proving that the original film was in the control or possession of ∆ and that it made a request that the originals be produced at trial. the issue was what ∆ had said. Judgment of a robber conviction under different name. In this case. o Question to ask: Whether necessary to go through writing to reach your conclusion. Dockins Dockins was convicted for illegal (he was felon) possession of firearm. not what the transcript contained. United States In this case for subornation perjury. Trial court admitted the documents. o Meyers v. Here there was no attempt to prove the contents of the writing. Police officers testified that documents were exact copies. o Rule 901. the counsel who examined the ∆ testified as to what ∆ said under oath and the transcript was presented after the testimony. Requirement of Authentication or Identification General Provision • The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
o LOOK AT KEGAN V. First hand knowledge If the witness testifies about a fact that could have been perceived by the senses. Π claimed by an injury EXPERT WITNESSES First-hand knowledge and lay opinions o Two other rules arising from the preference form the best available evidence are the rule requiring that a witness have first-hand knowledge of the facts about which he testifies and the rule purporting to forbid ordinary witnesses form expressing their opinions. • E.Court holds that abuse of discretion. Personal knowledge objection • If the witness’ statement on its fact makes it clear that the witness is merely repeating what someone else said. then hearsay objection. Maryland Casualty Co. the objection is to hearsay. then the proper objection is not based on personal knowledge. Rule 902(7) make such label self-authenticating. No evidence to conclude that actual records from the Denver police department. Hearsay vs. the witness must have perceived it himself. Were not certified and no sealed. the objection is to lack of firsthand knowledge. This rule is subject to the provisions of Rule 703. Lay Opinions FRE 701 Opinion Testimony by Law Witnesses o o 64 . Evidence to prove personal knowledge may. The custodian of the police record didn’t testify. o First State Bank v. but need not. relating to opinion testimony by expert witnesses. not learned of it from someone else. • Now if W testifies that P told me that the car was Volvo. GREEN GIANT ON PAGE 697 Under the federal rules the result will be different. FRE 602 • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Documents were not self-authentication. W testifies that “car that hit was a Volvo” and from other testimony that W wasn’t there. but he is actually repeating statements by others. consist of the witness’ own testimony.g. This objection even if clear that P told W. • If the witness purports to be stating matters which he personally observed.
∆ presented testimony of a W who witnessed the fight and a police officer who both stated that in their opinion the gun went off accidentally. Prosecution asked W what he thought the wink meant and W said that ∆ probably wanted him to lie to the police. Here the testimony of W should have been allowed because he had first-hand knowledge because he personally observed the struggle. and (c) not based on scientific technical. technical. or other specialized knowledge within the scope of Rule 702. the witness’ testimony is the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. intoxication. or other specialized knowledge within the scope of Rule 702. another party’s emotions. then it would be accepted. If the witness is not testifying as an expert. Holden • ∆ charged with murder and claims that he was at W’s house. the witness must have personal knowledge of the facts about which he is testifying. This is much more flexible than the common law standard but remember that lay witness must still have personal knowledge of the facts to which he/she is testifying so that the hearsay rule would not be violated. ∆ claims that gun went off accidentally. and was helpful to an understanding of the witness’ testimony. But: • Opinion has to be rationally based on the perception of the witness • Helpful to a clear understanding of the witness’ testimony or determination of a fact in issue and • not based on scientific. if the court believes that the opinion W regarding the meaning of ∆’s wink was rationally based on his perceptions. Allowing the W to relate what he and seen and his opinion as to why the shooting • 65 . W was questioned by police and W testified while he was being questioned. Government of Virgin Islands v. among many other matters. So lay witness can testify to matters such as vehicular speed. • Under FRE 701. Commonwealth v. • Dissent: a statement of interpretation of a ∆’s action may be not be admitted as proper opinion testimony. • Holding: In order for lay opinion testimony to be admissible. ∆ winked at him. Knight • ∆ was beating V and shot him.
experience. Expert Opinions o FRE 702 Testimony by Experts If scientific. he testified that he was of the opinion that ∆ had possessed the drugs with the intent to distribute. training. Holding: an expert witness may testify about areas of specialized knowledge even if that opinion or testimony embraces an ultimate issue to be determined by the jury. skill. and (3) the witness has applied the principles and methods reliably to the facts of the case. or education. on the other had was property excluded because he didn’t have first-hand knowledge. experience. if (1) the testimony is based on sufficient facts or date. detective was considered to be an expert. or education (no formal edu required) The testimony must be based on sufficient facts or data The testimony must be product of reliable principles and methods and The witness must have applied these principles and methods reliably to the facts of the case. expert will not be allowed to show eyewitness reliability because lay people can do that) The witness must be qualified as an expert by knowledge. technical. The opinion of expert may be presented to a jury if it will 66 . Odom ∆ was charged with possession of drugs with intent to distribute. FRE 704(a) provides that except as provided in subdivision B dealing with mental state of criminal ∆s. Prosecution introduced testimony of Detective as expert and since participated in 8000 investigations and had extensive drug knowledge.was accidental and unintended would have allowed W to relate his story with more clarity and would have aided the jury in understanding the W’s testimony. testimony in the form of an opinion or inference otherwise admissible is not objectionably because it embraces an ultimate issue to be decided by the trier of fact. The police officer’s testimony. a witness qualified as an expert by knowledge. After detective given the facts surrounding the arrest of ∆.g. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. skill. technical. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. may testify thereto in the form of an opinion or otherwise. o State v. o Rule 702 imposes 5 requirements that expert testimony must meet in order to be admissible It must be the case that scientific. (e. training. (2) the testimony is the product of reliable principles and methods.
‘material participants’ and referred to their actions as ‘manipulation’ and ‘fraud’. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. FRE 705 Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons thereof without first testifying to the underlying facts or data. the facts or date need not be admissible in evidence in order for the opinion or inference to be admitted. an expert’s testimony that expresses a direct opinion that the ∆ is guilty of the crime is improper. United States v.o o o o genuinely assist the jury in comprehending the evidence and determining the issues of fact. testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. No expert witness with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Furthermore. witness repeatedly described ∆s as ‘active participants’. This is a matter of specialized knowledge of experts. However. Here it is not reasonable to expect average persons to make decision whether drugs for personal or sale purpose. Scop Expert witness testified against ∆ and during crossexamination admitted that his opinion based on testimony and documentary evidence produced at trial. 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. unless the court requires otherwise. FRE 704 Opinion on Ultimate Issue Except as provided in subdivision (b). Such ultimate issues are matters for the trier of fact alone. The expert may in any event be required to disclose the underlying facts or data on cross-examination. FRE 703 Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. His use of the words came right out of the relevant statutes and were not words that are commonly 67 . Holding: Rule 704 does not allow an expert witness to express his opinion in statements which embody legal conclusions.
189! Ingram v. all can say is that they are assuming that what the witness said is true o Expert cannot testify as to legal conclusion o 9 e. Also the court rightly excluded the list because agent testified that didn’t rely on the list and also the list only listed US prices. 68 .. Even if list relevant. or aided and abetted the possession of heroin with intent to sell. The credibility of witness is an issue to be decided solely by the jury. Rule 703 allows an expert witness to rely on technically inadmissible evidence as a basis for their opinions. Brown FRE 703 allows experts to rely upon data which itself would not have been admissible. can exclude under FRE 403 because can give the jury the wrong impression. heroin. if this data is of a type reasonably relied upon by experts in the particular field in forming opinions. does not allow witnesses to assess the credibility of testimony given in the same trial or offer opinions based on such assessments. to with. i. United States v.e. in conjunction with the information he received from a DEA intelligence agent and Bermudan authorities. This rule encompasses hearsay statements in a context where the government expert specifically testified that his opinion was based on his experience and expertise. But this is a CA case and FRE 703 doesn’t go this far. This rule. Expert cannot judge to the truth of witness testimony. and that such sources of information were regularly relied upon in evaluating narcotics. People v.g.9 Secondly. Telling the jury that a ∆ acted as a steered or participated in a narcotics transaction differs from opining that the ∆ possessed narcotics. however. with the intent to sell. an expert witness may not offer opinions on relevant events based on their personal assessment of the credibility of another witness’ testimony.o o o o used. a hypothetical must include only facts which are already in the record or those which the jury may logically infer therefrom and not rely on the opinion testimony of other witnesses. SEE HC Pg. Rule 705 does not require an expert witness to reveal the source of his opinion. Expert testimony Information based on expert’s personal knowledge Facts learned at trial. McCuiston In order to be competent. Gardeley The gang beating case where the expert was allowed to testify to the inadmissible hearsay statements that he based his opinion on because used by experts in the field. if expert listens to other testimony or if the attorney asks the expert to assume hypothetical at trial Reports from third parties.
i. o REMEMBER. THE STANDARD OF REVIEW IS ABUSE OF DISCRETION o Kumho v. and if so. Furthermore. Merrell Dow Scientific evidence must be • Shown to be scientifically valid. o United States v. SC held that principles of Daubert apply to all expert testimony. Scientific and Demonstrative Evidence o Frye Standard Only scientific evidence that was generally accepted could be admitted. o SC gave some factors that courts might consider (not required to use) Can the expert’s theory or technique be tested. are there standards for controlling the technique’s operation? If so. up to the trial judge to determine whether a particular factor is or isn’t sensible to consider in a particular context.e. Carmichael Tire expert case. Trial judge also gets procedural flexibility because abuse of discretion now standard for appeals. Remember: Trial court as the gatekeeper should focus on the procedure not the results of the scientific or other experiment. be relevant to the task at hand.state. whether based on scientific principles or not. o Daubert v. were these used in developing the expert’s testimony? Has the expert’s theory or technique achieved general acceptance with a relevant community? o These factors are not exclusive. Saelee o o An expert cannot give ultimate questions with regard to ∆’s mental 69 . what is its known or potential rate of error.. and • The evidence must fit at least one issue in the case. Other factors that may be relevant include things such as whether the experts opinions proposing to testify about matters that stemmed directly from their research independent of litigation or whether opinions specifically from litigation. Question here is whether the question was designed to get testimony about ∆’s mental state? o An expert can testify as to whether a fact similar to those in evidence are consistent with the conduct of a hypothetical person who is suffering from some condition. has it been tested? Has the expert’s theory or technique been published in journals subject to peer review? With respect to a particular technique.
In this case. polygraph evidence should be excluded because too uncertain. Scheffer A per se exclusion of all polygraph evidence from trial is constitutional and does not abridge and accused’s right to present a defense. US v. 2. test can only be used as circumstantial evidence. State v. State v.g. Piccinonna The results of polygraph tests may not be held inadmissible based on a per se exclusionary rule. Officer cannot testify as to terms used in test and can’t use pass fail terms. Neutral questions: Name age Relevant question: did you strike x on this day? Control question: did you ever want to hurt someone in the past Liars will respond more to relevant than control questions whereas honest people will respond more to control than relevant questions. argued that the writing expert was only going to testify as to the similarities and differences between the two writings and he wasn’t going to testify to the ultimate fact as to whether two writings belong to the same person. smelled alcohol. E. Also the gov. Gaze testbecause other causes of gaze. the gov. In jrx where allowed. United States v. Also evades the function of the jury. probative value doesn’t outweigh the prejudice. As a general matter. can use to impeach or corroborate the testimony of a witness if proper notice is given and doesn’t go against the rules of evidence. 70 . Chappel Case involve photo lineup identification of ∆. failed to meet the Daubert standards.parties have to agree who examiner is. Hasn’t been subject to peer review. what questions. But can give lay witness opinions e. Porter Ct. can ask under 608ab with regards to prior bad acts of witness and confront them that they lied and deceived a polygraph examiner.o o o o o o Rule 701 prohibits testimony of experts in the clothes of lay witnesses. 2 ways admitted: 1. Held: Expert testimony regarding eyewitness identification is admissible if the trial court finds that he expert is qualified. upheld a per-se ban on the use of polygraph tests because don’t pass the Daubert test and even if though. stipulation before the actual test is given. looked drunk. ∆ introduced testimony of expert regarding the photographic and in-court identification. Horn Case Sobriety tests. all the things that can affect the results of result. But court still ruled that expert witness because will be using his specialized knowledge. nature of questions.g.
the subject of the testimony is proper. expert’s explanatory theory conforms to the generally accepted theory. 71 . and the probative value of the testimony outweighs it prejudicial effect. But the court noted that this opinion does not change the general rule against the admissibility of expert testimony on eyewitness identification. Expert testimony on a subject is proper if the jury is not qualified without expert testimony to determine intelligently and to the best possible degree the particular issue without enlightenment form an expert on the subject.
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