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Downloaded From Introduction I. I NTRODUCTION a. Prior to FRE, rules were made in common law. b. Purpose of FRE i.

Regulate admission of proof at trial 1. alternative would be to leave it wide open as to what is allowed to be let in as evidence ii. Why do we need to regulate the admission of proof? 1. Controls scope/duration of trials (otherwise theyd be too long). 2. Ensures accurate fact-finding a. Mistrust of juries. b. Jury may not be able to adequately evaluate the evidence (i.e. prior convictions influencing their judgment) c. Ex: hearsay: Susan told me car was red. d. Ex: only use prior conviction to impeach the witness is certain circumstances. i. Df is armed robber. Df wants to testify but has a prior conviction for armed robbery 3 years ago. ii. Jury could overvalue the prior conviction, give too much weight. 3. Serves substantive polices related to matter being litigated a. Ex) BOP, spousal privileges, encouraging post-accident repairs, etc. b. Class: Tenant falls down stairs. Landlord fixes day after, this makes him look guilty. This would discourage post accident repairs. iii. Gives discretion to judge


Downloaded From How Evidence is Admitted/Excluded

I. T HE O BJECTION K EEPING E VIDENCE O UT a. Why do courts require an objection? i. Desire to provide parties w/a fair opportunity to make their case, but not an endless one. 1. Helps put a reasonable limit on what a party can complain about on appeal a. Helps to avoid multiple litigation processes 2. Otherwise, there would always be grounds for a later appeal. ii. Helps judge 1. Brings problems to their attention 2. Helps them to evaluate whether the evidence should be admitted. iii. Cures problems on the spot. 1. Other party can cure the problem, argue their point, or rephrase the question, or get alternative proof. b. Requirements i. Objection must be timely . 1. Must object before the answer is given. 2. If youre slow, and you dont get it in, the judge will just strike the information. a. If you fail to object to evidence during a trial, you cannot argue for exclusion on appeal unless it is plain error i. Generally failure to object is a waiver of the issue of admissibility b. Plain Error i. Error that is so obvious that is so obvious and serious that the judge should not have missed it, even if you did not bring the challenge yourself ii. This is NOT a safe harbor- this is a very serious lawyering mistake that is essentially admitting malpractice to an appellate court ii. Must include a statement of the correct underlying reason ( ground ) for exclusion. 1. Substantiverests on exclusionary principles outlined in FRE a. Hearsay b. Best Evidence c. Attorney-client Privilege d. Martial Confidence Privilege 2. Formalfocus on manner of questioning a. Asked and Answered b. Assumes facts not in evidence c. Argumentative d. Compound e. Leading the witness f. Misleading g. Speculation or conjecture h. Ambiguous, uncertain or unintelligible i. Nonresponsive to the question 3. General a. General not good enough must give a reason i. Cannot argue on appeal because there are no specific grounds to argue from that you never brought on original objection 1. so no preservation for appeal -2-

Downloaded From 4. Atty states wrong grounds , states hearsay, when it is actually Leading the witness. a. Cant appeal b/c you failed to meet the 2nd requirement (stating the correct ground for exclusion), you waived unless it is plain error. II. T HE M OTION IN L IMINE ( SAY : LIM - A - NAY )K EEPING E VIDENCE O UT a. Definition: motion made in advance of trial, before trial, about admission/exclusion of evidence. Jury doesnt hear. b. Purpose: i. Helps judge consider tricky issues prior to trial rather than on-the-fly ii. If you know in advance that this is going to be excluded, you might want to fill-in other evidence as a result (affects your trial strategy.) iii. Keeps the evidence, and argument over it, away from jury iv. In criminal case, must decide whether put Df on stand. Only use prior convictions to impeach Df. If put on stand, priors will come in. So atty will ask in advance if evidence admissible. c. Advisory opinions? d. If object to evidence on a motion in limine, and you lose, do you have to renew your objection at trial? i. Generally no, as long as ruling was definitive. Dont have to restate objection during trial. ii. You wouldnt want to renew, b/c this makes it look like youre hiding something from the jury. iii. NOTE: you must renew your objection if the ruling was tentative or conditional, or if circumstances have meaningfully changed. FRE 103. III. T HE O FFER OF P ROOF (P ROFFER ) a. You use the proffer when you want to get the evidence in and its been objected to. i. Argue for the admissibility on the record. b. A lawyer faced w/a ruling excluding evidence must make a formal offer of proof if he wants to preserve the point for later appellate review. c. Requirements: i. Demonstrate to the court what the evidence would be AND ii. State the proper ground for admission. iii. If you fail to give a ground or you give the wrong ground, youve waived your appeal unless its plain error. (cts strict on this) d. Trial judge sustains on wrong ground: i. ex: objects b/c hearsay. Judge agrees and excludes the proof b/c its hearsay. On appeal, it was not hearsay. ii. Rule: If there is any other reason, that even the appellate court could find w/o being offered or suggested, why excluded, judges ruling was affirmed. Even though not hearsay, it violated best evidence rule this is okay. iii. This is b/c if retried it would have same result. iv. So on appeal, argue ANY ground judge agreed with. But if argue against, must argue the specific ground you raised. e. Purpose i. Helps to refine objections ii. Assists the trial judge. iii. Helps preserve the record for appeal. Consequences of Evidential Error I. A PPRAISING E RROR a. What much you establish on appeal to gain a reversal? i. A proper objection or proffer was made ii. The judges ruling was wrong AND -3-

Downloaded From iii. Error affected a substantial right of the party (i.e. error probably affected the outcome.) 1. not harmless error- judge will not overturn for harmless error b. Types of Error i. Reversibleaffected judgment ii. Harmlessdidnt affect judgment; judgment may be affirmed. iii. Plain Error 1. Evidence is so obvious and serious that the judge should have not missed it. 2. Wants relief on appeal; appellant failed to preserve its rights; miscarriage of justice 3. Error is so obvious and serious that judge shouldnt have missed it. 4. Not a good position to be in. Dont rely on this. You look stupid b/c your failed to see it at the trial. iv. Constitutionalmistake in admitting evidence; shouldve been excluded under Constitution. c. Turning Reversible into Harmless error i. Cumulative Evidencelots of proof entered on point, same decision would be reached ii. Curative Instructioninstruction to jury cures error iii. Overwhelming Evidenceevidence admitted supports judgment below overwhelmingly II. D ISCRETION OF T RIAL J UDGE a. If judge admitted/excluded the evidence, his decision will be sustained on appeal if there was any reason for the exclusion/admittance, even if that ground was incorrect. b. Judge may exclude even competent and relevant evidence if it seems likely to prejudice/confuse jury- FRE 403 c. Why do we give judges so much slack, but hold lawyers to such a high standard? i. Trial judge performs fact-finding in administering law of evidence. ii. Efficiency. It doesnt make sense to retry when the result will be the same. iii. This is helpful when youre defending b/c you can defend on any ground regardless of whether you raised it at trial. III. P ROCEDURAL P ITFALLS AND A DVERSARIAL G AMBITS a. If you failed to object to evidence during trial, can you appeal that evidence should have been excluded? i. No, youve waived the issue unless it was plain error (see above). ii. Typically favors judge, not counsel. b. If you object on general grounds, can you argue on appeal that the evidence shouldve been excluded? i. No. You havent given specific grounds. ii. Youve waived the issue unless it was plain error. c. If you provided a specific ground, but it was the wrong one, can you argue on appeal that the evidence shouldve been excluded? i. No. You still havent provided the grounds for exclusion. ii. Youve waived the issue unless it was plain error. FRE 103 : Ruling on evidence cant be assigned as error unless: o A substantial right is affected; and o Nature of the error was called to the attention of the judge, to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. o Use objection and offer of proof Relevance -4-

Downloaded From I. I NTRODUCTION a. Rule 402 : relevant evidence is generally admissible and irrelevant evidence is not. b. Relevance is relational: ask relevant to what? c. 401 Standard evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be w/o the evidence. i. Standard is really, really low. ii. Judges given lots of latitude. Deference to trial judges is huge. d. Problems w/Relevance i. Decisions can be based on intuition/emotion, whereas evidence emphasizes reason/logic ii. Focus on past events, not future. iii. Belief that we can know enough to warrant a judgment which materially alters the positions and fortunes of the parties. II. What are the two aspects of relevance? a. Materiality i. the evidence must bear on a fact of consequence to this lawsuit AND ii. What kinds of facts are of consequence? 1. Facts that go to the issues raised in the case (in light of substantive law) a. Figure out what elements are of the COA youre trying to prove b. Evidence has to match up with one of those elements 2. Information regarding the credibility of witnesses a. Always seen in light of the facts of the case 3. Background information about witnesses or the event (things that help give the narrative life and color) iii. Old Chief v. United States 1. The prosecution is entitled to prove its case by evidence of its own choice a. [ charged w/felon in possession of firearm, assault. moved for an ordered prohibiting the govt from naming his prior criminal conviction, and instead only that he had been convicted of a crime punishable by one year] 2. basically be charged with a similar crime as one that he was previously charged with. a. Was previously charged with assault causing serious bodily injury 3. Why doesnt want the name of crime in? a. Crimes themselves were so similar. b. Afraid of jury prejudice (this is the kind of guy who assaults people) BAD MAN THEORY 4. US Statutemakes it unlawful to possess a firearm if youve been convicted of a crime punishable by one year. 5. offered to stipulate that he had been convicted of the crime w/o letting jury know what it was for. Govt refused offered stipulation. 6. Stipulation doesnt cause evidence to be irrelevant. 7. DC ruled that govt wasnt required to so stipulate and permitted the govt to introduce the order of judgment and commitment for s prior conviction. 8. On appeal, argued that offer to stipulate rendered prior conviction inadmissible. 9. Does a fact, or an issue, need to be in dispute for it to be of consequence? -5-

Downloaded From a. No. It can still be relevant. b. Court relies on Advisory Note of 401. c. *Impact: you cant render evidence irrelevant simply by stipulating to the fact/issue. i. BUT. . . stipulating might help you keep the evidence out based on prejudice or waste of time under R. 403. 10. Can evidence be relevant even if its overbroad? YES a. Here, prosecution doesnt need to prove that it was an assault. They just need to prove that he was convicted of a prior felony. b. Yes. Prosecution is entitled to choose their own proof, even if some of it might be overbroad. c. You cant find evidence thats a perfect fit every time, so it makes sense to give them some leeway in choosing their evidence. d. The jury needs to reach a certain comfort level and leaving gaps in a story may cause discomfort for the jury and cause the jury to mistrust the facts of the story being told- narrative richness is invaluable 11. claims name is irrelevant a. Documented record of conviction for named prior offence was relevant in making s status more probable than it wouldve been w/o the evidence. 12. Jurors expectations of proper proof. a. If these expectations are not met, jury may penalize the party who disappoints them by drawing a negative inference against that party. 13. HOLDING: DC abused its discretion in admitting s record of conviction. a. s need for evidentiary depth has no application when the point at issue is s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior. b. Its discounted probative value was substantially outweighed by risk of unfair prejudice. (403) 14. Rule: a. An offer to stipulate does not render relevant evidence irrelevant b. Probativeness i. the evidence must tend to make the fact more or less probable than it wouldve been w/o the evidence. ii. RULE 401 it is enough if it has ANY tendency to make a fact of consequence more or less probable than it would have been w/o the evidence. 1. very low standard iii. Direct Evidence 1. Definition: evidence that, if accepted as genuine/believed true, resolves matter at issue. 2. Ex) bank robbery. charged w/robbery. Witness says I saw rob the bank. If you believe the witness, youve resolved the matter. 3. Ex) confessions are direct evidence. 4. Not the best, b/c eye witness testimony isnt very reliable. iv. Circumstantial Evidence -6-

Downloaded From 1. Definition: evidence which requires addl reasoning to reach the intended proposition. 2. Ex) bank robbery. Witness says I was standing outside bank and I saw run outside the bank w/a sack just as the banks alarm was sounding. Must draw further inference. 3. Often much stronger than direct evidence. 4. Steps to Using Circumstantial Evidence a. Figure out what your piece of evidence is (testimony: B ran w/gun and sack as alarm sounded) b. Figure out what proposition youre using that to prove w/that evidence (B robbed the bank) c. Figure out what the connecting generalization must be (person who runs w/gun and sack right after bank robbed is likely the robber.) 5. Professor James: you can only figure out how useful the evidence is if you analyze the connecting generalization a. Is connecting generalization sound? b. How strong/reliable is connecting generalization? 6. Raises questions of coordinating the responsibilities of judge and jury. v. You will win or lose on most relevance issues at the trial level b/c the appellate standard for reversal is abuse of discretion Shannon v. United States [ charged w/violent crime offered insanity defense.] a. Information on consequences of verdict is irrelevant. b. Other courts hold that juries can hear information about the moral reasonableness of verdict. Establishing Relevance: The Evidential Hypothesis a. Evidential hypothesis = explanation why proof is relevant. i. Contains general premises (proposition of general knowledge about the world) ii. Contains specific premises linking the proof to the general premise iii. Sets out the conclusion toward which the evidence points. b. Deductionstated information necessarily lead to this conclusion c. Inductionstated information doesnt necessarily lead to conclusion, but supports it. i. People intending to do something likely do it. People who state an intent likely have it. ii. Forcing premise into prominence is likely invalid. Relevance as a Threshold: The Standard of Probative Worth a. How strong does the tendency have to be? i. More probable than not 1. Excludes items of proof that, taken together, might have high probative value 2. Suggests that evidence is relevant only if it is also sufficient. ii. Suggested inference is more probable than others 1. Sliding scale 2. More strictly scrutinized at the start of trial. iii. Standard of Legal Relevancy 1. Incremental plus value 2. Look at legal precedent iv. Relevant if it makes the point to be proved more relevant than w/o the evidence 1. Favors admissibility 2. Probability of guilt is greater than before evidence of design was received. Problem 2-B (p. 65) -7-





Downloaded From a. Facts: J and A are closing their mobile food stand when they are robbed of their proceeds. Go to the station and identify C as the thief. Police arrest C. At trial, B testifies that when C saw police approaching, he ran to the back door and later hid in a closet. C objects stating that proof of his behavior at the time of arrest is irrelevant. b. Supporting Proffer: Guilty people run when they see copsCarl ran when he saw copsCarl is likely guilty. c. Evidence : C attempted to flee when police came d. Proposition to be proved : C robbed the fish and chips stand e. Connecting generalization : Person who tries to flee from police is generally guilty of a crime. i. What inferences do you need to draw in order to get from flight to guilt? 1. Carls behavior was in fact an attempt to flee 2. Carl was attempting to flee b/c he felt guilty (as opposed to a phobia of police) 3. Carl felt guilty about crime charged (the fish & chips robbery as opposed to the crime that warranted the arrest warrant) a. What facts support the inference that Carl felt guilty about the fish & chips robbery? i. Timing ii. We know that he knew he was in trouble for his 2-yr old warrant. We dont know he knew about the f/c robbery. iii. Were assuming that knew he was under suspicious b/c he did it, (assuming did it, in order to prove that did it =circular argument). b. will argue that he felt guilty about 2-year old outstanding warrant NOT the fish and chips robbery. 4. Carl not only felt guilty, but actually is guilty of the crime charged. f. Judge would probably admit evidence. Standard for relevance is low.


Downloaded From Prejudice I. Rule 403 Introduction a. Rules 401/402 set really low standard of relevance. b. Rule 403 gives judge broad discretion to exclude evidence that IS relevant b/c of other concerns. c. Apply 403 only after youve determined the information is relevant. i. Burden is on the opponent of the evidence to prove that it should be excluded d. 403 gives judge ability to weigh cost/benefit of admitting evidence. e. Rule 403: Exclusion of Relevant Evidence : Even though evidence is relevant it can still be excluded for a variety of reasons: i. Dangers: 1. *Unfair prejudice a. Show something more than that this evidence will hurt your case b. Must show that this evidence causes the jury to think in some way that is unfair c. An undue tendency to suggest decision on an improper basis, often emotional (i.e. bias, sympathy, hatred. d. Jury will use evidence in some illegitimate/unfair manner. e. Emotions make jury members want someone to pay. is a handy person to make pay 2. Confusion of issues by the jury 3. Misleading jury (i.e. changed conditions w/photos) ii. Considerations: 1. undue delay 2. Waste of time 3. Needless presentation of cumulative evidence. f. Operates in conjunction with other rules. g. Standard: probative value of evidence must be substantially outweighed by the aforementioned factors. i. SUBSTANTIALLY OUTWIEGHS is the key term in the rule 1. strong presumption in favor of admission h. Probative Value vs. Prejudice i. Probative value: 1. Reliability and strength of evidence a. Reliabilityhow sure are you that this evidence is valid? How certain are you of the piece of evidence (did witness really say this? Did event really occur?) b. Strengthhow strong is connecting generalization between evidence and point youre trying to prove 2. Need (how much does proponent need this evidence?) a. How important is the proposition this aligns with? (Central to the case? You need the evidence more.) b. Availability of other evidence (if you have other evidence, you dont need this so much) ii. Prejudice 1. Identify source of prejudice (be able to explain why this prejudice is unfair) a. Show why the evidence is unfair. b. What illegitimate thing might the jury do with this evidence? 2. Impact on case (How will this harm your case? How big is the impact?) -9-

Downloaded From a. Usefulness of limiting instruction (telling the jury not to do the illegitimate thing theyre prone to do). 3. two main sources of prejudice: a. jury will overvalue the evidence i. i.e., bad man theory b. jury will use the evidence for an improper purpose i. this arises when evidence is admissible for one purpose but is inadmissible for another 4. Ex) Cant just show that this evidence is going to hurt your case. II. Pragmatic Relevance a. R. 403 allows judge to exclude stuff (unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence.) b. Stipulation CAN be used for 403 (even though its not useful for relevance.) under R. 105 c. STANDARD: substantially outweighed d. State v. Chapple i. Def. was charged with the 1st degree murder for the shooting death of victim. At trial, the prosecution admitted four color photographs showing victims charred body, a close-up of victims skull, and other gruesome details of victims corpse ii. claims that TC erred in admitting photos of charred body and skull of victim. Claims evidence was gruesome and inflammatory. iii. If photos have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against person who committed the offense. iv. TEST: if innate passion/inflame jury, examine whether probative value outweighs prejudice. 1. Is it relevant? (Material and probative) 2. Consider probative value and determine whether it outweighs prejudice v. RULE: The probative value of evidence must outweigh the danger of prejudice to be admissible vi. HOLDING: photos had little probative value when the cause of death wasnt disputed. Photos shouldnt be admitted. 1. Photos were relevant to issues raised by case for 1st degree murder. 2. Doesnt go to disputed issues (was the Dee the witnesses identified) vii. Reasons to admit photos of corpse 1. Identify the victim 2. Show nature/location of fatal injury 3. Help determine the degree of atrociousness of crime 4. Corroborate state witnesses 5. Illustrate/explain testimony 6. Corroborate states theory of how/why the homicide was committed. e. Old Chief v. United States [Felon in possession of firearm. offers to stipulate to keep name of crime (assault) from jury, so that jury would not learn details of prior conviction, and possibly convict for bad man theory i. Previous case determined that name was relevant ii. ISSUE: is name unfairly prejudicial? 1. YES iii. 403 Balancing Test 1. Look at evidence as an island a. Just weighing probative value v. unfair prejudice -10-

Downloaded From b. PROBLEM: permits offering party ability to use the piece of evidence that has the highest prejudice as long as it doesnt substantially outweigh value. c. No one believes in this test today. 2. Look at evidence in context of all evidence a. Are there substitutes to the evidence? b. If alternatives, judge can offer some discount to probative value c. Court adopts this method. This is what courts use now. Rule: 1. A judge applying fre 403 may discount the probative value of an item of evidence when there is a less prejudicial alternative proof going to the same point Alternative evidence of prior conviction available. s offered admission is relevant and conclusive evidence of the element. 1. admits his prior conviction qualifies 2. Evidence only used to show s states; exclusion of the name doesnt deprive of evidence with multiple utility. 3. Distinctions among convictions dont matter. Prior criminal acts can be relevant to determine things such as motive and intent. Evidenceprior conviction (assault)


v. vi.

vii. viii. ix.



xi. xii. xiii.

Probative Value 1. Reliability and strength a. Very strong. Record of conviction is extremely reliable. b. This is reliable and strong as it couldve been. 2. Need a. Importance of propositions i. This is one of the elements, so its an important piece of evidence. b. Availability of other evidence i. There is other evidence available (hes admitting to prior convictions) ii. s stipulation does everything necessary to meet the element of the crime iii. Probative value is pretty low b/c of these alternatives. Prejudice 1. Source of prejudice a. Comparable to Bad Man Theory b. This crime is similar to one he committed in the past. He did it before; hes the guy of guy whos likely to do this again. 2. Impact on Case a. Usefulness of limiting instruction i. use only to show that he had a prior conviction and NOT to show that hes the kind of man to abuse/kill. Availability of other evidence so much substantially drains the probative value that the evidence shouldnt be admitted. HOLDING: risk of prejudice substantially outweighs probative value. Shouldnt have admitted. Dissent: 1. Says probative value is high enough. Focus on narrative value. -11-

Downloaded From 2. must prove particular and specific 3. General principle favors evidentiary depth. xiv. Existence of other evidence doesnt always necessarily exclude evidence. Should just be a factor to consider. f. Old Chief doesnt bind states. States can continue to admit names of prior convictions. g. Examining Photos in general i. s often offer to stipulate scene/cause of death ii. Old Chief doesnt require courts to exclude photos iii. Just b/c photos are gruesome, doesnt mean you can automatically exclude. iv. Some courts exclude gruesome photos when probative worth is minimal and inflammatory impact is great. v. Chance for exclusion increases w/changed conditions (i.e. autopsy reports, month-old photos) vi. Bloody photos are routinely admitted, prior crimes are often excluded. h. ALWAYS REMEMBER THAT ALL EVIDENCE MUST PASS THROUGH THE 403 BALANCING TEST WHEN LOOKING AT EACH RULE OF EVIDENCE IN ACTION i. IS THERE A 403 ARGUMENT THAT COULD BE MADE HERE?


Downloaded From Limited Admissibility III. Limited a. b. c. AdmissibilityConfining the Impact of Proof Need to limit impact/span of evidence Evidence is admissible for one purpose but NOT for another purpose.. Why do you always need to use 403 when your evidence has a proper AND improper purpose? i. Weigh: 1. Probativevalue of proper evidence AGAINST 2. Prejudice - risk that jury will use the evidence for the improper purpose d. Rule 105: Limited Admissibility i. When evidence which is admissible as to one party/purpose but not admissible as to another party/purpose, court shall restrict evidence to its proper scope and instruct jury accordingly. ii. Admit the evidence, on the point for which or against the parties as to whom it is competent, but give limiting instructions to prevent misuse on other issues or as against other parties. iii. If you dont want the instruction, you dont have to have it. However, if you waive the instruction, you dont have right to bitch about it later. e. When there are several s and one makes a statement that affects others, might be forced to sever and bring cases against s separately.


Downloaded From Context IV. CompletenessProviding Context a. Evidence connected to each other. Presents a distortion to present one without the other. b. Present small piece of big picture. c. Rule 106: Remainder of Related Writings or Recorded Statements i. Federal Rule of Completeness. Requires context. ii. When a writing or recorded statement is introduced by a party, an adverse party may require the introduction at that time of any other part which ought in fairness to be considered along w/it. iii. Considerations: 1. The misleading impression created by taking matters out of context. 2. The inadequacy of repair work when delayed to a point later in the trial. iv. Applies only to writings and recorded statements, NOT conversations. v. When can party require immediate introduction of rest of a writing/recorded statement? 1. When its fair that it be considered at the same time. a. Must show that the remainder relates to the same subject matter AND b. tends to explain, modify, qualify, or otherwise shed light on the part already received. vi. If the remainder is normally inadmissible, can it still be admitted under 106? 1. generally yes, because the other party has opened the door to the rest of it by asserting a part a. if the judge thinks it is too prejudicial, he can refuse to admit it under R. 403 (and may well strike the first part under 403 as well) vii. Whats rationale behind this rule? Why isnt it good enough to put the statement into context when it comes to partys turn (rebuttal, crossexamination, etc.) Jury might have already developed their opinion on what the writing/statement says. Might crystallize in jurys mind.


Downloaded From Function of Judge/Jury V. Functions of Judge/Jury a. Trial judge determines questions of admissibility. b. When it comes to relevancy, judge not always the sole decision maker. Shares duty w/jury. c. Simple Relevance 104(a)judge i. Judge will decide here whether person is qualified as a witness, whether the evidence is subject to privilege, and whether a piece of evidence is admissible 1. judge is not bound by the rules of evidence here 2. judge will decide most evidence issues ii. Judge decides if evidence is consequential iii. Judge decides whether proffered evidence really has a tendency in reason to prove the point for which its offered. This is called simple relevance. iv. Up to jury to weigh the evidence. v. Difficult to determine simple relevance from weight d. Conditional Relevance 104(b) jury decides, judge only screens here i. Relevance turns on the fulfillment of a condition of fact, jury will decide whether the condition is satisfied, and the judge admits the conditionally relevant evidence 1. Judge performs only a screening function. a. Determines whether a reasonable jury could find that the condition has been established i. If so, jury will decide ii. If not, he will exclude e. 104(a) v 104(b) i. Generally (a) applies, so that the judge determines whether the rules requirements are met ii. With respect to a few specific rules (or requirements in rules), courts have held that 104(b) applies, so that the judge plays only a screening role 1. I must know these (what it means for a judge to play a screening role) f. Hearing of Jury i. Hearings on admissibility of confessions must be conducted outside the hearing of jury. ii. Hearings on other matters are conducted when interests of justice require or when accused is a witness and so requests. iii. Other than confessions, you should hear preliminary stuff in front of juries. Saves time. iv. Accused has right to testify out of the presence of jury on preliminary matters g. Testimony by Accused i. Accused testifies upon a preliminary matter. ii. Accused doesnt become subject to cross-examination as to other issues. h. Weight and Credibility i. Doesnt limit right of party to introduce before the jury evidence relevant to weight/credibility. i. Most things are 104(a) decisions. i. Judge will decide whether the requirements of the rule of evidence have been met (hard technical rules designed to keep the jury from hearing evidence in the first place). ii. Most less technical things will go to jury. iii. Cordray will tell us what rules are 104(b) situations. Assume everything else is a 104(a).


Downloaded From Hearsay I. General a. Testimonial (including Hearsay) Risks (all limited by safeguards of trial process) i. misperception by bystander 1. risk that declarant might have misperceived what she is talking about ii. faulty memory 1. declarant cannot completely remember what she is talking about iii. misstatement (faulty narration) 1. declarant gargles her words 2. does not say what she meant to say iv. Insincerity 1. risk that declarant is lying b. Safeguards of Trial Process (appear w/in-court testimony) i. Cross-examination 1. right of opposing counsel ii. Demeanor evidence (w/hearsay, trier misses out on voice, inflection, expression, etc.) 1. jury observed iii. Oath (w/hearsay, no obligation for bystanders to speak the truth) 1. witness has sworn to tell the truth c. Concern w/hearsay is that, since we dont have the trial safeguards in place when the statements occur, the evidence coming in is much less reliable. d. Hearsay exceptions are generally built on notion that one or more risks are eliminated or one or more of safeguards are present e. Levels of Credibility i. Make sure bystanders statement was truthful and accurate ii. Make sure in-court testifiers statement is truthful and accurate II. Rule 801(a-c) : hearsay is an out of court statement offered to prove the truth of the matter asserted. i. Used to bar unreliable evidence b. (a) A statement is: i. An oral or written assertion OR ii. Non-verbal assertive conduct of a person a. Constitutes a statement b. Conduct meant to communicate i. Ex) nodding, pointing, sign language, etc. iii. Non-assertive conduct: 1. conduct that communicates but was not meant to do so 2. does not qualify as a statement because it was NOT meant to assert what it is being offered to prove iv. HYPO: captain, after examining every part of the vessel, embarked on it with his family. a. If offered to prove that vessel was seaworthy, it would be a hearsay statement. b. Were his actions meant to state this vessel is seaworthy? i. Probably not. Just making sure the vessel is safe. 1. No intent to make a statement about vessels seaworthiness. 2. Captain isnt seeking to communicate that ship is safe. ii. Captains conduct, even though it wasnt meant to assert anything, is hearsay when offered to assert ships seaworthiness. -16-

Downloaded From HOLDING: this is a statement when offered to prove ships seaworthiness b/c: i. The captains conduct tends to show that he believed the ship was seaworthy AND ii. His conduct and implied belief is equivalent of an assertion of that belief (i.e. that ship was seaworthy). d. His assertion or statement that the ship was seaworthy is offered for its truth (that the ship was seaworthy). e. Doesnt have to be an intended statement to be hearsay. Its enough that the act implies what he thinks. f. If you can imply what the actor believed from his conduct, that implied belief is the equivalent of an assertion/statement to that effect. g. Broad definition of statement. Sweeps in lots of conduct. 2. 801(a) VIEW a. Under 801(a), the conduct must be intended as an assertion to be viewed as an assertion . This conflicts w/Baron Parkes view. b. Nothing is an assertion unless intended to be c. Examine motivation, nature of conduct and presence/absence of reliance. d. Person doesnt intend to communicate something. e. HYPO: sea captain and seaworthiness. Captain didnt intend to indicate seaworthiness. NOT a statement under 801(a). f. Why do FRE exclude nonassertive conduct from the definition of statement? i. Risk of misconception, faulty memory, risk of misstatement, etc. are all still present if we just examine sea captains conduct. ii. We might be misunderstanding the import of his conduct. At this point, were just implying what his conduct means. iii. Why we exclude: If someone is not intending to communicate something, theres no real chance that theres lying. This hearsay risk is really minimized. iv. Thered be so much unevenness b/c sometimes it would be caught, and sometimes it wouldnt be. g. Declarant must INTEND to assert/communicate something. h. How does judge know whether the person asserted something? Judge errors on side of non-assertive conduct (i.e. as a non-statement.) 3. Cain v. George [Son died of carbon monoxide poisoning in hotel. claims gas heater was defective. Chair next to heater had burned.] a. HOLDING: jury finds no negligence; finds for . b. What was the out-of-court statement that the parents complained about? i. Silence of other guests. ii. Georges claim this silence was a statement. -17c.

Downloaded From c. ISSUE: by not complaining, did the other guests intend to assert anything? i. NO. They were just going about their business. ii. No intent to assert that the heater sucked. Can this qualify as a statement? No, no intent to communicate anything. Can this qualify as hearsay? No, b/c its not a statement. Evidence: testimony of past residents who made no complaints. i. RelevantMonoxide came from chair/clothing and not from heater ii. NOT hearsay b/c it derived its value solely from credit being given to witness and NOT the veracity of other persons. Evidence was admissible to show heaters past behavior. Non-complaints are usually admitted.

d. e. f.

g. h.

4. TEST FOR STATEMENT: a. Did D (the one making the out-of-court statement) intend to assert something? b. If yes, proceed to figure out whether its offered for its truth. c. If no, youre done.
5. CHEATS: a. Almost everything written/spoken are statements. b. Generally, well have an issue about whether something qualifies as a statement when were dealing w/conduct. v. (b) A declarant is a person who makes a statement. 1. Must have a person. 2. Excludes animals. (Ex. drug sniffing dog. Police dogs are trained to identify when drugs are present. Dogs assertion when he gives the alert is excluded from the hearsay rule.) 3. Excludes statements by machines. a. If a person is feeding the information into the machine, and all machine is doing is transmitting that information to someone else, then you have a statement. b. Ex) If Cordray sends me an e-mail, I havent received a message from a machine, Ive received a message from Cordray. c. However, if machine has been pre-set and computer itself is generating its own results, courts dont treat that as hearsay, b/c its not an assertion from a person iv. (c) Hearsay 1. Definition: a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 2. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. Definition: i. An out-of-court statement offered to prove the truth of the matter asserted. ii. 3rd party statements/letters observed by witnesses. iii. 802Hearsay is inadmissible unless it falls w/in an exception. iv. Meant to bar unreliable evidence. -18-


Downloaded From v. Statement must be offered for its truth.

vi. Three-Part Analysis for determining whether statement is offered for its truth: 1. What did declarant intend to assert? (Often this is exactly what declarant said.) 2. What does the proponent (person trying to introduce evidence) seek to prove in court w/the statement? 3. Does the jury need to believe the truth of the statement in order for it to help the proponent prove her point
k. If a statement is offered for its truth, we need to examine both levels: i. Make sure Ps statement (underlying statement) was true AND ii. Make sure P actually made the statement l. Non-Hearsay i. Examples that are routinely NOT offered for their truth. ii. Here, its enough that P actually made the statement. We dont care if Ps statement was true. iii. NOT hearsay, b/c we dont need P to evaluate truth of statement. iv. If offered for the truth of the matter asserted is hearsay v. If not offered for the truth of the matter asserted is NOT hearsay vi. These fail to meet part (c) of Rule 801; theyre not offered for truth of matter asserted. vii. Verbal Acts 1. Definition: words have legal/logical significance independent of their assertive quality a. Ex) words of offer/acceptance, words of k itself, defamatory words, criminal solicitation or conspiracy. 2. Often they comprise the operative events of the transaction that generates the suit. 3. When offered to demonstrate the character/nature of behavior, words are nonhearsay verbal acts. 4. Looks like hearsay and when you run the three-prong test, it looks like its offered for its truth. Adds another prong: a. will these words produce immediate legal consequences? 5. Verbal acts look just like hearsay; you must separately ask whether the words have legal significance 6. Make a list of the types of statements that typically have legal significance: a. NEED TO DO THIS, LOOK IN BOOK, HORNBOOK, ETC. i. Words of offer/acceptance, ii. contents of a contract, iii. defamatory words, iv. words of solicitation or conspiracy, v. words of extortion, vi. words terminating a contract (almost anything to do with a contract), vii. words of solicitation viii. Impeachment 1. When a witness makes a statement, but later gives what seems to be inconsistent testimony, the prior statement is commonly offered as impeachment. -19-

Downloaded From 2. When offered for impeachment purposes, prior statements are judged to be nonhearsay. 3. The conflict between the witness statements sheds light on credibility w/o any need to take prior statement of proof of what it asserts. 4. Evidence isnt being offered for matter of truth asserted. Just being shown to offer inconsistency. 5. Problem 3-C a. Facts: Bystander gives conflicting evidence whether blue car had red/green light. b. Was Bystanders out-of-court statement hearsay? i. What did Bystander intend to assert? Blue car had the green light. ii. What does seek to prove in court w/this statement? (1) blue car had the green light OR (2) Bystander isnt a credible witness b/c hes been so inconsistent. iii. Does jury need to believe the truth of the statement in order for it to help the proponent prove his point? (For 1) Yes, he wants them to believe that the blue car had the green light; (For 2) No, as long as Bystander said two different things, inconsistency exists and it doesnt matter which one is true. c. Statement is NOT offered for its truth and its NOT hearsay. d. Risk that jury might use it not only as proof that Bystander isnt credible, but also that blue car had green light. Because it has both proper and improper purpose, you must apply 403 analysis. Examine proper purpose. i. Probative Value Bystander isnt denying evidence, so its pretty strong evidence of inconsistency. This witness credibility is really important issue to case. Probative Value for impeachment purposes is quite high. ii. Prejudice Jury will use evidence for its improper purpose (as substantive evidence that blue car had green light.) iii. Very high probative value and very high prejudice. Judge will admit b/c prejudice doesnt substantially outweigh the probative value. ix. Effect on Listener or Reader 1. Evidence of oral out-of-court statements that she heard, or written statements she read or had a chance to read are routinely admitted. 2. Relevant as proof of knowledge, notice, encouragement or coercion. 3. Purpose of statements it NOT to prove what the statements assert. 4. Problem 3-F a. Facts: man says Im from the gas company. Show me the leak. Gas company claims contributory negligence. wants to introduce mans statement. b. What did Gas Man intend to assert? That hes from the gas company. c. What does seek to prove in court w/this statement? -20-

Downloaded From i. That Alford was influenced by gas man and not contributorily negligent. ii. (1) Prove that Alford works for the gas company. iii. (2) His conduct was reasonable in light of the fact that he was following the instructions of a gas man. d. Does jury need to believe the truth of statement in order for it to help proponent prove his point? i. (1) Yes. If gas man is lying, its not going to help prove that this man actually worked for gas company. ii. (2) No. The key is the effect on the listener. Not used to prove what statement asserts, but only that the statement was made. As long as F said it, As conduct seems reasonable. e. Non-hearsay. Falls under Effect on Listener. Establishes influence; not used to prove what statement asserts. f. 403 Balancing Test b/c one part of evidence is admissible and other is not. i. Probative Valuepretty strong evidence and hes definitely going to need it b/c its a pretty strong element. ii. Prejudicerisk that jury will use for improper purpose of using the evidence to prove the agency argument Objects Definition: words amounting to identifying characteristics of a physical object on which they appear. Words used as identifying characteristics. Such words arent hearsay. They arent offered in their assertive aspect, but as elements in a physical description. Problem 3-G (1) a. Facts: Attempt to link to cocaine distributors at Eagles Rest Bar and Grill in Pine Meadows. b. Did declarant (bar owner) intend to assert something? Yes. They caused the matchbook to have a logo on it. Using these matches as advertisement tools. c. What do matches intend to assert? These matches come from Eagles Rest Bar & Grill, Pine Meadows, and its a good place to go. d. What does seek to prove in court w/this statement? Trying to prove that had been to Eagles Rest. e. Does jury need to believe the truth of statement in order for it to help proponent prove his point? Yes. i. When it says Eagles Rest Bar & Grill, the matches are telling us they come from there. ii. We have to believe that they actually come from the Eagle Rests Bar and Grill (and not, for example, Max & Ermas as an April Fools Day joke) in order to show that had been there. iii. Proponent relies on truth of what declarant asserted. f. The fact that Seaver couldve gotten the matches from someone else is a relevance issue.

x. Verbal 1. 2. 3.


Downloaded From i. It DOES make it somewhat more probable than it otherwise wouldve been that hed been to Rest Bar & Grill. ii. Because its a really low standard, its probably relevant here. g. ANALYSIS 2: allows us to avoid hearsay altogether i. HYPO: What if it was just a symbol/logo (instead of words)? ii. Bring in bar owner to testify that they give out matches like that. iii. When you do it this way, youre avoiding the hearsay doctrine, but youre avoiding the assertion made on the matchbook. iv. Visual matches just using the identifying characteristics. v. Our matches look like this. Yes, our matches match those matches found in Seavers pocket. vi. NOT relying on the WORDS themselves I come from Eagles Bar, but literally the design of the words. 4. Problem 3-G (2) a. Facts: Same facts. Found a mug at the apartment. Mugs says Witter and Fighting Illini. Want to use that Seaver lives at the apartment. b. Whos the declarant? The mug owner. c. What does declarant intend to assert? The mug belonged to Witter, an Illini fan. d. What does the proponent seek to prove in court? The mug belonged to Seaver, which connects him to the house. e. Does jury need to believe the truth of the statement in order to help proponent prove his point? i. YESprosecutor is asking jury to believe that this mug belongs to Witter; reliance on the I belong to Witter statement of the mug ii. NOsomeone saw Witter with mug and now mug is in house (avoids hearsay problem b/c not relying on truth of statement); name/design Witter isnt common and connection is based on probabilities 5. Courts are split on how to handle; some take straight-forward approach and hold it to be hearsay, while others take the verbalobject approach and hold it to NOT be hearsay. xi. Circumstantial Evidence of State of Mind 1. Arises when proponent is trying to speak to persons state of mind/memory a. Cases re relationships: i. Child custody, wrongful death, loss of consortium b. Cases re declarants competency i. Case where trying to commit declarant b/c of mental competency (I am napoleon) 2. Doesnt matter that factual claims were offered to prove feelings (outcome wouldve been the same had she discussed feelings rather than conduct.) 3. Content of words matter to argument for non-hearsay, but not to truth of them. -22-

Downloaded From 4. This category really isnt that broad. Its actually very, very narrow. a. Very few statements fall within the category 5. Elements: a. Statement indicates something about the declarants state of mind (s feelings about Ira) AND b. Declarants state of mind is relevant to the case (feelings were relevant to how she wouldve treated him had she lived) AND c. Statement helps make this relevant point regardless of whether its true or false. i. If he really thinks hes Napolean, that suggests hes crazy. ii. If he really doesnt think hes Napolean, but still goes around saying hes Napolean, that also suggests hes crazy. 6. Betts v. Betts [ (Rita-abuser)/ (Michael-awarded custody) suing for custody of child. claims error in admitting certain testimony from foster mother.] a. HOLDING: statements the child made to her foster mother were admissible. b. Statements werent admitted to prove the truth of the allegations but merely to indirectly and inferentially show the childs mental state. i. Look at veracity and competence of speaker ii. Statements used to show childs mental state iii. Mental state is important here in order to determine whats in childs best interest. c. Statements indicate childs state of mind regardless of the truth of the statement d. RULE: out-of-court statements may be admitted which circumstantially indicate a state of mind regardless of the truth of the statement. 7. Film Clip [Child custody case. Evidence: child wants to see it. Dad says no. Child says Leo lets me touch it.] Should this be hearsay? a. If this is true, she shouldnt be w/mothers boyfriend. b. If its false, she still knows language now and still shouldnt be living with people that are exposing her to this language. c. Non-hearsay exception. Evidence of state of mind. xii. Significance of Disclosure 1. Problem 3-K a. Facts: B charged w/ airplane theft and marijuana possession. B testifies that plane made emergency stop at airstrip, he let it get repaired and watched it fly away later. b. Evidence that B told other people about plane on airstrip. Claim that man w/guilty conscience isnt going to advertise possession of stole property. c. Did B intend to assert something? Yes. B communicated something. d. What did B intend to assert? That he was storing King Air on his airstrip.


Downloaded From e. What does B seek to prove in court w/ statement? Willingness to tell others that King Air was on airstrip (leading to inference that involvement was innocent.) f. Does jury need to believe truth of statement? No. Just the fact that he said it matters. Statement wasnt offered to prove that he was, in fact, storing the plane, but rather to show that he was willing to say he was to others. 2. The problem serves as an example of evidence that is nonhearsay, but doesnt fit w/in a non-hearsay category. xiii. REVIEW: 1. Was there an assertion? Did declarant intend to assert something? a. This helps to determine whether its a statement under 801(a). b. Probably a problem only w/conduct. 2. Is statement offered for truth of matter asserted? a. What did declarant intend to assert? (most likely exactly what he said). b. What does proponent seek to prove in court w/statement (sometimes multiple purposes for some statements). c. Does jury need to believe truth of statement in order for it to help proponent prove her point? i. Consider whether statement falls w/in 5 nonhearsay categories. ii. If it does, statement isnt hearsay, b/c its not being offered for its truth. iii. Ex) if offered for impeachment, jury doesnt need to rely on truth; used to show credibility, etc.


Downloaded From HEARSAY QUIZ 1. As proof that B lacked testamentary capacity in April, evidence that several times in March, he told friends that he was Woody Allen. Not hearsay. Circumstantial evidence of state of mind. 2. As proof that C assumed the risk of accident on account of faulty brakes in riding in Ds car, Ds testimony that I told C before he got in that something was wrong with my brakes. Not hearsay. Effect on Listener. Purpose isnt to prove what statement asserted, but rather what C knew. 3. In Es personal injury suit, as proof that F was an agent of defendant AllCure Drugstore, Es testimony that F said, Im awfully sorry, I was running an errand for my employer All-Cure Drugstore. Yes hearsay. Must believe the truth of Fs statement Im an agent to prove that F was an agent of defendant (similar to gas man example). 4. As proof that G stole a car, evidence that police stopped him and that his girlfriend H falsely stated at that time, This car belongs to my brother. Not hearsay. The statement is not offered for its truth, its offered to show a lie. Could also argue verbal act; when lie to police, thats obstruction of justice. 5. As proof that H was frightened when J brandished a plastic pistol and demanded cash, evidence that H began sweating and shaking. Not hearsay. Not a statement. H didnt intend to assert something by sweating/shaking. 6. As proof that N committed the robbery with which he is charged, testimony from bystander O that I picked N out of lineup as the one who did it. Yes hearsay. N is the one who did it; N did it; we must believe Os statement. Why do we care about Os out-of-court statement when hes on stand now? We dont know if what he said out-of-court was accurate. Jury cant look at him when he made statement. Safeguards in place only at repetition of statement, not at original statement. 7. As proof that P was unusually accomplished in French, evidence that in her first year of college she was accepted into a fourth- year course. Controversial. Was administrator attempting to assertion that P was smart in French OR was she just putting P in correct course for graduation requirements. If judge isnt sure, you let it in (assume non-assertive and not barred by hearsay. 8. As proof that Q participated in criminal venture under duress, evidence that co-participant R told him, We will kill you if you dont help us. Not hearsay. Jury doesnt need to believe truth of statement. Statement just has to be made. Effect on listener. 9. As proof that S favored increasing the penalties for drunk driving, evidence that she joined an organization entitled MADD, coupled w/proof that principal aim of organization is to increase such penalties. Probably not hearsay. Is joining MADD a statement that she encourages increased penalties? Probably not. Shes probably joined for benefits of being a member and NOT to assert something. Probably not an assertion and therefore not hearsay. However, b/c MADD (or KKK) believe so strongly in what they believe, it might be seen as an assertion. Most of the time though, NOT making a statement. It was hearsay if it was an assertion, NOT hearsay if it wasnt an assertion.


Downloaded From 10. As proof that defendant T owned a .32 calibar pistol, testimony by a police officer that when he asked Ts father U whether T owned such a pistol, U went to a drawer in the house where he and T lived, pulled out a .32 calibar pistol and handed it to officer. Yes, hearsay. Father hands gun (this pistol is my sons); son owned pistol; jury must belief truth of statement. 11. As proof that V acted in good faith in arresting W, offered by V in defending against the calim brought by W for violation of his rights, evidence that the prosecuting attorney told V you have probable cause to arrest W. Not hearsay. Fact statement was made is what matters. Effect on listener. 12. As proof that St. Johns beat Georgetown in basketball, evidence that Z, who had bet on Georgetown, paid off his debt. Not hearsay. No statement. Z is just paying off his debt. HYPO: what if Y lived in Zimbabwe and Z sent Y $10? This might be an assertion. If other party doesnt know result, theres a reason to communicate that St. Johns won. Assert you won bet in order to assert that St. Johns won would result in hearsay. 13. As proof that Y went to New Orleans on Tuesday, evidence that on Monday he said tomorrow Im going to New Orleans. Yes hearsay. Must rely on truth of Ys statement in order to assert that he went to New Orleans on Tuesday. 14. As proof that his brakes were bad, evidence that Z said, I think I ought to reline my brakes before anyone drives my car. Yes, hearsay. Jury needs to believe truth of statement in order to prove point. If declarant is lying, this doesnt help jury. 15. As proof of the manner in which X was injured in the workplace, evidence of a videotape in which X reenacts the events that led to her injury, offered into proof by X. Yes, hearsay. Videotape is statement. This is how it happened. Jury must believe thats how it happened, so its being offered for its truth. This is hearsay. 16. As proof that E didnt have permission to drive the car to Sacramento, evidence that owner F had told E not to drive it out of San Francisco. No hearsay. Youre okay w/in SF. Not okay outside of SF. Independent legal significance, b/c statement set boundaries for Es authority to use car. Verbal act. 17. As proof that tenant G terminated his month- to-month tenancy effective November 1, evidence that G sent owner H a letter in September that stated: October will be my last month as tenant. I am vacating by November 1. No hearsay. Verbal Act. Letter serves to sever tenancy at that point. Gs words in letter have legal significance independent of assertive quality. 18. As proof that the stairs in Bloomindeals Department store were adequately lighted, testimony by the floor manager that in 6 years several customers had complained that they were a long hard climb, but no one had mentioned any lighting problem. No hearsay. Silence doesnt equate an intent to communicate. Theres no statement here. 19. As proof that the hit-and-run driver drove a Porsche, testimony that the logo on the rear of the vehicle in question read Porsche. No hearsay. Verbal object. Logo she saw is the same logo she sees on all porches. Makes it more probable than not that this was a Porsche. Not offered in assertion aspect, but as -26-

Downloaded From element in physical description. Court split on how to handle verbal objects; some say hearsay, some dont. 20. On the question whether tenant L had paid his rent for the month of April, testimony that in handing landlord M a check in the appropriate amount L said to M, This is for April rent. No hearsay. Verbal act. The act of turning in the rent has legal significance of saying here, Im paying rent. 21. On the issue set out above, testimony that on day after giving the check to M, L was heard to say, I paid my rent for April. Yes hearsay. I paid my rent for April; A paid rent for April; must rely on truth of out-of-court statement. No legal significance here. 22. As proof that HiTechCrop was a bad credit risk, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating. Yes hearsay. Hs poor credit rating; H is a bad credit risk; must rely on out-of-court statement. 23. As proof that BankWest acted reasonably in refusing to refinance HiTechCorps debt, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating. No hearsay. Effect on Listener. Not used to prove what D/Bs statement asserts, but only that it was made. 24. As proof that R was seriously ill, evidence that he was being kept in the intensive- care unit of the hospital. Probably not hearsay. Issue: is this a statement? Did doctor intend to assert this man is sick enough for our hospital? OR was he just doing his job? If judge isnt sure, treat as non-assertive and assert. 25. As proof that V is a violent man, testimony that he is reputed in his community as such. Yes, hearsay. Reputation is what other people say about you out-of-court. Must rely on truth of those statements.


Downloaded From January 26, 2005 I. Hearsay Exceptions a. General i. 801(d) defines it contents as non-hearsay 1. Everything that comes within this exemption must first meet the definition of hearsay. 2. Youre never going to get to 801(d) if its not hearsay to begin with. 3. Not hearsay language is misleading because it IS hearsay, but its being exepted (admissible despite the fact that its hearsay). ii. These exceptions allow us to use the evidence even though the evidence is hearsay. b. Prior Inconsistent Statements i. Problem arises when witness on stand denies having made a prior out-ofcourt statement, or admits having made it, but denies its truth. ii. The language IS hearsay b/c even though the declarant is now testifying before the jury, their out-of-court wasnt subject to oat, demeanor, crossexam, etc. iii. The first sentence of 801(d)(1) applies two requirements that apply to everything in 801(d)(1), (A) tacks on to additional requirements. iv. Rule 801(d)(1)(A)a statement is not hearsay if. . . 1. Statement is inconsistent with declarants testimony a. Assures a thorough examination of both versions while witness is on the stand. b. Bars any general/indiscriminate use of previously prepared statements. 2. Statement mustve been given under oath subject to penalty of perjury at trial, hearing, or other proceeding or at deposition. a. Senate wanted to drop this requirement b/c when witness qualifies the prior statement, hes under oath, and that should be enough. b. Conference now requires prior inconsistent statement to be given under oat subject to penalty of perjury at trial, hearing, or other proceeding/deposition. c. Previous trials, preliminary hearings, grand jury proceedings, and depositions all satisfy this element. d. HYPO : declarant gives statement to police officer during interview at police station. Does this qualify? NO. This isnt like a proceeding. Theres no faade of neutrality here, other formalities are missing (rights, record, etc.) Statements at a police station are NOT considered to be given as a proceeding. 3. Decarant must testify at current trial. 4. Declarant must be subject to cross-exam concerning statement. a. Does declarant need to remember event itself? (i.e. the robbery) i. No, he needs to be subject to cross concerning the statement. b. Does declarant need to remember giving the statement about the event? (i.e. making the statement to the grand jury) i. Case law is unclear. -28-

Downloaded From ii. Ability to cross on general credibility may be enough. iii. ASK: can the defense adequately attack the declarant on general credibility issues? If yes, then declarant is subject to cross. Why SHOULD we treat later statements as hearsay? Conditions of oath, cross-examination, and demeanor didnt prevail at time statement was made and cant be supplied by later examination. Why SHOULDNT we treat statements as hearsay? 1. The dangers against which hearsay rule is designed to protect are largely inconsistent. 2. Declarant is in court and cross-examined in regard to statements. 3. Trier of fact can examine declarants demeanor in court as he tries to explain away the inconsistency. 4. Context of formal proceeding, an oat, and the opportunity for cross-examination provide firm addl assurances of the reliability of the prior statement. 5. Prior statement was made nearer in time to the events, when memory was fresher and intervening influences hadnt surfaced. Bulk of case law has been against allowing prior statements of witnesses to be used generally as substantive evidence. Problem 4-A. 1. Facts: B is charged on charges of racketeering and disrupting interstate commerce, arising out of armed robbery on Halshire Foods. At grand jury proceeding, B testified that he had cased the store, and basically admitted to robbing the safe. At trial, B says he cant remember what happened, b/c he got under the influence of valium. 2. This set of facts easily meets the second and third requirement of 801(d)(1)(A). 3. Was statement inconsistent w/declarants testimony? a. YES i. You dont need a direct contradiction ii. Nothing is inconsistent with something iii. The standard for inconsistency is very lowjust show some important change in what was said before and what was said now. iv. Bs selective memory loss makes it look like hes faking/feigning memory loss. v. Faked memory loss satisfies inconsistency requirement. vi. The more facts you have to show that B is faking it, the more likely youll be able to show inconsistency. b. NO i. There was no direct contradiction made. ii. Time lapse (prior statements have greater impact) iii. Memories get worse over time; memory problems were aggravated by influence of valium. 4. Is B subject to cross-examination concerning statement? a. YES i. B just has to be crossed on statement, not necessarily on the actual act.

v. vi.

vii. viii.


Downloaded From ii. Here, the declarant relies on govt for livelihood (witness protection); so his credibility can be attacked on cross due to this bias. iii. If witness agrees to cross on general credibility issues, thats usually enough to satisfy #4. b. NO i. How can you be crossed on something you dont remember? 5. HOLDING: statement here would probably be admitted. 6. Is there an alternative to this that avoids the hearsay problem? a. Impeachment i. You could bring in the evidence as impeachment. ii. Dont use it as proof of the robbery; just use to show that B isnt credible b/c he contradicts himself. iii. Impeachments serve as non-hearsay uses b/c were not relying on the statement for its truth. b. Why doesnt proponent just do this then? i. Because under 801(a), you can also use the evidence to show proof of the robbery. ii. Under impeachment, youd be limited to showing that B contradicted himself; cant use as evidence of robbery. c. Even w/impeachment, the judge might keep the evidence out under 403. i. Risk of Prejudice (jury will use information for truth) ii. Value (value is really low, b/c declarant isnt really testifying to anything under impeachment.)


Downloaded From c. January 28, 2005 Prior Consistent Statements i. General: 1. Cant use just to bolster in-state credibility. 2. If credibility is attacked, can use consistent statements to rehabilitate credibility. 3. When just using to rehabilitate, is it hearsay? a. Helps rehabilitate b/c its consistent w/what they said before. b. Dont need to rely on truth to prove consistency c. Here, its important statements were the same, NOT whether theyre true. d. Witness is credible b/c she hasnt changed her story. e. Similar to impeachment exemption. 4. If you want/need the statement for its truth (substantive), its hearsay and you need to find a hearsay exception (see below). 5. Belief that witness made up story or was coerced into story. 6. Rebuts attack only if uttered before motive/influence. ii. Rule 801(d)(1)(B) consistent with declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. iii. Elements: 1. Statement must be consistent w/declarants present testimony 2. Statement must be offered to rebut a charge of recent fabrication or improper influence or motive. a. What constitutes a charge of recent fabrication. . .? i. Express charge (youre making this up) works. ii. Implied charge (you met w/opposing counsel last night, didnt you?) works too. b. Rebuttaladdressed in Tome. 3. Declarant must testify at current trial. 4. Declarant must be subject to cross-examination concerning statement. iv. Tome v. United States [ charged w/sexual abuse of his daughter. During trial, court admitted certain witness statements, notwithstanding the fact that they were introduced after charges of recent fabrication were made.] 1. ISSUE: whether out-of-court consistent statements made after an alleged fabrication, improper influence, or motive arose, were admissible. 2. Daughter testified at trial, but didnt really testify/describe anything relating to abuse. 3. On cross, suggests that mother improperly influenced her so girl would make up statements about her dad so she could live with mom. 4. seeks to bring in testimony about girls prior out-of-court statements about abuse. 5. RULE: permit introduction of consistent, out-of-court statements to rebut, when statements were made prior to time charges of recent fabrication, influence, motive. 6. Statements mustve been made before influence arose. 7. CLif you want to use prior consistent statements to rebut influence, prior statement must be made before influence (premotive rule) 8. ACN rejected balancing approach to hearsay (probativeness v. strength of motive). -31-

Downloaded From 9. Post-motive statements bear taint of influence. 10. HOLDING: statements not made before motive; not admissible. 11. Court codifies the CL rule. Why did court go this way? a. Greater chance for relevancy if made pre-motive. b. To hold otherwise, shifts focus to out-of-court statements, which arent cross-examinable. c. 6-year-old is unexaminable now b/c shes frozen, so it makes it difficult to get at truth of statements. d. Supreme court wants to avoid shift to out-of-court statements. 12. Problem of using rule? a. Hard to figure when motive to lie arose. b. Postmotive statements can be relevant sometimes to rebut the charge. c. Involves considerable judicial discretion d. Reduces predictability e. Enhances difficulties of trial preparation b/c parties dont know in advance whether particular statements will be admitted. 13. DISSENT: a. Issue is one of relevance. b. Different Categories of Consistent Statements i. Placing a claimed inconsistent statement in context ii. Showing that an inconsistent statement wasnt made iii. Indicating that witness memory isnt as faulty as examiner has claimed. iv. *Showing that witness didnt recently fabricate his testimony as a result of an improper influence or motive. c. Dissent says majority chose to focus on only one category (maybe b/c the jury isnt confused by the other ones?) d. 801(d)(1)(B) shouldnt bar admission of postmotive consistent prior statements. v. Broad Interpretationuse both rehabilitative and as substantive evidence. vi. *Narrow Interpretationuse only as substantive evidence. Rehabilitative --Rebut charge of recent fabrication or improper motive. --Premotive requirement may apply --To explain alleged prior inconsistency --To rebut charge of forgetfulness Substantive --To rebut charge of recent fabrication or improper motive (801(d)(1)(B) --Premotive requirement applies (Tome) --Admissible under some other hearsay exemption or exception.

vii. Unresolved Questiondo you need to meet pre-motive requirement if all youre trying to do is rehabilitate your witness? 1. Rule is ambiguous 2. Case law goes both ways. d. Prior Statements of Identification801(d)(1)(C) i. Usually arises in criminal trials, but applies at civil trials too. ii. If victim is testifying/identifying in court, do you have a hearsay problem? No, not an out-of-court statement. iii. Whats the danger w/in-court identifications? 1. Setting is so suggestive. Theres only one sitting there. Theyre going to pick him. -32-

Downloaded From 2. In-court testimony is highly unreliable. 3. High impact on jury. Cant get it out on hearsay; argue 403 prejudice (but youre going to lose, b/c statements still have high probative value.) Rule 801(d)(1)(C) 1. All out-of-court identification is admissible. 2. Why do we have such broad exemptions for out-of-court identifications? a. Made closer in time to crime (less concern w/memory loss) b. Situation is less suggestive than in-trial setting. c. In-court testimony is less reliable than out-of-court. 3. Elements: a. Statement must be one of identification b. Declarant must have perceived person c. Declarant must testify at current trial. d. Declarant must be subject to cross-exam concerning statement. State v. Motta [Stock clerk robbed at gunpoint. Cashier gave description, sketch artist drew. claims that TC erred in admitting a police sketch.] 1. Does sketch constitute hearsay? Yes a. Declarants statement this is what he looked like b. Offered to prove this is what the guy looked like. c. Mug shot combined w/my statement is hearsay too. 2. IDs made immediately after the crime are more reliable. 3. RULEsee elements above. 4. HOLDING: the sketch is hearsay, but its admissible. 5. Pretrial ID can be used as substantive proof of ID. Statement here is admissible as substantive evidence. 6. Both witness and sketcher are available for cross-exam. HYPOPolice officer was present when W identified sketch as man who robbed her. Can police officer testify that W identified man? 1. Its hearsay. 2. W not testifying at cross-exam. 3. However, if W comes back and is subject to cross, someone else can introduce statement into evidence. 4. Why not just have W introduce? Why have police officer introduce? a. W forgets making statements OR the identification. b. Are these forgetful witnesses still cross-examinable? Supreme Court says yes. 5. Did artist testify? Does he need to? a. No, he kind of drops out. b. W adopts picture as her statement/assertion once she says yes, thats the man who did it. 6. No requirement that declarant also identify him in court. HYPOwhat if W changes her mind? Can prosecution still use prior identification? 1. Yes, no requirement of consistency. 2. All four elements are still met. 3. Can you use 801(d)(1)(A) and claim this is an inconsistency? a. NO b. Police sketch wasnt made at proceeding and wasnt made under oath. -33-

iv. v.




Downloaded From ix. HYPOwhat if W never saw robber, but heard voice and identified as M? Can you bring this in? 1. YES 2. Perceived meant to be broader than just sight, and probably includes voice as well.


Downloaded From February 1, 2005 II. Hearsay Exceptions (cont.) a. All of these statements meet the definition of hearsay, but are statutorily deemed to be non-hearsay. b. These statements could still be barred for other reasons. i. Ex) confession could be admissible under 801(d)(2)(A), but if it was in violation of Miranda rights, it wont be admitted. c. Individual AdmissionsRule 801(d)(2)(A) i. Why are admissions removed from hearsay? 1. We have most of the hearsay concerns still (still might not be reliable, etc.) 2. The most importance safeguard for witness is cross. a. Here, if S is being sued, S can take the stand and set the record straight. b. If its you, you cant complain about not getting a crossexam, b/c you can just take the stand yourself. 3. When its the partys own statement being admitted, the danger is basically removed. 4. Fairness issue involved; what a party says ought to be admissible against him. ii. Elements (statement is admissible if. . .): 1. Statement is offered against a party a. Only use provision when youre offering statement against person who made it. b. You cant get your own statements under this rule 2. Must be the partys own statement (CAN be made by authorized agents, employees, and fellow conspirators) iii. No personal knowledge requirement 1. The party is in a position to explain it away 2. Adversary systempeople should be responsible for what they say iv. Problem 4-B (p. 185) 1. FACTS: M left truck w/C (who wasnt there). D (Cs employee) left flaming torch unattended. Fire destroyed Ms truck. M sues C (through respondeat superior). M calls E (insurance adjuster). C spoke to E about fire. 2. EvidenceE will testify that C said the fire started in the paint shed when D put a flaming welding torch on the ground too close to the fumes. 3. Should Carters statement come in? a. Statement should come in. b. Statement is offered against C (via respondeat superior) c. The statement is Cs. 4. Does C have personal knowledge? a. No, he wasnt there. b. You dont have to have personal knowledge to make an admission. c. This goes against general rule that you must have personal knowledge to make a statement thats entered into testimony. d. C can get on stand and say I wasnt there. I dont really know. 5. Does it matter that C was speaking in his interest (b/c he only said the statement in order to get insurance money.) -35-

Downloaded From a. No, he said it and it was offered against him. Those are only two requirements. b. Theres no against interest requirement. d. Spill-Over Confessions i. Burton v. United States [At a joint trial of and his accomplice, accomplice didnt testify, but govt introduced accomplices oral confession, which stated that both co-s were guilty.] 1. Delli Paoliprejudice to co-can be eliminated w/limiting instruction. 2. EvansBurton and I committed the robbery. 3. LOWER COURTS: a. Set aside accomplices conviction on the ground that oral confession shouldnt have been received in evidence against him. b. Affirmed s conviction b/c trial judge instructed jury that accomplices confession was inadmissible hearsay against . 4. HOLDING: reversed. Found for . Despite limiting instruction, accomplices out-of-court confession at s trial violated s right to cross-examine witness against him. 5. RULE: a limiting instruction to protect one when anothers confession is introduced is NOT effective. The evidence is too weighty. a. Confessions that implicate others are extremely prejudicial. b. Criminal cases carry higher stakes. 6. PER SE RULE: confession of co- (Evans), which is inadmissible against (Bruton), cant be used if it implicates (Bruton), as long as co- (Evans) doesnt testify. 7. What TC did violates Bs rights under confrontation clause (tells us this doctrine applies only in criminal trials. 8. The confession of a co-, which is inadmissible against , cant be used if it implicates , at least if co- doesnt testify. 9. DISSENT: this limits circumstances where co-offenders can be tried together. ii. Elements: 1. Must be dealing w/a confession in a criminal case. 2. Confession has to be inadmissible against . 3. Has to implicate that . 4. Co- who confessed must not testify iii. Options for Prosecutor faced w/this problem 1. Sever the trial (try B separately from E) a. Risk of inconsistent verdicts b. Strategic advantages of trying together. c. Its really expensive to put on two different trials for basically the same crime. 2. Redact the confession a. Not helpful to E (I committed the robbery is much different than B and I committed the robbery.) b. Blanks dont suffice either (its obvious that _____ and I is B and I c. Hard for s to testify to redacted statements. 3. Forego the confession 4. Impanel two juries. a. Have a E jury and a B jury -36-

Downloaded From b. When the confession is introduced, the B jury should be excused. e. Adoptive Admissions801(d)(2)(B) i. Ex) PO says did you rob the bank? Suspect answers yes. Answer adopts POs statement. ii. If x adopts, then x becomes declarant and statement becomes his own. iii. Elements: 1. Statement must be offered against the party. 2. Party must have manifested an adoption of belief in the statements truth. iv. United States v. Hoosier [ convicted of armed robbery. told R that he was going to rob; showed up later w/$$ and girlfriend said they had more $$ earlier.] 1. Is Hs statement Im going to rob the bank admissible? a. It is hearsay. b. Its Hs own statement and is offered against him. c. Admissible under 801(d)(2)(A). 2. Is GFs statement that aint nothing. We had stacks of money earlier hearsay? a. It is hearsay. b. Comes in under 801(d)(2)(B). c. H adopted through silence. d. RULE: a persons silence serves as adoption if, under all the circumstances, it wouldve been natural for person to deny statement if it had been untrue. 3. If it wasnt true, shouldve denied it. His refusal to deny constituted an adoption of GFs statement. 4. Why wouldve it have been natural for H to deny GFs statement if it was untrue? a. GFs statement implicated them in some serious crime. b. Given Hs earlier statement, H wouldve wanted to clear up false implications if H was wrong. v. Tacit Admission Doctrine 1. Silence as an adoptive admission. 2. RULEa party is considered to have adopted anothers statement by silence if it wouldve been natural to deny the statement had it been untrue. 3. Factors: a. Party heard the statement b. Matter asserted was w/in partys knowledge. i. No personal knowledge requirement w/admissions. Why are we including it here? 1. Because were using it to explain silence. 2. He had to know what was being discussed, or how else would he know to object to it? c. Occasion/nature of statement was such that he wouldve likely replied if he didnt mean to accept what was said. 4. How to rebut that silence was adoptive: a. Party didnt understand statement b. Some physical or psychological factor explains silence. c. Speaker was someone party was likely to ignore d. Silence cam in response to questions from law enforcement officer. f. Admissions by Speaking Agent801(d)(2)(c) -37-

Downloaded From i. Exempts a statement made by a person authorized by the party to make a statement concerning the subject (i.e. lawyer, real estate agent, accountant, etc.) ii. Rationalewhen one person hires another to act for him/her, its fair to allow words of latter to be used against him at trial. iii. Elements: 1. Statement must be offered against the party 2. Statement must be authorized by party to make a statement concerning the subject a. The contents of statement may be considered but arent alone sufficient to establish Ds authority. iv. Authority can be express or implied. v. Statement can be made for internal reasons (means this includes books/records, etc.) g. Admissions by Employees and Agents801(d)(2)(D) i. Traditionally, courts used strict agency test. 1. Employee had to be authorized to make statements. 2. Almost nothing was admissible. 3. Authority only extended to job duties, NOT to making statements on companys behalf. ii. Elements: 1. Statement must be offered against the party. 2. Statement must be made by partys agent/servant a. The contents of statement may be considered but arent alone sufficient to establish Ds agency/employment. 3. Statement must be concerning matter w/in scope of declarants agency/employment. a. The contents of statement may be considered but arent alone sufficient to establish Ds scope of employment. 4. Statement must be made during existence of relationship (i.e. while declarant was still employed. iii. Mahlandt v. Wild Canid Survival [Alleged attack by wolf on child. Two statements by , one statement appearing in the records of board meeting of corporation.] 1. Evidence: a. Ps note Sophie bit child b. P told Sophie bit child c. Minutes from board meeting Sophie bit child. 2. Ps Statements: consider use of statement against both parties: a. AGAINST P: yes, 801(d)(2)(A). Individual admission being offered against him. b. AGAINST CORP: i. Made by partys agent/servant: P is centers agent. ii. Concerned matter w/in scope of agents employment: P had wolf on property; kept it as part of his job. iii. Made during existence of relationship: yes, P was still employed w/company iv. Offered against party: yes, offered against center. 3. Minutes: consider use against both parties: a. AGAINST CORP: yes i. Center adopted minutes through their approval. ii. Falls under agency/employee exception. -38-

Downloaded From iii. Directors work for company; statements made against company, etc. iv. Court uses 801(d)(2)(C), which works here too. b. AGAINST P: no i. P didnt make statements himself. ii. P didnt adopt statements. iii. Board isnt Ps agent 4. claims his statements were in-house admissions. 5. Communication to outsider isnt an essential characteristic to admission. 6. No requirement for to have personal knowledge of facts underlying his statement. a. P is going off his sons information. He has no personal knowledge. b. What if P said my son told me that Sophie bit a child i. NOT w/in 801(d)(2)(D) ii. NOT Ps own statement. 7. Multi-Level Hearsay a. Every level of multi-level must qualify as hearsay. b. Work on two statements individually. Must find exceptions for both. 8. HOLDING: ps statements were admissible against ; meeting minutes were admissible, but there was no agency relationship established between and corporation, so minutes shouldnt be used against . 9. 403 doesnt warrant exclusion. iv. Even if employee has no personal knowledge and relies on information given to him by a 3rd party, it may still fall w/in this exception. 1. ASK: was declarant making statement as his own statement? Did declarant adopt statement as his own? 2. If yestreat as single statement, apply this exception and know that personal knowledge isnt required. 3. If nodeclarant is just relaying statement to someone else; treat as multiple hearsay.


Downloaded From February 3, 2005 m. Coconspirator Statements801(d)(2)(E) i. Conspiracy a common undertaking where conspirators are agents of one another. So, statements of one can be attributed to others. ii. We have really moved far away from the core of the admissions doctrine. 1. Can you get on the stand and explain away a co-conspirators statement? Not likely. 2. You may or may not even know that co-conspirator. iii. Requirements: 1. Declarant and the party () must have conspired (co-venturer requirement) a. Statements contents may be considered but arent alone sufficient to establish the existence of the conspiracy and the partys and s participation in it. b. Hearsay statement alone wont meet preponderance standard. c. Usually the toughest element to prove. Show every fact that leads to the presumption of a conspiracy. 2. Statement mustve been made during course of conspiracy (pendency requirement) 3. Statement mustve been made in furtherance of conspiracy (furtherance requirement) 4. Statement must be offered against the party. iv. What evidence should judge be allowed to consider in determining if there was a conspiracy? 1. Common Lawhad to have independent evidence that a conspiracy existed; cant use the piece of evidence in question (e.g., the statement itself.) 2. Bourjaily v. United States [ charged w/conspiring to distribute cocaine. Govt introduced out-of-court statements.] a. ISSUE: whether declarant and party had conspired. b. Procedural Issue: whether judge/jury gets to decide whether parties conspired. i. HOLDING: judge decides whether requirements are met. ii. Court clarifies that this is a 104 issue for the judge. c. What standard of proof should judge use to determine whether elements of hearsay exception are met? i. Choices: preponderance, clear/convincing and beyond reasonable doubt. ii. Court chose preponderance standard. iii. Judge uses this standard in EVERY issue of evidence. d. What evidence could judge consider in determining whether elements were met? e. LOWER COURTSstatements were statements made by a co-conspirator during the course and in the furtherance of conspiracy. f. HearsayGreathouses out-of-court telephone conversation with the friend () about the quality of the drug and the price. g. RULE: In determining whether conspiracy existed and whether was a member of the conspiracy, court can examine hearsay statement to be admitted. -40-

Downloaded From h. Court refused to follow common law and instead looked at Rule 104(a). i. Court says that FRE overruled common law. ii. Rule 104(a) says that a judge is NOT bound by the FRE when making an evidentiary decision. iii. Judge can examine anything, including inadmissible evidence. iv. If judge can consider inadmissible evidence, then he should be able to consider this statement. It shouldnt matter whether its admissible. i. HOLDING: Ls out-of-court statements were properly admitted against . j. Majority had a perfectly acceptable option to side w/dissent i. Kind of goes in the face of the advisory committee note. ii. Majority broadens the exemption, even though this goes against ACN. iii. This is the opposite of Tome. (Tome narrowed rule interpretation). iv. Court looking towards broader policy decisions (rather than ACN). k. POLICY REASONS: i. Conspiracies are really hard to prove and the ramifications against the defendants are too great to overcome in any other way. ii. Conspiracies are hard to prove and court needs to have all the evidence. l. DISSENT: i. There must be an agency relationship; belief that evidence concerning s authority isnt admissible unless theres other evidence to support it. ii. We should allow judge the ability to look at everything but the statement in question. iii. ACN are pretty clear in saying we ought to keep this exception w/in the constrictions outlined at common law. iv. At minimum, we need to show theyre involved in a conspiracy before we admit these statements, and we shouldnt be relying on these statements to show conspiracy. v. POLICY REASONS: 1. These statements arent really all that reliable to begin with, and theyre very difficult for defendant to combat. 2. Desire to avoid bootstrapping a. Bootstrapping circular reasoning b. Need statement in order to show you need statement c. Only let statement in if a conspiracy existed. Determine if conspiracy existed by looking at the statement. v. PROBLEM 4-H (p. 225) -41-

Downloaded From 1. Facts: A/B/C/C decide to conspire together to import cocaine. D approaches A and set up fake drug deal. Other DEA agents spot C and let her go. D arrests A, B and Carol. 2. Roles: a. Bfly to Colombia b. Carolfly to Colombia c. Aline up customers; fronted money for trip d. Conniedrives to airport e. Dworks for DEA 3. Your party is always going to be the person against who statement is being offered. 4. Declarant is NOT the person making the in-court statement, but rather the person who made the out-of-court statement were trying to introduce into evidence. 5. Testimony by Connie describing what Bud told her in the bar (Arlen fronted us the $$) a. Can they use it against Bud? YES i. Declarant=Bud, Party=Bud ii. 801(d)(2)(A)Individual admissions. b. Can they use it against Arlen? Probably NOT. i. Declarant=Bud, Party=Arlen ii. Bud and Arlen have conspired. 1. Judge must find by a preponderance of the evidence that there was a conspiracy between the two men. 2. Judge can rely on statement Arlen fronted us the buy money. 3. A telling D that he knows B that B is going to get the cocaine. 4. Arlen went to visit Bud. 5. Carols statement to police (Bs going to buy the drugs) 6. Doesnt matter that any of this stuff is inadmissible; judge can use anything in making decision. iii. Statement made during course of conspiracy. 1. The conspiracy was still ongoing. 2. They were on their way to buy the drugs. iv. Statement made in furtherance of the conspiracy 1. Seems more like a comment then a required statement furthering the conspiracy. 2. Context of statementmade in the presence of a casual friend at the bar; makes it seem like its NOT furthering the conspiracy. 3. Issue as whether it meets the furtherance requirement. a. Was this just casual conversation in a bar? OR b. Was it actually furthering the conspiracy b/c it was necessary to keep Carol involved. 6. Testimony by Don describing what Arlen said (Buds gone south to make the buy) -42-

Downloaded From a. Declarant=Arlen; Party=Bud b. Bud and Arlen have conspired. Yes, for reasons above. c. Statement made during course of conspiracy i. The conspiracy was still ongoing. ii. This statement was made before the drugs were sold and while they were getting purchased. d. Statement made in furtherance of the conspiracy i. Whole purpose of the conversation is to sell D to buy drugs. ii. The statement was made to further the conspiracy b/c selling drugs WAS the conspiracy. iii. This is a class coconspirator statement. iv. Does it matter that As statement to the buyer actually thwarted the conspiracy (b/c D was an undercover cop)? No. A reasonably believed he was furthering the conspiracy, and thats enough. e. YES 7. Testimony by the DEA agent describing what Carol told him (Bud made the buy) a. Declarant=Carol; Party=Bud b. Bud and Carol have conspired. Yes, use same facts as above. c. Statement NOT made during course of conspiracy (made only after she was caught and read her rights.) d. A post-arrest statement can NOT fit w/in this hearsay exception. i. Those statements arent made during the course and in furtherance of the conspiracy. ii. Prosecutor cant use Cs statement against B/A. e. Can they use Cs statement against C? i. C/B/A are all being jointly tried. ii. The fact that C knows B made the buy shows she was involved in the conspiracy. iii. Bruton says you cant use Carols statement in this situation b/c it violates Buds confrontation rights b/c limiting instruction doesnt work. f. NO vi. Can a prosecutor rely on the statement itself to prove a conspiracy? 1. This question has been left open by the Supreme Court. Lower courts have said no. 2. Prosecutor doesnt have to charge conspiracy in order to use conspirator exception (but thats what happens almost all the time in real world.)


Downloaded From February 4, 2005 I. Hearsay Exceptions803 General i. Three rules: 1. 803 (all apply whether declarant is available as a witness; out-ofcourt statement is so reliable that we dont really have a preference between having the out-of-court statement or in-court testimony.) 2. 804 (available only if you first establish that the witness is unavailable to testify) 3. 807 (catch-all exception, if your hearsay is super-reliable, but somehow didnt fall w/in standard exception, well let you use it anyway.) ii. Requirements are designed to ensure reliability. iii. If requirements are met, the statement is sufficiently reliable to use at trial, and our hearsay concerns are set aside. iv. Under appropriate circumstances, a hearsay statement may possess circumstantial guarantees of trustworthiness to justify nonproduction of the declarant even though he might be available. v. Declarant must have personal knowledge vi. The judge decides whether the requirements of the rule have been met and he can look at the statements themselves. Standard=preponderance. vii. Even hearsay w/in an exception can be barred if theres another reason that justifies exclusion. viii. If hearsay meets hearsay exception, its not longer unfairly prejudicial on the basis that its unreliable b/c it was made out of court and the declarant isnt subject to cross. b. Present Sense Impressions- -803(1) i. RULE : a statement describing or explaining an event/condition made while declarant was perceiving the event/condiction or immediately thereafter. ii. Rationale: 1. Substantial contemporaneity of event/statement negative the likelihood of deliberate or conscious misrepresentation. 2. These statements are more reliable a. Reduced risk of faulty memory (saying as you see it/immediately thereafter). b. *Less risk of insincerity (if you dont have time to think about it, they dont have a chance to lie, so theyre more likely to tell the truth). c. May not be entirely true however (people can lie on-thespot) iii. In most cases, precise contemporaneity is not possible, and a slight lapse is allowable. iv. Subject matter is limited to a description or explanation of event/condition v. Elements: 1. Statement must describe/explain an event or condition 2. Statement must have been made while declarant was perceiving the event or immediately thereafter. vi. HYPO: friends saw drunken walking; Mike gets there and he sees that is trying to rape Lucy. Mike gets back to Steve and says is trying to rape Lucy. Does this qualify? 1. Does statement describe event? Yes, Mike is describing the assault.


Downloaded From 2. Was statement made while Mike was perceiving event/immediately afterwards? Yes, it happened right next to their house and he went and told Steve immediately. vii. HYPO: what if Mike didnt say anything until he got to police office 10 minutes later? 1. Still describing the assault. 2. Because you can make up a lie in 10 minutes, this probably doesnt qualify. 3. You have to show judge that there was no time for brain to kick in and make up a lie. 4. Is there another way to get this in? Excited Utterances. Those 10 minutes are very stressful for Mike. viii. HYPO: Mike says to Steve is so mean and rough when he cant find his girlfriend. 1. Doesnt qualify for this exception. 2. This statement doesnt sufficiently describe the event/condition. ix. Nuttall v. Reading Co [Widow sues RR company after her husband was allegedly called him to work despite the fact he was sick.] 1. Evidence: a. Two affidavits (one from fireman OHara; one from Conductor Snyder) b. Widows testimony of phone conversation w/yardmaster c. Testimony by fireman about remarks made in trainyard. 2. Court focuses on second piece of evidence a. Widow heard Ns statements at the same time that N heard Ms statements b. Ns characterization of the statements of his boss were made substantially at the time the event they described was perceived. c. Contemporaneousness lessens the likelihood of conscious misrepresentation. 3. Phone call/arrival of new person in a room can both be events under 803(1) 4. Elements: a. Statement must describe/explain an event or condition b. Statement must have been made while declarant was perceiving the event or immediately thereafter. 5. HOLDING: admit the phone conversation c. Excited Utterances803(2) i. Rulea statement relating to a startling event/condition made while the declarant was under the stress of excitement caused by the event/condition ii. Rationale: 1. Circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 2. Event has so dominated the persons mind that they lose their ability to fabricate a lie. 3. May not be so reliable however (if youre so stressed that you cant work your mind anymore, doesnt this increase the risk of misperception and cause you to misstate?) iii. Problempeople faced w/horrific events tend to elaborate. May make statements less reliable. iv. Participation is not required. One may be startled by an event in which hes not an actor. v. Proof of startling event may/may not be required. -45-

Downloaded From vi. Subject matter need only relate to startling event/condition vii. Critics: excitement impairs accuracy of observation as well as eliminating conscious fabrication viii. Elements: 1. Declarant must have seen a startling event. 2. Statement must have been made while declarant was under the stress of excitement from the event/condition 3. Statement must relate to startling event/condition (broad condition) ix. ASK: did the declarant have the capacity to reflect? x. United States v. Iron Shell [ convicted w/intent to rape 6-year-old girl. Prosecution introduces into evidence the POs interview w/Lucy that was taken 45 minutes after assault.] 1. ISSUE: whether Lucys statements 45 minutes later were admissible under the 803(2) hearsay exception. 2. Elements: a. Declarant must have seen a startling event. Yes, the assault itself easily qualifies b. Statement must have been made while declarant was under the stress of excitement from the event/condition. i. Was Lucy still under stress of assault when she made her statement? 1. --no, time lapse had been too long; Lucy wasnt crying; Lucy was prompted to answer (not forced out by excitement). 2. hugely traumatic; her eyes are still red, leaves in her hair; shes only 9 years old ii. Factors to Consider in determining whether excitement still exists: 1. Length of time between event and statement a. Closer it is in time to startling eventmore stress 2. Whether statement was made in response to inquiry. a. Person just blurts it outmore stress b. Made in response to inquiryless stress c. Neutrality of inquiry is important. 3. Ds age, physical condition, mental condition a. Youngermore stress; stress will last longer 4. Characteristics of the event. a. More traumatic the eventmore stress 5. Subject matter of the statement a. Closer statement relates to what happensmore likely the statement was produced by the stress. b. Kind of sketchy element 6. Declarants demeanor -46-

Downloaded From a. More upset declarant appears more stress c. Statement must relate to startling event/condition (broad condition). Yes, shes describing here what happened. 3. HYPO: what if on the way to the hospital, Mae Small Bear was asking her questions about the various activities and Lucy tells Mae Small Bear. THEN she goes to the PO. a. Does this change things? i. Yes, more susceptible to influence. ii. Yes, her capacity for reflection is no longer still. Shes been answering questions on this topic already. b. This is a heavily fact-based inquiry. 4. HOLDING: POs statement is admissible a. Lucy was stressed and fearful b. Officer only asked one question. c. Lapse of 1 hour doesnt remove evidence (especially when D is a kid) 803(1) Inflexible (statement must be made during/immediately thereafter). Narrower. Statement must describe/explain event. Verbal picture. Narrower Any event will do. Broader. Immediacy 803(2) Flexible (depends on the duration of the excitement). Broader. Statement need only relate to the event. Broader Event must be startling. Narrower Excitement

Timing Subject Matter of Statement Type of Event The Key

n. Practice Problem: i. Facts chaged w/assault and battery. Neighbor testifies that on night in question, she saw Victim crying and when she approached her a few minutes later, Victim sobbed: Dom just shoved me up against the wall. ii. Steps of Analysis: 1. Objection: HEARSAY a. State rule. Out of court statement offered to prove truth of matter asserted. b. Apply rule: explain how statement is offered for its truth. Victims statement he shoved me against wall is being used to prove that shoved her against wall. 2. Response: PRESENT SENSE IMPRESSION a. State rule. Statement describing/explaining event/condition made while declarant was perceiving the event/condition or immediately thereafter. b. Apply rule: statement relates to the event of assault; in a couple of minutes, someone could make up a lie, so this could not meet prong #2. c. Defense will probably win on this response. 3. Response: EXCITED UTTERANCE a. State rule. Statement relating to a startling event/condition made while D was under stress of excitement caused by event/condition. b. Apply rule: startling event was assault; statement related to the event b/c the victim was describing the assault; D -47-

Downloaded From made statement while under stress of excitement (-shes still crying, assault is a very traumatic event, statement made close to time of event; --time lapse is unclear; responding to inquiry) iii. CLASS NOTES 1. state rule 2. apply rule a. explain how the statement is offered for its truth b. explain how each requirement is or is not met on the facts 3. look for exceptions


Downloaded From February 8, 2005 II. Hearsay Exceptions803 State of Mind803(3) xi. Rationale: 1. Theres not much risk of misperception if youre talking about your own state of mind. 2. Not must risk of faulty memory b/c the statement must be made contemporaneously. 3. Still a significant risk of misstatement and insincerity b/c people lie about how they feel. xii. Requirements: 1. Statement must be of declarants then-existing state of mind, emotion, sensation or physical condition. a. i.e. intent, plan, design, motive, mental feelings, pain, bodily health, etc) 2. The statement must not be offered to prove a fact remembered or believed. 3. CAVEAT: anything that declarant says concerning his will falls w/in 803(3). xiii. Applications: 1. Statements of then-existing physical condition (i.e. my head hurts, etc) a. Declarants statements must describe how he feels. b. Its almost next to impossible to show by other testimony. c. Must be a then-existing physical condition (ex. last week, I felt chest pain doesnt work; Im feeling chest pain right now does work) 2. Statements of then-existing mental/emotional condition a. Applies only to statements that describe declarants present mental state. b. Exception only allows statement as evidence of declarants SOM (exception doesnt make factual assertions admissible for their truth.) c. Elements: i. Statement indicates something about declarants state of mind AND ii. State of mind is relevant to the case d. Often people speak in statement that include both declarants state of mind (admissible) AND contain facts (inadmissible) e. Presents a 403 problem b/c statement may be admissible to show declarants state of mind, but its inadmissible for other things. f. Problem 4-J (p. 243) i. Facts: Quade found dead in a park. Prosecution thinks that was shaking down and ultimately killed Quade for protection money. ii. Extortion? YES; admissible. 1. Obtaining property w/ consent by the wrongful use of fear. 2. HYPO: Quade says I am afraid of Neff. a. This can be used to show fear. b. Shows Quade is afraid and fear is an element of crime. c. Easily admissible. -49-

Downloaded From 3. EvidenceNeff says hell kill my if I dont pay protection. Ive already paid him $5,000. 4. Statement indicates something about declarants state of mind. a. Quades statement is a factual statement, but also indicates something relevant about Qs state of mind. b. Facts indicate his state of mind. He never comes out and says Im afraid of Neff. c. Indicates Qs fear. 5. State of mind is relevant to case. a. Victims fear is an element in extortion case 6. Proper/Improper Use a. Properto show Qs fear. b. Improperto show that Neff had in fact threatened to kill Q and that Q had in fact paid Neff $5,000 (these are facts Q remembered/and believed and are inadmissible) c. Balance under 403: i. Probative Valuepretty reliable, very strongly indicates fear; need is high since fear is element ii. Risk of Prejudicepretty high prejudice that jury will use facts to prove things occurred iii. When both are pretty high, judge will admit it. iii. Murder? NO; inadmissible. 1. EvidenceNeff says hell kill me if I dont pay protection. Ive already paid him $5,000 2. Statement indicates something about declarants state of mind. a. Qs statement still shows fear. 3. State of mind is relevant to case a. Fear is no longer an element of the case. b. Does it matter that Q was afraid if N? Yes. If Q feared N, it makes it somewhat more likely that N was killer. 4. Proper/Improper Use a. Properto show Qs fear. b. Improperto show that Neff had in fact threatened to kill Q and that Q had in fact paid Neff $5,000 (these are facts Q -50-

Downloaded From remembered/and believed and are inadmissible) c. Balance under 403: i. Probative Valuefear is no longer a central issue of the case; fear on tangentially supports our case; probative value has decreased a lot ii. Risk of Prejudicepretty high prejudice that jury will use facts to prove things occurred. iv. Neffs claim of self-defense? 1. Declarants state of mind becomes more relevant w/suicides and claims of selfdefense. 2. Here, if you know declarant was afraid of the other guy, its less likely that he attacked him. 803(3) (1) Statement must indicate something about Ds state of mind AND (2) Ds statement of mind must be relevant to case Circumstantial Evidence of SOM (1) statement must indicate something about Ds state of mind AND (2) Ds state of mind must be relevant to case AND (3) Statement must help make this relevant point regardless of whether its true.

1. Qs statement of fear must be true for it to be useful to prosecution, which means you cant rely on non-hearsay category and instead must rely on 803(3). 3. Statements used to prove intent of subsequent conduct a. Dangers: i. Person may be lying. ii. Something else intervened to cause plans to change. b. Mutual Life Insurance v. Hillmon [ claimed that her husband was killed in an accidental shooting and seeks his insurance policy. s claim body was husbands traveling companion and is guilty of fraud.] i. EvidenceWalters letters to his fianc back home. I plan to go to Colorado w/Hillmon ii. ISSUE: whether the traveling companions letters are admissible for the purpose of establishing his intent to accompany the husband. iii. RULE: a persons current intent to do something is admissible to show that the intended act was done.


Downloaded From iv. The proof of Walters intent to travel w/Hillman makes it more probable than not that he actually went with Hillman. v. Does statement indicate something about Ws state of mind? 1. Yes. Intent qualifies as a state of mind. 2. This statement indicates Ws intent to go to Colorado w/H. vi. Is Ws state of mind relevant to the case? 1. Ws intent to go makes it somewhat more probable that he did in fact go. 2. Doesnt matter that something might have interfered w/Ws plans. Its still somewhat more probable than it otherwise might have been. vii. HOLDING: admit letters. viii. Implies that doctrine extends to actions of another person. 1. Persons statement of intent to do something w/another person can be used to show what the other person did. 2. Can imply not only that W went, but that W went with Hillman. c. United States v. Pheaster [16-year-old Larry kidnapped and held for ransom after he goes to meet Angelo in an alley for some pot.] i. EvidenceFrancine and Dougs description of evening/man; Im going to meet Angelo in the parking lot ii. Can prosecution use Ls statement as proof that L intended to go to parking lot and that he did go to the parking lot? 1. Yes, that is the basic holding of Hillmon. iii. Can the prosecutor use Ls statement to prove what Angelo did? 1. What L implied about As intent has nothing to do w/Ls SOM. 2. Seems to be outside the bounds of 803(3). iv. Problem Hillmon seems to suggest this is okay. v. Trier of fact here would have to infer probability of act by both declarant (Larry) and other person (Angelo) vi. Legislative History is really screwed up. 1. Rules want to adopt Hillman 2. Rules also state that they want to use Hillman to only prove Ds conduct and NOT someone elses vii. Court basically throws up its hands and says we can t figure it out, and we cant say that the lower courts were wrong. viii. HOLDING: evidence was admissible ix. Not a universally-held holding. d. CURRENT LAW:


Downloaded From i. For a statement describing what the speaker intends to do w/another, it can be admitted to prove what both did IF: 1. There is corroborative evidence that brings the two together as anticipated by the statement (i.e. saw Angelo in parking lot) OR 2. s need for statement is great (i.e. victim is dead/missing) ii. Problem? Court is letting in unreliable evidence when the stakes are highest for (b/c most of these cases are murder/kidnapping cases) 4. Facts about Declarant Will a. 803(3) includes statements about a fact remembered/believed when such statements relate to declarants will. b. The effect of this is that basically anything a person says about his/her will fits w/in this hearsay exception.


Downloaded From February 9, 2005 I. Hearsay Exceptions (cont.) a. Statements for Purposes of Medical Diagnosis/Treatment803(4) i. Rationale: desire for proper treatment outweighs risk of patient lying. Low risk of insincerity. ii. Elements: 1. Statement must be made for purposes of medical diagnosis or treatment a. ASK: was declarants motive consistent w/promoting diagnosis or treatment. 2. Statement must describe: a. Medical history b. Past/present symptoms, pain or sensations OR c. Inception or cause of disease or injury 3. Statement must be reasonably pertinent to the diagnosis or treatment. a. ASK: did physician reasonably rely on statement in diagnosis/treatment? iii. Blake v. State [Victim of alleged sexual abuse was taken to hospital where doctor examined here. Victim told doctor that her stepfather () had forced her to have sexual relations w/him.] 1. s Claimtestimony shouldnt have been admitted b/c it was hearsay. 2. Statements admitting fault/identity are NOT admissible. Theres an exception, however, for kids who are victims of sex abuse. 3. Statement must be made for purposes of medical diagnosis or treatment a. Victim was examined as a result of allegation that she was abused. b. Girl was trying to get the proper treatment b/c she was told she had to answer those questions in order to get that treatment. c. Effective treatment results only when Dr knows abusers identity 4. Statement describes medical history, symptoms, inception/cause of disease or injury a. The fact that she was raped DOES describe cause of injury. b. The fact that it was her stepfather might help describe emotional injuries the victim suffered. c. If Blakes identity was revealed and doctors knew Blake had STD, that would help identify victims physical injuries. 5. Content of statement was reasonably relied on by doctor in treatment/diagnosis a. Statements made were consistent w/purpose of Drs interaction w/victim b. Low threshold requirement; minimal evidence will satisfy. 6. HOLDING: doctors testimony is admissible. iv. Commonwealth v. Smith [Girl identified her father as the one who put her in bathtub containing scalding hot water.] 1. Girls Statement: I was burned by hot water in a bathtub a. Admissible. Classic 803(4) example. b. The fact that she was burned by hot water will help with treatment. -54-

Downloaded From 2. Girls Statement: I was burned by hot water in bathtub, when my dad put me in there a. NOT admissible b. Treatment of burns isnt difference depending on whether stranger inflicted burns or close relative did. c. Argument can be made that this is admissible in order to treat the psychological damage that will result from having her dad (someone she trusts) injure her. v. Other Notes 1. No requirement of contemporaneously (statement couldve been made 3 years ago) 2. Doesnt matter if doctor is seeing the patient to diagnose or to treat (it mattered at CL) a. Most courts at CL excluded the diagnosis prong and only allowed for treatment. b. When would it just be diagnosis (w/o treatment)? i. Compelled by court through R.35 to get medical diagnosis. ii. Purposes of later litigation 1. Desire to use doctors as expert witnesses later on 2. Might increase the risk of insincerity (lie to doctor in order to get them to say what you want them to at trial) 3. Courts are more lenient w/the no fault rule in child abuse cases. a. Some courts are still reluctant to be more lenient. b. As soon as you determine that treatment of emotional injuries is also admissible, that pretty much opens the floodgates for everything. 4. Statement doesnt have to be made to a doctor. a. Only has to be given for medical diagnosis/treatment. b. Normally, a nurse, EMT, orderly, etc qualify. c. Ex) girls statement to her gramma would be admissible so long as its used to facilitate medical diagnosis or treatment. 5. Statement doesnt have to be made by patient itself a. Usually occurs w/small children or unconscious people. b. All elements are still present, even if a hospital/physician never enter picture. c. Ex) Mother says baby threw up 17 times. 6. Statements attributing fault dont qualify. Statements of causation do qualify. a. Ex) An automobile struck me IS admissible. b. Ex) The car ran the red light is NOT admissible. b. Past Recollection Recorded803(5) i. Only applies when declarant is testifying as a witness and cant remember something. ii. Rationale: less risk of fault memory. The requirements give rise to inherent reliability. iii. Requirements: 1. Witness (D) must lack present recollection a. If we dont make this a requirement, then it makes it very easy to get out-of-court statements into evidence. b. Encourages lawyers to have their witnesses write their statements down. -55-

Downloaded From We would prefer to have the witness testify live, rather than have the jury see a prepared statement. 2. Statement must accurately reflect knowledge witness once had. a. I would not have signed my prior statement if it werent true is NOT enough to satisfy this requirement. 3. Witness must have made or adopted the statement. a. Embraces acts of two persons (one person dictating, one writing) if both testify at trial. 4. Witness must have done so when matter was fresh in his mind. a. Very easy standard to meet. iv. Ohio v. Scott [ convicted of multiple shootings. D wrote statement of conversation w/ and gave to PO.] 1. This isnt being used to jog her memory, but instead as evidence that shot the guy. 2. HOLDING: evidence is admissible. a. Witness must lack present recollection i. I cant remember. . . ii. My memory then was better than it is now iii. Statements dont really show that she has no present memory of event. iv. Prosecutor probably hesitant to push her b/c he was afraid she would fudge it to save her boyfriend. v. Typically, more is required to satisfy this requirement. b. Statement must accurately reflect knowledge witness once had i. Did you make this statement according to what your knowledge was at the time? YES ii. Was statement true at time you made it? YES c. Witness must have made or adopted the statement i. Witness signed document ii. Witness wrote in own handwriting. d. Witness must have done so when matter was fresh in his mind i. Witness wrote it that same day. ii. Very lenient standard. 3. DISSENT: a. Statement wasnt made in presence of b. Fear that statement will go into the deliberation room and be given undue weight by the jury. c. Written statement gains an excessive value d. D didnt testify that he lacked present memory of the events. v. Other Notes: 1. Must have witness be available and witness MUST testify (these requirements are anomalies w/in hearsay exceptions of 803). 2. A written statement cant be read to the jury, unless its read by adverse party. a. Jury cant take letter w/them to the jury room. b. Fear that jury will give undue influence to the written statement. 3. Difference between past recollection recorded and refreshing recollection (w/the latter, witness just refreshes memory and then testifies based on their own memory) c. Multiple Hearsay805 -56c.

Downloaded From i. Comes into play w/803(5) b/c 803(5) is interpreted to cover situations involving multiple s (i.e. employer dictating to secretary, information being passed along chain of persons) ii. Applies when you have two out-of-court statements. iii. If hearsay is included w/in hearsay, then each level must qualify under an exemption/exception 1. Separate the statements 2. Find an exception for each. iv. If you cant qualify one of the statements, then that portion of statement cant be used. v. Ex) Randy told me he shot somebody 1. Randys StatementI shot a guy (801(d)(2)(A) Individual Party Admission) 2. Carols StatementRandy told me he shot a guy (803(5) Past Recollection Recorded) 3. Meets the requirement of 803(5), so we can admit it


Downloaded From February 11, 2005 II. Hearsay Exceptions (cont.) a. Business Records803(6) i. Broad, reaches an enormous amount of business records. ii. Rationale: businesses rely on accurate and reliable records for their wellbeing; low risk of insincerity. iii. Requirements: 1. Record must be from a regularly conducted business activity and a regularly-kept record. a. Covers self-employment and illegal enterprises b. Covers churches, schools, unions and political organizations. c. It must be the regular practice of the business to keep that type of record. d. Look at on the company level. 2. All participants in gathering/recording/furnishing the information must be under a business duty to do so. a. Business Dutymust be part of that persons job to do this. b. All persons must be acting in the regular course of business. c. Doing in the course of business gives it accuracy. d. Look at on the individual level. 3. Source of information must have personal knowledge a. No one else in the chain needs to have personal knowledge. b. Generally, all witnesses have to have personal knowledge. This is a semi-exception to that, b/c only the source here needs the personal knowledge. 4. Information must be gathered or recorded at or near the time of the event (flexible) 5. Need adequate foundation testimony or an adequate certification. a. Doesnt need to be the source (but can be if they have enough knowledge that other four requirements have been met.) b. Source just needs to know enough about the business to show how this type of record was made to assure that the other requirements have been met. c. Use either testimony of custodian of records of affidavit by that person identifying that all of the other requirements have been met. 6. CAVEAT: source/circumstances of preparation must not indicate lack of trustworthiness a. Judge can exclude an otherwise satisfactory business record on grounds that it is otherwise untrustworthy. b. Not so much an element; instead just gives judge extra discreation. iv. HANDOUT: 1. Evidence: This 37-year-old man had a hernia repair at an outside hospital 3 months ago. Mr. Plaintiff reports that he felt no pain until 2 1/2 months after the original operation, when he was doing weightlifting exercises. A recurrence of the hernia is apparent, and requires surgical repair. 2. Can this be introduced? NO a. Who are the participants? Patient, Dr. Sharp, and someone in Dr. Sharps office who typed it up. -58-

Downloaded From b. Plaintiff served as one of the participants, and he doesnt have business duty. 3. How can this be introduced? Multiple Hearsay (805) a. Patients statement to Dr. Sharp: I felt no pain until weightlifting. i. Use 803(4) 1. Must be made for purposes of medical diagnosis or treatment. 2. Statement must describe: a. Medical history b. Past/present symptoms, pain or sensations OR c. Inception or cause of disease or injury 3. Must be reasonably pertinent to the diagnosis or treatment. ii. Could also bring in as individual admission (801(d)(2)(a)). b. Dr Sharps statement: Patient reports that he felt no pain. . . 803(6) i. Record must be from a regularly conducted business activity and a regularly-kept record. Business = doctors office. A patient record is the kind of record kept by doctors offices. ii. All participants in gathering/recording/furnishing the information must be under a business duty to do so. Participants = Dr. Sharp and people in office who typed it up. Why isnt patient a participant any more? Because weve already checked for reliability of his statement. Both Dr and staff had business duty. iii. Source of information must have personal knowledge. Source= Dr. Sharp. He didnt see the weightlifting, but he had PK of the patient telling him this information. iv. Information must be gathered or recorded at or near the time of the event (flexible). The record was made next morning. Okay. v. Need adequate foundation testimony or an adequate certification. Office manager should be able to describe how patient records are prepared. Affidavit would suffice here too. vi. CAVEAT: source/circumstances of preparation must not indicate lack of trustworthiness. No, doctor is a trustworthy source. v. Petrocelli v. Gallison [Patient sought to prove that doctor severed his nerve through notations in a medical record that describe the nerve as severed and mentioned patients pain.] 1. RULE: any report of acts, events, conditions, opinions or diagnoses, made at or near the time by or from information transmitted by a person w/knowledge if kept in the course of regular business activity, should be admitted. 2. HOLDING: statements could NOT be admitted as business records under 803(6).


Downloaded From a. Its not possible to tell if statements were actually opinions/diagnoses of reporting physicians or statements made by patient in relaying his injuries. b. No offer of corroborative evidence that statements were professional opinions. c. Jury couldve misconstrued the statement as definitive opinion testimony on the critical issue of whether the nerve had been severed. d. Missing requirement #3. Guesswork and speculation needed to divine source. 3. Might satisfy 803(4), but didnt claim they were his admissions of medical condition. vi. Norcon v. Kotowski [ was employed to assist w/the clean-up of Exxon Valdez oil spill. was subjected to sexual harassment and retaliatory discharge by her supervisor.] 1. Evidencememo from 3rd party investigator to superior concerning P and Ks activities 2. Who participated in making the record? a. First Set i. Stampley (Norton employee; Posehns roommate) ii. Ford (Purcell investigator; author of report) b. Second Set i. Coyle (Norton employee; Posehns roommate) ii. Flesching (Purcell investigator) iii. Ford (Purcell investigator; author of report) 3. Should Kotowski be able to introduce report under 803(6)? NO a. #2 is a problematic here. All persons here dont have business duty here. b. Record must be from a regularly conducted business activity and a regularly-kept record. Business = Purcell. This record is a regularly kept record for an investigation for business purposes. c. All participants in gathering/recording/furnishing the information must be under a business duty to do so. Participants = Stampley, Ford, Coyle, Flesching. Stamply and Coyle work for Norton, NOT Purcell. No duty to Purcell. This requirement isnt met. 4. Court treated it as a multiple hearsay problem and qualified statements separately. a. Stampleys/Coyles Statement: Poeshn was giving favors for sex i. Employee Admission 801(d)(2)(d) ii. Must be offered against the party. Statements made against Norton. iii. Statement must be made by partys agent/servant. Statement was made while these guys worked for Norton. iv. Statement must be concerning matter w/in scope of declarants agency/employment. 1. Coylehe was a supervisor, so this qualifies. 2. Stampleyw/in scope of duties b/c Norton expanded scope of duties to incorporate cooperation w/investigators. 3. Authorized AdmissionsNorton told employees to cooperate. -60-

Downloaded From v. Statement must be made during existence of relationship (i.e. while declarant was still employed. Norton and Stampley were employed by Norton at time of admissions. b. Fords Report: Stampley & Coyle says. . . (803(6) i. Once you push off Stampley/Coyle, its easy to meet 803(6). 5. HOLDING: court admits the evidence under 801(d)(2) a. C/S were agents speaking at time when they were employed b. Matter stated were matters which job required them to report. 6. Court invoked business records exemption as basis for admitting the Ford report to prove what was said by Norcon employees 7. Court invoked admissions doctrine as basis to take those statements as proof of what they assert (that P engaged in misconduct.) vii. Internal Accident Reports 1. HYPO: Nortons own internal investigation report states: theres no evidence Posehn made improper sexual advances on any employee. a. What should Kotowski argue to keep report from being admitted under 803(6)? i. This is untrustworthy b/c it was made in preparation for litigation. ii. The business has a strong motive to lie to cover their asses. b. This is outside the ordinary scope of cleaning up oil spills. 2. Many modern cases bar internal accident reports (Parmer: per se rule against use) 3. Some courts look at specific facts of case to determine if its trustworthy. a. Generally, documents prepared in anticipation of litigation are untrustworthy. b. ASK: was the report calculated for use in court OR for use in business?


Downloaded From February 15, 2005 III. Hearsay Exceptions (cont.) a. Public Records803(8) i. Rationale: 1) need-based; there are so many records, officer just might not remember; 2) perform duties faithfully and accurately; 3) not take away from work to testify ii. (A) Office/Agency Requirements: 1. Must be in a record, report, statement or data compilation of a public office or agency 2. Record must set forth the activities of the office/agency a. Really mundane stuff b. Ex) transcripts from proceedings, notices issued, receipts 3. All participants in furnishing/recording the information must have a public duty to do so 4. Source of information must have personal knowledge iii. (B) Matters Observed by Public Officials Requirements: 1. Must be in a record, report statement, or data compilation of a public officer or agency 2. Record must set forth matters observed 3. These matters must have been observed pursuant to a public duty to report them a. Must be part of govt employees job b. Equivalent of business duty requirement of 803(6). 4. USE RESTRICTION: must exclude if its a criminal case and matter was observed by law enforcement personnel. iv. (C) Factual Findings from Official Investigation Requirements: 1. Must be in a record, report, statement or data compilation of a public office or agency 2. Record must set forth factual findings resulting from an official investigation 3. Source of info of circumstances of preparation cant indicate a lack of trustworthiness a. Factors of Trustworthiness i. Timeliness of investigation ii. Special skills/expertise of officer iii. Whether a hearing was held (and level which it was conducted) iv. Motivational problems (any possible bias) b. This is a requirement; must show every time. c. Cases argue that this trustworthy requirement applies only to c; some scholars believe it should apply to all three. In class, apply only to c. 4. USE RESTRICTION: must exclude if its offered by govt, against the , in a criminal case USE RESTRICTION CHART 803(8)(b) Criminal Cases ONLY Applies to prosecution and defense Law enforcement personnel only 803(8)(c) Criminal Cases ONLY Only applies to evidence offered by the prosecution. Applies regardless of who made the factual finding; Any public official

Criminal v Civil Who is barred? Who is covered?

iv. Use Exception Applications: -62-

Downloaded From 1. A police report itself cannot be admitted, but the policemans testifying about it can be admitted b/c he can be cross-examined and b/c has right to confront witness. 2. Lab report w/BAC of driver depends on whether lab guy was a law enforcement official. 3. Truck driver said he probably ran a red light. Court said didnt qualify b/c truck driver wasnt a public official so statements didnt qualify. No duty for him to talk about it. 4. If use exception applies, can court try and get this in under another exception? a. In Oates, cant bring this in under any exception (including catch-all) b. Congress meant this to serve as an exclusionary rule. You cant bring it in under another exception. c. If its barred by the use restriction, you cannot bring it to trial. 5. Can you bring it in under past recollection recorded exception (803(5))? a. Some courts say yes. b. Whats so special about this? Evidence is handed to declarant. If PO is testifying as witness, can crossexam him. c. Some say that because concern about confrontation is satisfied, you can bring the report in under 803(5) if he cant remember specifics well enough. v. Baker v. Elcona Homes Corp [Fatal car accident involved a car of high schoolers and semi truck. s sue for negligence. Issue of who had right of way (who had red light?)] 1. Truck driver blinded by the sunlight. No eye witness testimony. 2. Evidencepolice accident report a. Description of the scene803(8)(b) i. Was the evidence in a report of a public office? Yes ii. Did records set forth matters observed? Yes, length of skidmarks, etc. iii. Was this part of Officers job? Yes, this is what he does. Hes an accident reconstructionalist for force. iv. Does use restriction apply? No, this is a civil case, not a criminal case. b. Conclusion that car entered against red light803(8)(c) i. How did officer get the information? Vector analysis of skidmarks, etc., conversation w/truck driver; can rely on inadmissible evidence ii. Was the evidence in a report of a public office? Yes. iii. Did record set forth factual findings resulting from official investigation? 1. This was definitely an official investigation. 2. Factual finding v. Matter of opinion/Conclusory statement 3. Factual findings include factual-based opinions (like here). iv. Does sources indicate a lack of trustworthiness? -63-

Downloaded From 1. Timeliness of investigation. Officer arrived w/in 6 minutes. 2. Special skills of officer. Officer had 28 years experience. Lots of experience in accident reconstruction. 3. Whether a hearing was held. No formal hearing. Cuts the other way, but you dont have to have all factors. Not decisive here. 4. Any possible bias? No sign of improper motive. ii. Does use restriction apply? No, this is a civil case, not a criminal case. c. Slabbachs Statement of Cross-Traffic i. Cant introduce 3rd party statement if person didnt have a public duty. ii. Truck drivers statement cant come in as a public records exception. iii. Must split off and treat as multiple hearsay. iv. Bring it in under prior consistent statement exception d. Both car and semi had driver preoccupation. 3. Why cant this come in under 803(5)? a. PO was never questioned to see if he remembered. b. No showing that PO didnt remember (and this is an element of 803(5)). 4. HYPO: assume driver of car survived and is now being prosecuted for vehicular homicide. Prosecution wants to enter POs report as evidence against him. a. This is now a criminal case. b. Does use restriction apply now? Yes, its a criminal case and its now a matter observed by law enforcement. c. This means you cant use this part of the report against the defendant. d. Why do we have use restriction? i. If PO had died, they couldnt introduce this evidence and they wouldnt have it at all. ii. Confrontation Clause. Defense cant cross-exam and go through things they take issue with. iii. Why limit to law enforcement personnel? POs view themselves as adversaries to . Concerned w/reliability of POs statement. PO have vested interest in seeing this get through to conviction. 5. HYPO: what if report also contained lab report on BAC of driver? This is a separate report filled out by lab technician at the lab. Can you introduce this? a. Does the lab technician work for the govt? Assume here that this is a govt lab. b. Is the lab technician law enforcement personnel so that he is barred by the use restriction? Cases are in conflict on whether BAC technicians are law enforcement personnel. vi. United States v. Oates [ convicted of possession of heroin w/intent to distribute.] 1. Evidenceofficial report and worksheet of chemist who analyzed the substance seized from s co-conspirator. -64-

Downloaded From 2. RULE: in criminal cases, reports of public agencies that set forth factual findings that result from investigations made pursuant to authority cant satisfy standards of any hearsay exception if those reports are sought to be introduced against the . 3. HOLDING: evidence is hearsay and ineligible to qualify for any exception to hearsay rule. 4. Here, chemist serves as law enforcement personnel. a. Worked for law enforcement agency. b. ASK: if not a PO, does the declarant see themselves as aligned w/the police? c. Chemists saw themselves aligned w/customs efforts (saw interests as aligned w/those of the police) 5. Desire to preserve confrontation rights of


Downloaded From February 16, 2005 III. Hearsay Exceptions (cont.) o. Learned Treatises803(18) i. At CL, usable only as impeaching evidence and then only if witness relied on treatise 1. Technical material confuses jurors 2. Materials is too easily wrenched out of context 3. Treatises are inferior to live testimony 4. Technology evolves so quickly that information is likely outdated. ii. Requirements: treatises are admissible if. . . 1. Statement is called to the attention of an expert witness on direct or cross 2. The statement must be in a published treatise, periodical, or pamphlet on arts or sciences (i.e. medicine, history, etc.) 3. Treatise must be established as a reliable authority by the witness, other expert testimony, or judicial notice. iii. Treatises can be read into evidence, but cant be received as exhibits. iv. Ohio doesnt have a rule for learned treatises. IV. 804 Exceptions p. General: i. Must first establish that witness is unavailable to testify. ii. Exceptions in 804 are less good than the exceptions in 803. They are for a less reliable form of hearsay, but are admissible when we really need them. iii. For 803, we would be fine w/using the hearsay (even if witness wants to testify); for 804, we would rather have live testimony. iv. Must use both (a) and (b) in tandem. First satisfy (a) and then show that some exception in (b) is also satisfied. q. Unavailability Requirement804(a) i. Rationale: degrees of preference; rather have live testimony, but if not, rather have hearsay statement than no evidence at all. ii. 5 Categories of Unavailability 1. Claim of Privilege (5th Amendment) 2. Refusal to Testify 3. Lack of Memory 4. Death, illness, infirmity 5. Unavoidable absence (Ds presence cant be obtained at trial by subpoena or other reasonable means) iii. NOTE: proponent cant claim unavailability if he procured the declarants absence to prevent him from testifying (i.e. if I killed declarant, I cant claim unavailability). iv. Question of Admissibility goes to Judge (104(a)) r. Former Testimony804(b)(1) i. Rationale: former testimony is closest thing to live testimony; the testimony was made under oath and subject to cross ii. Wed rather have the live testimony, so well take it if we can get it; however, if we cant get it, well take the next best thing (which is former testimony). iii. 804(b)(1) requires prior chance to cross; 801(d)(1)(A) requires present chance to cross. iv. Requirements: 1. Declarant must be unavailable. 2. Declarant must have testified at proceeding or a deposition 3. Party against whom evidence is now offered must have been: a. A party (criminal case) in a formed proceeding OR -66-

Downloaded From b. A predecessor in interest (civil case) in the former proceeding i. MAJORITY: one who has the same interest/motive ii. MINORITY: must be in a privity relationship (mutual/successive relationship to same right of property) 4. Party/Predecessor must have had opportunity and similar motive to develop the testimony (by direct, cross, or re-direct) v. ASK: 1) What was the former proceeding and who were the parties? 2) What is the current proceeding and who are the parties? vi. Lloyd v. American Export Lines [Altercation between Lloyd Alvarez ectrician on a ship. filed COA against ship alleging negligence and unseaworthiness.] 1. EvidenceL testified at coast guard hearing that A attacked him 2. First proceeding: Coast Guard hearing to revoke Lloyds license. 3. Second proceeding: Alvarez claiming negligence against American Export 4. Was the declarant unavailable? Yes, Lloyd couldnt be found under 804(a)(5) 5. Did declarant testify at proceeding? Yes, Lloyd testified at Coast Guard hearing. 6. Was Alvarez/predecessor in interest a party in the former proceeding? a. Alvarez himself was not a party to former proceeding. i. In a criminal case, youd stop here. ii. In criminal cases, you can only use if Alvarez was a party at former proceeding. Here, the proceeding between Coast Guard and Lloyd. b. Courtyes, b/c there was a community of interest c. Concurrenceno, b/c privity relationship didnt exist. d. Courts are split on how to define predecessor in interest 7. Did party/predecessor have an opportunity and similar motive to develop the testimony? a. Opportunity arose at cross-exam at coast guard hearing. b. Yes, they were both trying to discredit Lloyds version. This is the central issue in both cases. c. As long as opportunity existed, thats good enough. If they dont cross, then youll want to argue that they must not have had a similar motive. d. In criminal cases, you start w/preliminary hearing. At that hearing, prosecution must establish PC to proceed. Pretty easy standard to meet. Prosecution must bring in key witnesses. Defense knows that prosecution is going to win at this early stage. Oftentimes, defense will choose not to cross-exam prosecution witnesses (b/c they dont want to give away strategy). Sometimes prosecution witnesses die/disappear/move, etc. Prosecution will seek to introduce testimony under 804(b) (1). Defense will lose a challenge, b/c they had an opportunity and they had a similar motive. e. Look at particular issue in both trials. Is it substantially similar? 8. Third and fourth prongs of test are extremely similar. Judge in this case pretty much just smooshes them together. -67-

Downloaded From 9. Ex) if earlier proceeding was about whether Lloyd was AWOL that day and Lloyd, to being punished for being AWOL, can show that he was in the hospital. In this situation, there probably wasnt a similar motive. Proving that Lloyd was in a place he shouldnt have been is different than proving Lloyd started the fight. Declarations804(b)(2) Rationale: psychological forces incline a person to truthfulness in view of pending death; Person doesnt want to meet maker w/lie on his lips. Invoked most often in criminal prosecutions, paving way for receipt of dying words of victim identifying as his assailant. Exception embraces only those statements concerning the cause and circumstances of death Problem? Some people lie/make assumptions about how they are about to die. Requirements: 1. Declarant must be unavailable 2. Action must be civil action or a prosecution for homicide a. Cant use in regular criminal actions. b. Dying declarations arent reliable enough for lesser criminal cases. c. s have more at stake w/homicide cases and we try to protect him more (need for it is greater, even though it may be more unreliable.) 3. Declarant must believe that death was imminent a. Usually the critical point. b. Must be convinced youre going to die momentarily. c. Strict requirement; ensures that rationale for rule is met. d. Settled hopeless expectation of death e. Factors of Imminence i. Declarants own statement ii. Nature of wounds iii. What declarant heard from doctor, policeman or other person at scene iv. Doctors opinion. 4. Statement must concern the cause/circumstances of declarants impending death a. Broad requirement b. Ex) description/explanation of accident. HYPO: Joe Johnson hypo. Janet shot husband. Janet indicted for 1st degree murder. Janet contends that it was an accident. EvidenceJoes statement. I hope I dont from this; I shouldve known she was trying to kill me. Joe died on way to hospital. 1. Discuss whether this was hearsay. a. Description of hearsay rule. b. Explain why this is hearsay. This is being used to show that Janet killed Joe. 2. Description of Dying Declaration Exception a. Was declarant unavailable? Yes, he died on way to hospital. b. Was the action a civil action or a prosecution for homicide? Yes, Janet was indicted for 1st degree murder. c. Did the declarant believe death was imminent? i. YESmortal wounds; died on way to hospital. ii. NOI hope I dont die shows its unclear whether death is imminent. -68-

s. Dying i. ii. iii. iv. v.


Downloaded From d. Was the statement concerned w/cause of declarants impending death? Yes, describes how it happened (Janet trying to kill him)


Downloaded From February 18, 2005 V. Hearsay Exceptions (cont). t. Declarations Against Interest804(b)(3) i. Rationale: a person wouldnt make a damaging statement about themselves unless it was true; lessens the risk of insincerity. ii. Requirements: 1. Declarant is unavailable. 2. When made, must be sufficiently against declarants interest such that a reasonable person in Ds position wouldnt have made the statement UNLESS believing it to be true. a. D MUST have understood that it was against his interest at time he said it. b. Against Interest break down statement into small, individual statements and ask was it against declarants self-interest, and if so, how? c. See OPTION TWO analysis below. 3. Interest at stake must be one listed in the rule. a. Pecuniary ($) /proprietary (property) interests, civil/criminal liability, undermines Ds claim against another b. Doesnt cover statements that are humiliating and disgraceful, but dont subject the declarant to liability. 4. Corroboration requirement. a. Only applies in some criminal cases. b. If the statement inculpates the D and exculpates the , the corroborating circumstances must clearly indicate the trustworthiness of statement. c. Rationale: accused will often lie to keep his co-conspirator out of trouble. d. Proposed rule change. Rule is kind of limbo about this right now. e. Drafters originally thought it would be used by the (using the confession of someone else to show that that person was involved and not ). f. Must show evidence that supports the facts described in the statement OR evidence that supports declarants credibility. iii. Williamson v. United States [Harris driving erratically. Pulled over and found cocaine. Post-arrest confession incriminates both himself and the other co-.] 1. EvidenceHarris confesses to receiving/transporting drugs, but implicates Williamson as drugs owner. 2. What if the court wants to introduce this against Harris? Use individual admission. 3. Can this be a co-conspirator statement? a. NO, not during course or in furtherance of conspiracy b/c it was made after he was stopped and arrested. b. Post-arrest statement has to be admitted under statements against interest. 4. ISSUE: whether statement at issue was sufficiently against the declarants penal interest 5. Examination of 804(b)(3) a. Broadadmits broader narrative that houses selfinculpatory statements. b. Narrowonly those remarks w/in a confession that are individually self-inculpatory are covered. -70-

Downloaded From 6. OPTION ONE: look at confession as a whole and see whether it overall falls against interest of declarant; (NOT used today). 7. OPTION TWO (option court adopts): a. Break down larger confession into separate statements i. Statements that are neutral to declarant wont hurt as long as its generally against interest. ii. Theres nothing reliable about collateral neutral statements, and one way to appear more truthful is to mix truth w/falsities. b. Determine whether each statement hurts Ds own selfinterest i. ASK: was this against the declarants own selfinterest when he made it? ii. Explain how it does/doesnt hurt Ds self-interest AND iii. Show that D realized it (or didnt) at the time. iv. Context matters; whether D was trying to curry favor w/police matters (working to get the big fish for the police in exchange for break) 8. HYPO ONE: W got cocaine from a Cuban source. I rented a car, and we were driving together to a drop-off point, where W and I were to leave cocaine for the buyer. a. Declarant=Harris; wants to use against W. b. Was declarant unavailable? Yes, unavailable b/c Harris exercised his 5th A right. c. Was the statement sufficiently against Ds interest? i. Breakdown into separate statements 1. Williams go the cocaine from a Cuban source 2. I rented the car 3. We were driving together to a specified drop-off point 4. Williamson and I were to leave cocaine for buyer. ii. Determine whether each statement hurts Ds own self-interest. 1. Defense H is trying to shift blame; W is the one w/ the drug source. Context: H is talking to police, in custody, having been caught w/drugs. Acting in Ds selfinterest. References to W are collateral (they were about W, not H). 2. Prosecution admitting insider knowledge; in describing a coconspirators actions, hes implicating himself as a partner in a conspiracy; SC doesnt really give this credit. Hs reference to W were intertwined (awful hard to split apart we). iii. Once you show that the 1st sentence is selfserving (i.e. that H was currying favor), its very hard to find in favor of the prosecution. d. Was interest at stake listed in the rule? Yes, listed as criminal liability. e. Corroboration requirement. Doesnt apply b/c it doesnt exculpate . -71-

Downloaded From 9. Confrontation Clause stuff that well go over later takes a lot of this stuff off the table. 10. If confession/statement is admissible against one and not the other, Bruton comes into play (cant use against either in a joint trial; limiting instruction wont fly). 11. HYPO TWO: I am solely responsible for the drugs; I was going to take the cocaine to a drop-off point, but only after W went home. He had nothing to do with it. a. Was D unavailable? Yes, H was pleading 5th. b. Was the statement sufficiently against Ds interest? i. Breakdown into separate statements 1. I am solely responsible for the drugs. 2. I was going to take the cocaine to a drop-off point. 3. But only after W went home; W had nothing to do with it. ii. Determine whether each statement hurts Ds own self-interest. 1. Prosecution (wants this out)Hs references to sole responsibility and Ws role were collateral, and can be excised; taking conspiracy off the table 2. Defense (wants this in)H is taking full responsibility, thus maximizing his own role and strengthening the case against him c. Was interest at stake listed in the rule? Yes, listed as criminal liability. d. Corroboration requirement. i. Incriminates H and exculpates . Necessary to corroborate trustworthiness of the statement. ii. If show that they were in fact HS friends, that they had had no contact over the previous years, that would support Hs statements about W. u. Statements of Personal/Family History804(b)(4) i. Declarant must be unavailable. ii. Declarant must be a member of the family or an intimate associate of the family. 1. If Ds statements are offered to prove facts about others, courts may require independent evidence that the declarant belongs to the family. 2. Courts applying the exception sometimes exclude self-serving statements, and those motivated by greed, ill will, or other forces suggesting untruthfulness. iii. Typically involve undisputed matters. iv. Rule applies despite the fact that D sometimes conveys what he heard from another and thus lacks personal knowledge (as is true in the first and third examples above). v. We wont be tested on this exception. v. Forfeiture by Wrongdoing804(b)(6) i. Spoliation if you made a witness unavailable through wrong-doing, then you will forfeit your right to complain about the other sides use of declarants statement. ii. Allows the proponent to use hearsay of a witness that D has made unavailable. -72-

Downloaded From iii. Ex) in a murder trial kills the witness in a crime to keep him from testifying. If you do that, then you forfeit your right to complain about use of that witness hearsay statements. iv. Logistics? Almost invariably, issue is whether procured unavailability of witness. We have a mini-trial w/in the to determine (issue for the judge outside the hearing of the jury.) v. We wont be tested on this exception. w. Catch- All Exceptions807 i. Designed to provide flexibility since its not possible to put everything into categories ii. Requirements: 1. Statement must have circumstantial guarantees of trustworthiness equivalent to those statements admitted under specific exceptions. a. Look at risks and safeguards. b. If is offering statement against criminal , he must show particularized guarantees of trustworthiness based on a totality of the circumstances. c. If D is unavailable, you can use either 803 or 804. 803 --Doesnt require unavailability --Involves extremely reliable statements --Must show circumstantial evidence that makes evidence extremely reliable 807 --Requires unavailability --Involves kind of reliable evidence --Must show circumstantial evidence that makes evidence kind of reliable

2. Statement must concern a material fact a. Basic relevance b. Since you have to have basic relevance anyway, this is never a hurdle. 3. Statement must be probative and necessary a. Need this evidence and cant do w/o it. b. Rule seems to require that proponent make some effort to gather other proof and that the statement is pretty helpful. 4. Introduction of evidence must be in interest of justice a. This is a general requirement placed on all hearsay exceptions. b. If you can show the other elements here, this is easy to prove. 5. Proper pre-trial notification of evidence must be given to opponent a. Some courts are lenient here by granting continuances (if they can do so w/o prejudice to the other party). b. No set time limit in the rule. Fairly flexible. c. Must give advanced notice (in advance of trial). If you dont, you cant use it. iii. Dallas County Case [Clock tower collapsed. Claim lightning caused collapse. Evidence of newspaper shows that charred timbers from fire while it was under construction.] 1. Now falls w/in ancient document exception, but back then it was catch-all exception. -73-

Downloaded From 2. Does statement have equivalent circumstantial guarantees of trustworthiness? a. Minimize risk of insincerity b/c its a small-town newspaper. b. Article was written on day of fire, so risk of faulty memory is minimized. 3. Did statement concern a material fact? Yes, it was relevant to insurers defense that collapse was caused by fire long ago. 4. Was statement probative and necessary? It was highly probative; unclear whether effort made to get other evidence. 5. Was introduction of statement in the interest of justice? Yes, b/c its reliable, probative and necessary, its in the interest of justice to use it. 6. Was proper notification given to opponent? Yes. iv. ACN: Catch-alls are to be construed narrowly and used sparingly. 1. If statement cant meet a specific exception, its not going to be able to get in under the catch-alls (b/c trustworthiness is lacking). 2. Must first try to get evidence in under a standard exception. 3. Only use catch-alls as a last resort. 4. If it fails under standard exception b/c it fails to meet protective requirement, its probably going to fail under catch-alls as well. 5. Ex) if you came really close to excited utterances, but you couldnt show that D was still under stress of excitement, then youre done. Cant bring it in under catch-all. Stress of excitement requirement is the protective requirement that assures us the statement is reliable. If theyre not under stress, you no longer have that protection against lying. 6. Catch-all is used primarily w/child abuse prosecution, grand jury testimony (?)


Downloaded From February 22, 2005 I. Constitutional Limits on Hearsay a. General: 6th Amendmentaccused shall enjoy the right to be confronted w/witnesses against him 1. At a minimum, that means must be personally present at trial, must be able to hear testimony and counsel must be able to cross-exam. 2. Might lose these rights if acts bad in the courtroom. ii. D is a witness against the if the prosecution is using Ds statement that cant be crossed. iii. Rule 806--hearsay D is treated like a witness and can be impeached. b. When hearsay statement is admitted, the D is a witness and that statement should be able to be cross-examined. This raises Confrontation Clause issues.



Reliability Approach


Ohio v. Roberts [ on trial for forgery of checks/possession of stolen credit cards. Anita testified at preliminary hearing, but failed to show up at trial.] 1. EvidenceAs testimony that didnt have permission to use checks/credit cards 2. Lower Courts: inadmissible; witness wasnt cross-examined during hearing. 3. Rule: when prosecutor seeks to introduce hearsay, CC requires that he show. . . a. D is unavailable to testify at trial AND i. Unavailability not required if utility of cross is remote. ii. Court has suggested that unavailability isnt required if hearsay falls w/in any of the exceptions in 801(d) or 803. iii. 804 exceptions are left; already require showing of unavailability. iv. Basically removes substance of 1st prong of this two-prong test. b. Hearsay statement is reliable. i. Falls w/in firmly rooted exception OR 1. All exceptions in 801, 803 and 804 are firmly rooted 2. Catch-all exception and state exceptions are NOT firmly rooted (Lily said 804(b)(3) arent firmly rooted). 3. Ex) former testimony, dying declarations, co-conspirator statements, excited utterances, statements for purposes of medical diagnosis/treatment, business/public records. ii. Particularized guarantees of trustworthiness.

Downloaded From Showing must be based on circumstances that surround the making of the statement itself. 2. Cannot use outside corroborating evidence 3. Ex) demeanor of witness, witness credibility, age-appropriate language, precocious knowledge. 4. HOLDING: testimony is admissible. a. questioned witness at preliminary hearing Evidence established that witness wasnt available at trial. ii. Catch-All: Criminal Cases Statement must now have particularized guarantees of trustworthiness, based on totality of the circumstances that surround the making of the statement. iii. OLD RULE: if you met any of the exceptions in 801, 803, 804, you were good w/CC. d. Testimonial Approach



1. 2.

Bumped up the 1st element for the catch-all exception.


Crawford v. Washington [Husband stabbed a man who was trying to rape his wife. Wife gave evidence in police report. Wasnt available at trial due to spousal privilege.] 1. Evidencewifes statement to PO that controverted s assertion of self-defense. 2. Lower Courts: statement is admissible; wife was unavailable at trial and statement had sufficient indicia of reliability. 3. Under Crawford, what is the central focus of the CC? a. The use of testimonial statements. b. If witness (D) is giving a testimonial statement out of court, then the CC requires that the D be subject to cross-exam in court. 4. How does that differ from Roberts? Roberts focused on whether hearsay was reliable b. Court didnt care about whom or why hearsay was made. RULE: If statement is testimonial, it cant be admitted unless the accused has an opportunity to cross-examine the declarant. If the D doesnt testify, the prosecution must show that D is unavailable AND that the accused had a prior opportunity to cross-examine the D. HOLDING: evidence is inadmissible Right to confrontation isnt a substantive guarantee that evidence be reliable, but rather a procedural guarantee that statement be tested by cross-exam. Are there any exceptions to Crawford rule? a. If procures the unavailability of the declarant (804(b)(6)), forfeits any Confrontation Clause rights. b. Maybe dying declarations (804(b)(2)). arising from Crawford When is a statement testimonial?


5. 6. 7. 8.




Downloaded From


Testimony at a preliminary hearing, before a grand jury, or at a former trial and police interrogations are all included in term testimonial b. No, court declines to fully define the term (at a minimum. . .) c. Interrogations is defined colloquially not legally (p. 374). d. Here, wifes statement knowingly given in response to structured police questioning easily qualifies as testimony. e. Responses to investigatory and hot pursuit questions are NOT testimony.


Concern w/govt involvement in getting the statement (if govt involved, its less likely to be viewed as testimonial). g. ASK: would have known this couldve been used against him at trial? h. 911 Calls i. Seeking help (NOT testimony) v. statements in preparation for trial (testimony) ii. Courts are in disarray.


Dying declarations might be viewed as testimony (courts still thinking) j. Co-conspirators statements to another? Not testimonial. k. Childs statement describing abuse to pediatrician? Probably not testimonial, but it may be.


Does Roberts still apply in non-testimonial statements? a. Court left this open; we just dont know. b. Most likely to come up in child abuse cases (b/c they normally come in through the catch-all.

c. d.

Majority HATES Roberts, so its probably good to assume that the wont keep Roberts around, but we dont know.

If they dont keep Roberts around, then they would have to meet the non-hearsay exception requirement. 3. What constitutes a sufficient opportunity for crossexamination? a. If D is unavailable, and there was no prior opportunity to cross, can prosecution use those statements? NO.


If D has testified at a preliminary hearing and had cross-examined him then, can prosecution use the statement? YES, prior opportunities to cross will satisfy the rule. If D had testified at a preliminary hearing and had elected NOT to cross-examine him then, can prosecution use the statement? Unclear, but Crawford indicates yes (just have to have the opportunity to cross). -77-


Downloaded From d. If D testifies at current trial, can you also introduce his hearsay statements? YES, if they fit a hearsay exception.


Downloaded From February 23, 2005 I. Character Evidence a. General: i. Refers to a specific traits in a person (cautiousness, etc.) instead of hes a good person. ii. Rationale: this kind of evidence can tell us something about a persons inclination to do a specific act at a certain time. iii. Aka propensity rule and rule against propensities b. General ProhibitionRule 404(a) i. CE is NOT admissible to prove action in conformity therewith on a particular occasion. ii. i.e. you cant use evidence that a person is prone to behave in a certain way to prove that he behaved in that way on this particular occasion. iii. Ex) you cant use evidence that was a careful driver to prove he was careful on day of accident iv. Rationale--low probative value and high risk of prejudice (jury will give it too much weight and punish for past crimes) c. Exceptions:


Character of the AccusedRule 404(a)(1) 1. Criminal may offer evidence of a pertinent trait of character of his own character. a. After has done so, prosecutor may offer evidence to rebut the same. b. If introduces evidence about victims character under 404(a)(2), the prosecutor may offer evidence about this same character trait of the . 2. Rationale-- has a lot at stake here; if he chooses to introduce character evidence, then its less likely to be prejudicial; gives another tool to prove innocence.


Problem 5A [D/V get in fight. Don charged w/assault and battery. D pleads self-defense. Conflicting testimony about who struck first.] a. Coach Jones: Don is Aggressive i. Is this relevant? YES 1. Key issue is who started the fight. 2. Dons propensity towards aggressiveness makes it more probable than otherwise would have been w/o evidence. ii. Does this fall w/in general prohibition of 404(a)? YES 1. This is a character trait that is being offered to prove that he acted in conformity with that character trait on that night. 2. Prosecution offers evidence to show D has a violent character and that he acted in conformity w/character on night of fight. iii. Does this fall w/in exception of 404(a)(1)? NO 1. Barred b/c it was initiated by the prosecution. 2. 404(a)(1) allows only defense to raise this.


Downloaded From 3. In order to use one of the exceptions to 404(a), the character trait must be introduced by the defense. iv. If court lets Gram testify, can prosecutor use Jones as a rebuttal? YES 1. Permits prosecution to rebut the s evidence of good character 2. must first have opened the door. Prosecution is limited to rebutting evidence of s good character traits w/evidence of those same character traits. 4. One price that pays for opening the door to his own character. b. Reverend Gram: Don is Peaceful. i. Is this relevant? YES 1. Key issue is who started the fight. 2. If you know Don has an inclination towards violence, that makes it more probable than it would otherwise have been that he started fight. ii. Does this fall w/in general prohibition of 404(a)? YES 1. We have character evidence that Don has a peaceful character. 2. Evidence he acted in conformity with that character that night. 3. Offering evidence that Don is peaceful to show he was peaceful on the night of the bar fight. iii. Does this fall w/in exception of 404(a)(1)? YES 1. Character of accused is offered by the accused 2. Trait here is pertinent b/c it has to do w/his peacefulness or aggressiveness and the issue is who started the fight. NOT barred by the character evidence rule. ii. Character of VictimRule 404(a)(2) 1. Criminal may offer evidence of a pertinent trait of victims character. a. Pertinent = goes to a disputed issue. b. After has done so, prosecution can rebut the same. c. If its a homicide case and offers evidence that victim was the first aggressor, then prosecutor can introduce evidence of victims peacefulness. 2. Rationale has a lot at stake in a criminal case; it seems fair for to be able to show that the victim was a violent guy.



3. 4.

LIMITATION: rule 412 (rape shield statute) trumps rule 404(a) (2) Problem 5-B [Evidence that Vince is a belligerent, fightstarter] a. Is this relevant? YES. If Vince is belligerent and aggressive, it makes it somewhat more probable that he started the fight. -80-

Downloaded From b. Does this fall w/in general prohibition of 404(a)? YES. i. is offering evidence to show that Vince has a violent character ii. Showing that acted in conformity w/that character on night of fight. c. Does this fall w/in exception of 404(a)(2)? YES i. Criminal may offer evidence of a pertinent trait of victims character ii. Vinces aggressiveness is pertinent to who was the aggressor. d. After evidence shows V is violent, can put on evidence that D is violent? i. *YES, 404(a)(1) now permits prosecution to offer evidence about the same character trait of the (new rule allows cross-over; if opens door as to victim, he opens door to CE of himself) ii. NO, keep CE in boxes; open door only to victim and not to D (old rule; doesnt apply anymore) iii. Why? Its not fair for to put on all this evidence about victims bad nature, and not have jury hear about s bad nature too. 5. HYPO: Don calls an eyewitness who says that he saw Vince throw the first punch. a. Dont use 404(a)(2) b/c this isnt evidence of a persons character. That eyewitness is describing facts of the evening; its direct evidence. c. Testifying as to facts, NOT evidence of a character trait. 6. HYPO: What if Vince died and Don is charged w/homicide. Eyewitness says he saw Vince hit first. Could prosecution introduce evidence as to Vinces peaceful nature? YES. a. If claims self-defense, has automatic green light to introduce evidence about Vinces peaceful nature. b. This exception is used even though the trigger wasnt CE; it was direct evidence. c. Exception usually comes into play w/criminal trials where defense is self-defense d. Relationship between Rules 404 and 405 i. Decide whether evidence is character evidence w/in prohibition of 404(a) ii. If it is, decide whether its nonetheless admissible under 404(a)(1) or (2) iii. If it is, then go to 405(a) to determine what evidence you may use to prove the pertinent character trait. e. Methods of Proving CharacterRule 405 i. You can use either reputation or opinion testimony to help you admit CE. Reputation Opinion from a larger community of people who have a basis for knowing the Going to have to show the witness talked to others in the relevant community; talk occurred before became accused of particular crime. Opinion One persons opinion Going to have to show personal acquaintance between witness and .


ii. When can you use specific instances of conduct? 1. Under direct, you cant go into specific examples. -81-

Downloaded From 2. In cross, you may inquire into specifics 3. Rationalehelps jury evaluate witness testimony iii. Problem 5-C [If judge lets Ernie testify about Vs character, what can E say?] 1. Vince is a belligerent, aggressive guy w/a real short fuse. a. Opinion testimony. b. Can use this testimony? YES, as long as you can establish that E knows V 2. Everyone around town knows that Vince is aggressive a. Reputation evidence. b. Can use this testimony? YES, just have to establish that E had been talking to people about V. 3. Defense cant ask Ernie to give specific examples; that can only be done on cross. iv. Specific Instances of ConductRule 405(b) 1. When can you use specific instances of conduct? Only on crossexamination. 2. In cases in which character of a trait of a person is an essential (actual) element of a charge, claim or defense, proof may be made of specific instances of persons conduct. 3. In criminal cases, character is almost never an element of charge/defense. 4. Civil Cases4 examples where character is always an essential element: a. Defamation b. Negligent Entrustment c. Child Custody d. Wrongful Death


Downloaded From February 25, 2005 II. Character Evidence (cont.) a. Cross-Examination and Rebuttal i. Problem 5-D [Cross-exam reveals that Don beats his wife.] 1. On cross, inquiry is allowable into relevant specific instances of s conduct. ii. Whats the purpose of allowing inquiry into specific instances on cross? 1. Helps the jury evaluate the witness testimony. a. If he doesnt know, does he really know D well enough to know testify? b. If he does know, claim his standards are low b/c he thinks D is peaceful after knowing D beats his wife. 2. Used as a way to impeach the witness; way of probing how well he knows and what his standards are. iii. May the jury use the specific instances as proof of s character? NO. 1. Can only ask for the purpose of showing Grams opinion isnt worth much. 2. Cant use this to prove that Don is a violent man. iv. If witness denies that the specific instance occurred, may the crossexamining lawyer prove that it did w/extrinsic evidence? NO 1. Inquire is the verb used. They can ask about it, but they cant go further than that. 2. Shouldnt be able to punish for the wife-beating incident when hes not on trial for that. 3. Want to avoid the mini-trial that this will inevitably bring. v. How certain must the cross-examining lawyer be that specific instance actually occurred? 1. Must have a good faith basis for believing that it happened. 2. Its unethical to come up with the meanest thing you can think of and insinuate to the jury that thats what the did. 3. Pretty low standard. 4. Judge can make prosecutor prove what the basis is before putting on the question. vi. really pays the price for opening the door to CE. 1. The jury is going to have a hard time limiting the evidence to the fact that Gram isnt credible. Theyre going to use evidence to prejudice . 2. Could argue for exclusion under 403 and 105, but it probably wont be excluded b/c brought it up in the first place. vii. You can only ask about relevant specific instances on cross. 1. Can ask Gram whether Don was fired last month for embezzling? NO; although they have a GF basis for believing so, its not relevant to trait of violence or peacefulness. 2. Can ask Gram whether he knew that Don was arrested for brawling at a football game? YES; this is relevant to aggressiveness. b. Character as an Element of a Charge, Claim or Defense405(b) i. Criminal Cases 1. Rule 405(b)where character is an essential element of the crime, you can introduce CE 2. When is character an element of a charge or defense? a. In criminal cases, almost never. b. EXCEPTION: unchaste act committed by victim offered as proof shes unchaste 3. We dont convict a person b/c hes bad or acquit him b/c hes good. -83-

Downloaded From 4. Problem 5-E [Gretta is charged w/shoplifting after a security guard catches her w/new items matching those of stores. Evidence is offered that Gretta has stolen before.] a. Is this within 404(a)s prohibition? YES. Offered to show Gs propensity to shoplift to show that she shoplifted this time. b. Do any of the 404(a) exceptions apply? NO. Prosecution is introducing evidence and isnt rebutting a defensive claim. c. Does have to show that she has a propensity to shoplift to prove that she did shoplift this time (is it an element)? i. NO. Elements of shoplifting dont include proof that is a shoplifter. ii. Therefore, it doesnt fit this exception. iii. Have to show that character trait in and of itself is one of the elements ii. Civil Cases 1. Both 404(a)(1) and 404(a)(2) are available ONLY in criminal cases. 2. Rule 405(b)where character is an essential element of the crime, you can introduce CE 3. When is character an element of charge or defense? a. Defamationwhere truth is defense b. Negligent Entrustmentmust prove driver was careless c. Child Custodyparental fitness d. Wrongful Deathdamages turn on worth of decedent to 4. If character is an essential element, you are outside the scope of 404(a). a. CE isnt being used to prove action and conformity on a particular occasion. b. Instead, its being used to prove character itself (which is an element of the claim/defense). 5. If its an essential element, what kinds of proof may you use? a. Opinion, reputation and/or specific instances. Prior Acts as Proof of Motive, Intent, Plan and Related Points404(b) i. 404(b): CE cant be used to show propensity but can be used for other purposes ii. Ex) sold drugs as proof that on this occasion he intended to sell similar drugs found iii. A good lawyer can usually think of a non-propensity use for introducing CE, however it may still be excluded b/c these are subject to 403 b/c of the improper and proper use of the evidence. 1. Proper purpose404(b) use 2. Improper purpose--propensity iv. Procedure for Admitting Evidence under 404(b) 1. identifies a legitimate, non-propensity 404(b) purpose for evidence (ie. intent, identity) 2. Judge decides whether evidence is probative on that issue and whether that issue is a material issue in the case (is it disputed?) 3. Judge must determine if the evidence of other acts is sufficient for a reasonable jury to find that, by a preponderance of the evidence, actually did the other acts. a. This is an example of 104(b) in action.



Downloaded From b. Here, judge is only serving as a screener. Jury is the governing body that decides whether preponderance standard is met. c. Very low standard. Even if judge doesnt think did this past act, judge has to be able to say no reasonable jury could find the standard to be met. 4. Judge balances the probative value of the evidence (404(b) purpose) against the risk of prejudice (jury using as proof of propensity) (403 analysis) 5. If judge admits the evidence, is entitled to a limiting instruction. v. INTENT. Problem 5-F [Undercover entrapment of Ronald Moores drug sales. Moore claims the proposed transaction was a scam to dupe the buyer. Evidence of past drug sales.] 1. Can prosecution offer this evidence to show that b/c M has frequently sold cocaine in the past, he was probably selling it on that day? NO a. That is character to prove propensity. b. Both 404(a) and 1st sentence of 404(b) dont allow this. 2. What purpose should prosecution offer this evidence for? a. Intent. b. He intentionally sold cocaine in past, therefore he had intent to sell it this time. c. In drug cases, intent is a KEY element the prosecution has to prove. 3. This is kind of similar to propensity. a. Propensity. He did it before; he probably did it this time. b. Intent. He intended to do it before; he probably intended to do it this time. c. How is this different? Intent is a stronger indicator that he meant to do it this time. If it was just a fluke in the past, then it probably wasnt something he was trying to engage in again. d. Propensity and intent are functionally the same, but courts routinely allow intent to come in, even though it really isnt different than propensity. e. Frame argument as an INTENT argument, instead of a propensity argument. 4. You can only claim intent if intent is an element you have to prove. (Some require intent to be a disputed element of the case). 5. Is there a legitimate 404(b) purpose for evidence? YES, intent. 6. Is the evidence probative on a material issue in the case? YES, prior intentional sales do make intent more probably and intent is key issue in the case. 7. Is evidence of other act sufficient for jury to find that actually did the other act? YES a. Ex-girlfriends knowledge is sufficient b/c she has 1st hand eyewitness testimony b. Defense will say shes making it up as a parting of relationship ways. c. Does this meet preponderance of the evidence standard? YES i. Have Rhoda testify to see her credibility. ii. Even though theres a big reason for her to lie, theres a possibility she could be believed. -85-

Downloaded From iii. There is enough evidence here (eyewitness testimony) that a reasonable jury could find to be guilty by a preponderance of the evidence. d. Even if was tried and acquitted of the past drug sales, they can still be used as evidence that he committed this crime. i. Standard of proof is different now. ii. NOT a double jeopardy problem, b/c hes not really being tried again. 8. Is probative value of the evidence substantially outweighed by risk of unfair prejudice? a. Probative Value: inference from past sales is strong, but Smith may be making this up b/c she has a grudge; intent is hard to prove otherwise, need is high. b. Prejudice: risk is high that jury will use evidence to prove propensity; overvaluing evidence; bad man theory c. The judge will admit the evidence b/c the probative value isnt substantially outweighed by unfair prejudice. 9. can get limiting instruction if he wants one.


Downloaded From March 1, 2005 III. Character Evidence (cont.) a. Character as an Element of a Charge, Claim or Defense404(b) i. IDENTITY. Problem 5-G [Bank robbery. Evidence that robber was hunched over. s confession from similar crimes states he always runs hunched over.] 1. Have to show that this method is distinctive and earmarks him as perpetrator of crime 2. Is there a non-propensity purpose for the evidence? YES, identity. 3. Is the evidence probative on that issue, and is the issue material? a. Prosecutiontiming, car switch, hunched running and vault make this similar b. Defenseall these facts are common to bank robberies; not signature 4. If the evidence sufficient for a reasonable jury to find, by a preponderance of the evidence, that the did these other robberies? YES, confessed to them. 5. Striking similarity is the most common way of showing identity. 6. Other Examples: if something about the prior crime explains the motive for the present crime, you can use that evidence to prove identity. a. Murder cases where accused kills only witness. b. Unique skillsdisabling sophisticated alarm systems. 7. Crime must be so distinctive and so similar as to be almost like a signature. ii. PLAN/DESIGN. Problem 5-H [Judge indicted for accepting bribes to fix the outcomes of cases. Evidence of receiving envelopes full of cash.] 1. Prosecution needs to show an overarching plan or bigger goal, and that each of the prior acts were designed to execute that plan. 2. Must show that all prior acts were part of some overarching plan. All acts were done in order to achieve a larger goal. 3. Ex) minor crimes completed along the way to compete some big crime. 4. formulates a grand design that encompasses both charged and uncharged offense. 5. Design is overarching and all crimes are integral components/portions of same plan so each crime amounts to a step/stage in executing the plan. 6. Here, prosecution must prove that each one of these generalized instances of accepting cash was part of an overall plan to extort affecting interstate commerce. iii. OTHER PURPOSES. Problem 5-I. [Mom brings in son who suffering from injuries. Claims injuries resulted from accidents. Not the first time son has been brought in.] 1. Each is an unusual occurrence and theres a small probability that its just a coincidence 2. Here, injuries to baby arent the kind that usually happen in an accident and its highly probably that mom abused him, since shes the primary caretaker. 3. Is there a non-propensity purpose for the evidence? YES, absence of accident. 4. Is the evidence probative on that issue, and is that issue material in the case? -87-

Downloaded From a. Doctrine of Chances : ordinarily children dont suffer 3 extremely serious domestic accidents in one year. Suggests that it wasnt accidental. b. Brides in the Baths. Man charged w/drowning his wife. claimed she had drowned in the bathtub. He actually had 5 wives drown in the bath. c. Using probabilities instead of the propensity inference. d. We can believe one strange incident is an accident, but repeated incidences of strange accidents make it more difficult to believe. 5. Show that you have an unusual occurrence that has happened too often for it to just be a coincidence. iv. Pre-Trial Notice Requirement 1. must trigger it by making a timely request that the prosecution provide it with notice of the general nature of any 404(b) acts prosecutor intends to introduce at trial 2. If asks, the prosecution must give information about the other act evidence theyre going to introduce. 3. No time limits are specified, so based on reasonableness 4. You should automatically make this request. It might be malpractice otherwise. Unless you make it, they have no obligation to give you notice. 5. Designed to reduce surprise. b. PROBLEM i. Facts: Vance was bludgeoned to death. Head bashed w/metal pipe, but no other marks on his body. Drake convicted a few years ago of murdering Todd in a similar manner ii. Objection: improper use of character evidence 1. Statement of 404(a)s prohibition. a. Evidence of a persons character/trait of character isnt admissible for the purpose of proving action in conformity therewith on a particular occasion. 2. Discussion of how 404(a) applies and limits use in this particular case a. Cant show that he murdered Todd, therefore he was probably the one who murdered Vance. iii. Response: offered for non-propensity purpose 1. Statement of 404(b) a. Identity. Striking similarity 2. Analysis of 404(b) a. Is there a non-propensity purpose for the evidence? YES i. Striking similarity ii. If something about a prior crime is so distinctive that it earmarks as perpetrator of this type of crime, you can use evidence to prove identity. b. Is the evidence probative on that issue? YES i. It is probative on that issue b/c of the striking similarity. ii. --head was bashed in and was only the part of the body injured, murder weapon was similar, same time frame, etc. iii. --different locations; most muggings occur during the middle of the night; murder weapons are different and arent unique c. Is the issue of identity material in this case? YES -88-

Downloaded From i. Drakes defense is it wasnt me and that is a question of identity. ii. This makes it a material issue in the case. d. Is the evidence sufficient for a reasonable jury to find, by a preponderance, that Drake murdered Todd? i. Normally, its a 104(a) question, but heres its a 104(b). Judge just performing a screening function. ii. Drake was tried and acquitted on his past crimes. iii. However, Dowling tells us that this doesnt matter. Its not double jeopardy. iv. This probably meets the standard. e. Is the probative value substantially outweighed by the risk of unfair prejudice? i. When youre doing the 403 analysis, you should be reusing all the stuff you thought about in the 404(b) test. ii. Any concerns you had about the probativeness/prejudiceness of this evidence should be reconsidered now. iii. Probativeness: not very sure that Drake murdered Todd b/c he was acquitted; this isnt very strong evidence of identity (it barely met the striking similarity standard); high need here b/c this is central issue iv. Prejudice: bad man theory; strong chance that jury will indulge in propensity theory, which is forbidden; 3. If evidence is admitted, Drake is entitled to limiting instruction. 4. NOTICE: if Drake requested, the prosecution must have given him pretrial notice of its intent to use this 404(b) evidence. 1. Rape Shield RuleRule 412 This is an exception to the exception of 404(a)(2). Purpose: to limit evidence that the can bring in evidence of a pertinent trait to the sexual offender regarding a victims sexual history. Policy: to encourage victims to report crimes; its unfair to put victims in humiliating situations. OLD RULE: past sex history was allowed b/c it went to credibility of witness and showed consent. (a) Requirements: the following is inadmissible in a criminal/civil proceeding: i. Evidence offered to prove that any alleged victim engaged in other sexual behavior ii. Evidence offered to prove any alleged victims sexual predisposition (b) EXCEPTIONS: i. Exceptions for Criminal Cases 1. 412(b)(1)(A) evidence can be used to show that the other person was the source of the semen/injury 2. 412(b)(1)(B) permits the to introduce evidence of the complainants past sexual activity w/him for the purpose of proving consent. a. Subject to the procedural requirements and 403 b. Prosecution may also introduce this evidence (e.g. in child molestation case)

c. d. e. f. g.



Downloaded From 3. 412(b)(1)(C) strict procedure rules to get excepted under (b). a. Have to file motion 14 days before trial and service to all parties b. Then a private hearing is held where the judge can make a 403 analysis ii. Exceptions for Civil Cases 1. 412(b)(2) exception applicable in civil case a. Uses balancing test, rather than giving specific exceptions. b. Requirements: i. Show that evidence is otherwise admissible under the rules ii. Show probative value of evidence substantially outweighs the danger of harm to victim and of unfair prejudice to any party iii. CAVEAT: evidence of alleged victims reputation is admissible only if she has placed it into controversy. (c) Procedure to determine admissibility. Kobe Bryant Problem i. She is sexually very active 1. Is this relevant? YES a. If she is prone to consent to sex, it makes it somewhat more probable that she consented to have sex w/Kobe that night. 2. Is the testimony w/in 404(a)s prohibition? YES a. The defense is offering evidence to show that she has a promiscuous character and that she acted in conformity to that character on night of alleged rape. 3. Does this fall w/in any of the exceptions of 404(a)? YES a. Falls w/in 404(a)(2). Pertinent character trait of victim. b. However, b/c this is a rape case, it falls w/in 412. 412 overrides 404. 4. Is the testimony w/in 412(a)s prohibition? YES a. 412(a) bars all evidence of the alleged victims other sexual behavior and sexual predisposition. b. This evidence shows evidence previous sexual behaviors/predispositions. 5. Do any of the specific 412(b) exceptions apply? NO a. This is opinion evidence. b. The exceptions are both limited to specific instances of conduct, or permits use of reputation or opinion evidence. c. You cant ever bring in opinion/reputation under 412(b). 6. Is there any argument the defense could make? a. Evidence the exclusion of which would violate the constitutional rights of . b. Claiming that it would be a violation of DP NOT to let this evidence in. c. Very unlikely to win b/c evidence itself is so weak and so problematic. ii. She had sex w/another man three days earlier 1. Is the evidence w/in 412(a)s prohibition? YES a. 412(a) bars all evidence of the alleged victims other sexual behavior and sexual predisposition. -90-

i. j.

Downloaded From 2. Do either of the specific exceptions in 412(b)(1)(A) or (B) apply? YES a. 412(b)(1)(A)? YES i. Arguing that the other person is the source of the semen/injury ii. Normally not used in consent cases. This is normally used when defense is based on identity ( saying it wasnt me.) iii. COULD be used in consent cases, however. 1. Argument: Kobe arguing that those injuries didnt arise from their consensual sex. 2. It wasnt me who gave her those injuries. iv. Kobe must claim the other man was the source of her injuries for exception to apply. b. 412(b)(1)(B)? NO i. Goes to consent ii. Cant use (B) b/c it only applies to other specific instances w/ accused. iii. She had sex w/another man several hours after she had sex w/Bryant 1. Is the testimony w/in 412(a)s prohibition? YES a. 412(a) bars all evidence of the alleged victims other sexual behavior and sexual predisposition. 2. Do either of the specific exceptions in 412(b)(1)(A) or (B) apply? a. 412(b)(1)(A)? YES i. Make the same argument as the first one. Kobe should claim that the other man was the source of her injuries. ii. If she had just been raped, why would she go and have sex w/another? 1. She wasnt traumatized. 2. Because she wasnt traumatized, she probably wasnt raped. 3. However, this doesnt fall w/in 412(1)(A). b. 412(b)(1)(B)? NO i. Goes to consent ii. Cant use (B) b/c it only applies to other specific instances w/ accused. 3. What procedural steps must Bryant take? a. 412(c)(1) b. Make a motion at least 14 days before trial describing the evidence and stating the purpose for which its offered. 4. What steps must the court then take? a. 412(c)(2) b. Must conduct a hearing in camera (in chambers, away from jury and media) i. Prosecutionthis should be excluded under Rule 403. 1. 3 Days Prior Evidence : Low probative value (time lapse, 3 days prior weakens evidence), high prejudice (jury will use to show girl is a tramp) 2. Evidence of sex between Bryan and hospital : PV (reliability of evidence), -91-

Downloaded From high prejudice (if jury finds out that girl had sex after the Bryant encounter, chance of guilty verdict is low) Civil: 412(b)(2) --PV must substantially outweigh prejudice --Burden is on proponent --Also permits consideration of harm to victim (Basically a reverse 403 standard) Criminal: 403 --Prejudice must substantially outweigh PV --Burden is on the Opponent

ii. In actual case, court held that they could show evidence of sexual encounters w/in 72 hours of hospital exam. iv. She had sex w/the man that she first told about the incident w/Bryant. 1. Is the testimony w/in 412(a)s prohibition? YES a. 412(a) bars all evidence of the alleged victims other sexual behavior and sexual predisposition. 2. Do any of the specific exceptions in 412(b)(1)(A) or (B) apply? NO 3. Is there any argument the defense can make? YES a. 412(b)(1)(C) b. Argument: it violates his DP right for him to not introduce this evidence. c. Must show that the girl had a MOTIVE to misrepresent the facts d. Evidence creates a motive for her to color her description of the incident. i. Desire to cover w/rape since she had this relationship w/bellhop. ii. Desire to cover b/c she might lose her job for having sex on the job e. Bellhop may also have incentive to help her story. f. In actual case, judge allowed questioning about her relationship w/the bellhop, but on an extremely limited basis. g. Constitutional exception requires really strong proof. You have to show that it violates the DP clause to NOT let this in. h. Its rare to get opinion/reputation evidence in under this exception k. Other Notes i. Sexual harassment cases are also covered by 412. ii. Sexual predisposition also covers things like mode of dress, lifestyle, etc. iii. Look at Advisory Committee notes for a closer examination of how to apply. IV. Other Sexual Offense RulesRules 413, 414, 415 a. These rules were put together by Congress, NOT advisory committee; heavily criticized. b. Other sexual offenses doesnt have to mean convictions. i. Just being accused is enough. ii. Have to show by a preponderance that other sexual conduct occurred. -92-

Downloaded From c. d. e. f. Prior sexual offenses dont have to be brought up in the past. Allegations can arise at same time. These rules remove the ban on propensity evidence in sexual misconduct cases. It is admissible and may be used for any purpose (i.e. prone to commit sexual assault and therefore more likely to have committed this one.) Rationale? i. Sexual offenders are usually repeat offenders ii. Without the evidence, it would be nearly impossible for prosecutor to prove date rape. This evidence is VERY prejudicial against . Rule 413Evidence of Similar Crimes in Sexual Assault Cases i. Evidence of s commission of other sexual assault offenses is admissible, and may be considered on any matter to which it is relevant. ii. Court basically saying you can use evidence to show propsentity (which is normally forbidden) iii. In sexual assault cases, the propensity inference is fine. iv. Limitations 1. Prosecution must give pretrial notice 2. s prior sexual misconduct must have amount to a crime in jurisdiction where it occurred. v. Problem 5-F. 1. Facts: Craig worked at the base where Karin was enlisted. Went to bar and drank, then went to a scudded area where he raped her. Evidence of a former GF that he tried to rape her; past conviction of assault of 13-year-old girl. 2. Is this admissible under 413? a. Ex-GFs testimony would be; evidence of another sexual offence and is relevant b. Child molestation would also be b/c its relevant, and requirements are not restricted to adult assault. c. He has propensity to sexually assault and could be used to show that he probably assaulted the alleged victim. Rule 414Evidence of Similar Crimes in Child Molestation Cases i. Evidence of s commission of other child molestation offenses is admissible, and may be considered on any matter to which its relevant. ii. Limitations 1. Prosecution must give pretrial notice 2. s prior sexual misconduct must have amount to a crime in jurisdiction where it occurred. R. 415Evidence of Similar Acts in Civil Cases Concerning Sexual Assault/Child Molestation i. Evidence of other such offenses is admissible, as provided in 413 and 414. ii. (i.e. if you could do it in a criminal case, you can do it in a civil case, provided you have the right set of facts.) iii. Limitations 1. Prosecution must give pretrial notice 2. s prior sexual misconduct must have amount to a crime in jurisdiction where it occurred. HYPO: what if a woman came forward and said Kobe was aggressive with her seven years ago. i. Can this be admitted? YES, and it can be offered to prove that hes prone to do this. ii. What can Kobe do to keep this out? 1. 403 a. Its not going to be enough to argue that the propensity inference is prejudicial. -93-

g. h.




Downloaded From b. These rules deem the propensity inference to be fair c. Youre going to have to show some other reason for prejudice here or some other proof that probative value is unusually low. Its probably going to be admitted here.


Downloaded From March 8, 2005 a. Habit and Routine Practice Rule 406 Evidence of the habit of a person or routine practice of an organization is relevant to prove that the conduct of the person/organization on a particular occasion was in conformity w/that habit or practice Typically used more in civil cases, but can be used in criminal cases. Definition of Habit i. Ones regular response to a repeated situation. ii. Unconscious reflexive action iii. Xs regular practice of meeting a particular kind of situation w/a specific type of conduct. iv. Particular behavior in a specific setting; regular and not invariable. v. (Compare to Character: a persons tendency to act prudently in all varying situations of life) Why is habit admitted and character is excluded i. Habits are more probative (its more likely you behave in conformance w/your habit, b/c by definition, its a regular response to a repeated situation). ii. Less prejudicial 1. Typically deal w/neutral activities like wearing seatbelt, putting foot on brake, etc. 2. Character usually carries more baggage (deals w/moral overtones) iii. Less speculative ACN: arguing that he never missed a religious observation; court said this wasnt habit. i. Court says the volitional basis of activity raises serious questions as to probative value. ii. If you have to make a conscious choice (which you do w/going to church), its not habit. iii. Habits involve unconscious decisions like putting on your seatbelt, NOT things like making conscious decision to go to church. HYPO: alcoholic who always has a drink when he comes home. i. Probably NOT a habit, although some courts have held that it is. ii. The more moral underpinnings there are to action, the less likely the court will treat as habit. a. Subsequent Remedial MeasuresRule 407 This rule bars evidence of subsequent repairs to prove that was negligent. Is this evidence still relevant? YES. Makes it somewhat more probable that LL was negligent. We want to encourage people to make useful repairs Doesnt require exclusion of subsequent measures if its used to prove other purposes i. Ex) proving ownership, control, or feasibility of precautionary measures ii. Issue must be controverted (a party can block introduction by admitting the issue) iii. If you use to prove other purposes, you must do a 403 analysis for its improper/proper use HYPO: sues for injuries on stretch of road where was working. claims failed to adequately warn of the danger. -95-

b. c. d.




h. i. j.


Downloaded From i. Can offer evidence that the day after her accident put up warning signs, to prove that was negligent in failing to do so earlier? NO ii. If claims that it wasnt responsible for putting up signs b/c it didnt control that stretch of road, can use this evidence? YES 1. This isnt being used to prove fault, its being used for some other purpose. 2. can used to show that did in fact have control. 3. Still have to do 403 analysis. a. Proper-- had control. b. Improper--s subsequent act makes him liable. iii. How can avoid admission of this evidence? 1. can stipulate/concede that he had control 2. If issue isnt controverted, can absolutely close off that avenue for admission. iv. In order to impeach witness testimony, witness earlier testimony pretty much has to state that the repair was impossible, and then use to show that witness made repair. l. Other Notes i. Changes made before the accident are NOT subject to the rule. 1. Comes up in PL type cases 2. HYPO: my model of car has the alleged defect. Before my accident, company makes a design change to cure defect. The evidence of the design change is admissible b/c it occurred before my accident. 3. Makes sense w/purpose of rule. If the repair has already been made, theres no need to worry about impairing people from curing the repair post-accident. ii. Rule applies in PL cases. 1. Some authorities say it shouldnt b/c 407 wont prompt responsible behavior in these major corporations; instead the fear of addl lawsuits will. 2. Many states still dont apply the exclusionary rule (OH doesnt) iii. Does the Erie doctrine require fedl courts to follow state practice on subsequent measures? 1. Most authority says no, but matter is still open for debate. 2. Fedl law conflicts w/many state rules in PL cases. 3. Here, you apply the fedl rule, even though it might change outcome of case. iv. When can subsequent measures be shown to prove feasibility? 1. Ex) COA against a manufacturer for using a defectively designed alternator shaft which caused a plane crash, upheld admission of evidence of subsequent design modification for purpose of showing that design changes and safeguards were feasible. 2. 407 permits if that point is controverted. a. Compromise and Offers to CompromiseRule 408 Bars proof of settlements/settlement negotiations in order to show liability for the claim in question. m. Settlement doesnt have to be w/a party to the action; could be done w/3rd party outside of action n. Rationale: want to encourage party to reach negotiations w/o fear of having words used against them. -96-

Downloaded From o. Exception: i. You cant just bring in outside shit to the settlement negotiation just to immunize it. ii. If the evidence couldve been obtained independently (through discovery), it cant be immunized simply by bringing it up during the settlement negotiation. iii. The only thing thats protected is info that the other party would NOT have learned otherwise. p. Rule doesnt exclude evidence when its offered for another purpose i. Ex) proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution ii. Subject to 403. q. Problem: Offers to Compromise i. FACTS: D and M collide cars. Each claims the other is negligent. D wants to introduce evidence that P (Ds passenger) settled his claim w/M to prove Ms fault. ii. OBJECTION: 1. Rule 408 bars proof of settlement negotiations in order to show liability. 2. D is NOT allowed to show that since M settled, M is liable. iii. RESPONSE: 1. D will argue that this falls w/in other purposes clause. 2. P argued one thing before settlement (M was at fault) and a different thing after settlement (M wasnt at fault). 3. $10k pay-off starts to look like a bribe; makes it look like Ps testimony has been purchased here. iv. 403 ANALYSIS: 1. Probativeness : bias is pretty strong here; this is a key witness here, this is absolutely necessary to undermine her credibility. Probativeness is high. 2. Prejudice : fear that this will be used for improper purpose of proving liability; high likelihood that jury will do this. 3. Consider whether limiting instruction will help minimize the prejudice. 4. Probably will definitely come in given how strong the bias is and how badly D needs it. a. Plea Bargaining in Criminal CasesRule 410 Plea bargaining statements are excludable. Excludes all statements by accused in entering pleas. r. Rationale: promote the disposition of cases by plea bargaining. s. RULE: Evidence of the following isnt admissible against who made the plea: i. Actual Pleas (1-3) 1. A plea of guilty which was later withdrawn 2. A plea of no contest 3. Any statement made in the course of any proceeding under R11 of FRCP ii. Plea Negotiations (4) 1. Statements made in course of negotiations w/any attorney for prosecution which doesnt result in a plea of guilty OR results in a plea of guilty later withdrawn 2. Courts have extended this rule to also protect statements where can show: -97-

Downloaded From a. Law enforcement official had actual authority to bargain and was doing so, OR b. believed that bargaining was occurring and belief was reasonable in circumstances t. Problem 5-Q: I Used His Stuff i. FACTS: charged w/passing counterfeit bills. s lawyer meets w/ and tells her that isnt involved deeply but will help get the big fish. At next meeting, agents are there, but no . gives them a long description about B, the major suppliant. doesnt sign waiver. ii. Can meet requirements of 410(4)? NO 1. Rule only applies to statements made in plea negations w/prosecuting attorney. 2. Here, prosecuting attorney wasnt present (only agents) iii. Can here make either of the other 410(4) arguments? 1. Theres nothing to suggest that agents had actual authority to bargain. 2. Pro- a. Agents said they were there to discuss plea, NOT to get a confession. b. refused to sign waiver form; shows he thought they were just bargaining. c. Parties actually bargained here. 3. Anti- a. was told, via Miranda, that statements can be used against him in court. b. Lawyer said they werent ready to bargain. 4. probably wont be able to show he was acting reasonably in bargaining. Courts are strict to allow judicial exceptions. u. VERY Limited Exceptions: i. Rule of completeness. If one party introduces evidence, party can introduce other statements which ought in fairness to be considered contemporaneously along with it. ii. You can use them if its a subsequent perjury action. v. Other Notes i. If represents himself, look at: 1. Whether exhibited actual subjective expectation to negotiate a plea AND 2. Whether expectation is reasonable given totality of circumstances. ii. Cant use plea bargain statements to impeach . 1. Ex) during plea bargain, says I have pass lots of fake bills. At trial, says I have never passed fake bills in my life. 2. Contradictory statements cant be impeached w/evidence fro plea bargain statements. 3. s Recourse? Charge with perjury and have a separate trial on that. iii. Protections of 410 can be waived. can say I agree that you can use these statements against me for impeachment purposes. March 9, 2005 a. Payment of Medical ExpensesRule 409 Cant use payment of anothers medical bills to prove liability. w. Rationaleto encourage people to assist injured persons; low probative value. x. VERY limited rule. -98-

Downloaded From i. ONLY the offer to pay and the actually payment are protected under this rule. ii. Factual statements accompanying offer are NOT protected. iii. Ex) two cars collide. The driver of one car says Im so sorry, this was all my fault. Please let me pay your medical expenses. 1. Please let me pay your medical expenses is covered by 409. 2. Im so sorry; this was all my fault is NOT covered. a. Youll have to find another exception to get this out. b. Might come in as settlement negations under 408. y. No explicit other purposes clause. i. However, prohibition is limited to use of statement to prove liability. ii. If youre not using for prohibited purpose, you may use it for another purpose, subject to 403. iii. Hard to think of another purpose to use it for. a. Liability InsuranceRule 411 Prohibits evidence of liability insurance to be used for purpose of proving fault. z. License to be careless and displaying special caution is speculatory and contradictory. aa. Rationale: i. Evidence that is insured is marginally relevant to issue of fault b/c people arent more willing to be careless just b/c they have insurance. ii. We dont want juries deciding liability based on whos going to pay. bb. Other Purposes Clause i. Limits prohibition to using the evidence to show fault. ii. Reminds us that you CAN use it for another purpose, subject to 403. Competency of Witnesses I. Historical Context a. Covered in 601-603 b. Most knowledgeable people couldnt testify. c. Used to bar the following: Mental incapacity, religious belief, criminal conviction, infancy, parties, spouses, accomplices, other interested persons d. CL rules abolished in terms of making a witness incompetent to testify. Now used for impeachment. II. Modern Context a. Rationale: its better to have more information coming in, even if some of it is found to be unreliable. b. United States v. Lightly [Prisoner received wounds from another inmate in cell. found guilty. Co-inmate held to be insane and not fit for trial.] i. Two Stories: 1. McDuffie and Lightly stabbed McKinley OR 2. McDuffie stabbed McKinley; Lightly tried to stop and McDuffie then sliced Lightly. ii. If McDuffie was capable of testifying, he would say only he, and not Lightly, stabbed McKinley. iii. RULE: every witness is presumed competent to testify unless it can be shown that he doesnt understand the duty. iv. There is a strong presumption in favor of competency. v. HOLDING: McDuffie should testify. 1. Physician found he had sufficient memory, understood the oat and could communicate. 2. This would corroborate Lightlys testimony, so it cant be considered harmless error -99-

Downloaded From c. Basic Requirements for Competency i. CapacityRule 601 1. Witness must have capacity to testify about ability to observe, record, recollect, narrate. 2. Very low standard. 3. Other Grounds for Exclusion (besides incompetency): a. Has minimum capacity to testify but its so hard to understand what hes trying to say; relevancy standard may not be satisfied. b. 403confusion and misleading of jury. ii. OathRule 603 1. Requires a witness to affirm her willingness to tell the truth, and understand what it means to tell the truth. a. Ex) if McDuffie had said I dont understand what it means to tell the truth, hes not competent to testisfy. b. Ex) If M had said Im a truthful purpose, that doesnt cut it. Must affirm. 2. Purpose: a. Make person liable for perjury if lies on the stand AND b. Impress upon the witness the importance of telling the truth. 3. United States v. Fowler [ stopped paying taxes. refused to swear/affirm to tell truth and court refused to let him testify at trial.] a. RULE: before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation. b. HOLDING: cant testify. 4. Raising hand and using solemn language isnt required. 5. No requirements to warn witnesses of penalties for penalties. iii. Personal KnowledgeRule 602 1. Witness must have actually perceived or observed the event theyre testifying about. 2. Exceptions: a. Expert witness doesnt have to have personal knowledge b. Admissions under 801(d)(2). 3. With hearsay statements, there are two levels of personal knowledge: a. D repeating hearsay has to have PK that statement was made AND b. Hearsay D must have PK of what he was talking about. c. Ex) Lissner says Plaintalk told me that Higgins is the one who did it i. Ls statement has personal knowledge of hearing Plaintalks statement ii. P had personal knowledge of actually seeing the bank robbery.

Direct and Cross- Exam Revisited I. Examination of Witnesses a. Mode and Order of Interrogation and PresentationRule 611 i. RULE: On direct examination, leading questions are not allowed. 1. What is a leading question? a. A question that suggests its own answer. b. Most questions that begin w/didnt you? are leading questions. -100-

Downloaded From 2. Rationale: a witness on direct-examination is more willing to acquiesce b/c theyre trying to help out lawyer on direct; theyre already more inclined towards you as their lawyer ii. EXCEPTIONS: 1. Where necessary to develop witness testimony OR a. Witness is young, mentally deficient or infirm. 2. Where witness is uncooperative OR a. Hostile witnesses 3. When the rule is more trouble than its worth OR a. Preliminary matters (address/job/other background) b. Matters not contested. 4. When memory seems exhausted; refreshing recollection a. Writing Used to Refresh MemoryRule 612 b. Baker v. State [Victim picked up some girls and then had shit beat out of him. Victim told PO that wasnt his attacker. PO says he cant remember that.] i. ISSUE: what latitude should we give counsel when D takes stand and says I dont remember? ii. HOLDING: is entitled to have officers memory refreshed iii. Often done orally w/attorney prompting witness, but its permissible to recollect w/anything (i.e. object, document, etc). Present Recollection Revived Writing is NOT evidence; just used as a prompt. Testimony becomes the evidence. Concern: witness will testify to something she doesnt really remember. Safeguards: 1) Court has discretion to decide that witness doesnt remember and to exclude witness testimony on that ground 2) Adverse counsel has right to inspect document and cross-examine on it c.

Past Recollection Recorded Document itself comes in as evidence doesnt ultimately go to jury) Concern: statement is hearsay; you h typical hearsay concerns. Safeguards (803(5)): 1) Witness must lack present recollec 2) Must accurately reflect knowledg 3) Witness must make/adopt statem 4) Witness must have done so while m was fresh in his mind.

Other Notes on Refreshing Memory: i. Normally, youre refreshing your own witness. ii. Its good practice to prep your witness before trial, so limits need some. iii. Witness Prep Notebooks 1. Used to get witnesses ready for trial. 2. Attorney Work-Product (reveal thinking of attorney) 3. Have fallen out of favor recently, b/c of the amendment below. iv. Under 612 Amendment, judge can now allow the other party to inspect a document used to prep a witness in advance of trial. v. Confusion as to whether judge can order lawyer to turn over notebooks. b. Scope of Cross ExaminationRule 611(b) i. RULE: cross-examinations are limited in scope to direct plus matters affecting reliability. -101-

Downloaded From 1. Must confine cross-exam questions to the material that was covered during direct 2. Some jurisdictions disagree w/this, but most hold this to be true. 3. Rule is totally manipulative (how does judge define scope of direct?) ii. Rationale: orderly presentation of case should be controllable by the leading attorney. iii. The right to cross-exam is a fundamental Constitutional right. iv. Read Degalos case from ACN c. Exclusion of Witnesses From CourtroomRule 615 i. RULE: permits you to order witness out of the courtroom prior to testifying. ii. Rationale: youre more likely to get a straight answer if witnesses dont have the opportunity to tailor their testimony to whats already been said in the case. iii. Four Exceptions to Right to Exclusion of Witnesses 1. Cant exclude an opposing party 2. Cant exclude an officer or employee of a party which isnt a natural person. a. Ex) estates, corporations, govt in criminal cases b. Partys attorney gets to designate the representatives 3. Cant exclude a person whose presence is shown by a party to be essential to presentation of partys case a. Ex) expert witness, investigator in criminal case, agent handling transaction etc. b. Have to ask for this 3rd exception to be utilized in advance (you cant violate the rule and then argue later than the witness fit into the 3rd exception) 4. Cant exclude people authorized by statute to be present a. Ex) crime victims b. VCAA statute entitles victims to be present unless testimony is materially altered by other testimony. iv. Rule 615 isnt self-executing. 1. You have to ask for it from the court. 2. Once you ask for it, you have a right to it, UNLESS it falls w/in one of the exceptions. v. Problem 7-A. 1. FACTS: E sues M for patent infringement, and E also gets order to exclude all witnesses. N is the expert witness, but before hes called to testify, E finds out that M has been rehearsing previous transcripts w/N. 2. Should court exclude? YES a. Parties are still reading materials from the trial. b. Reading the transcripts are the functional equivalent of sitting in at trial. c. Hear includes reading materials; still subject to the rule. 3. Does it fit an exception? a. NOT a party. b. NOT an officer/employee that isnt a natural person. c. He IS a key expert, but party didnt ask for exemption in advance of reading daily transcriptions. He read and then claim it applied. d. NOT covered by any statute. vi. What happens if witness violates exclusion rule? 1. Violation raises presumption of prejudice -102-

Downloaded From 2. Hold witness/attorney in contempt and punish him separately for what he did. 3. Exclude witness from testifying all together. (VERY harsh.) 4. Tell jury that witness violated ER (raises questions that testimony may be biased) II. Methods of Impeachment a. Method for Attack: i. Which purpose can evidence be introduced for? (e.g. to show bias, to show untruthfulness) ii. How can the impeaching fact be proved? 1. ASK: can you use extrinsic evidence? 2. Asking about on cross exam v. proving impeaching fact w/extrinsic evidence. b. Bias (interest, corruption, improper motive, coercion) i. Definition 1. Relationship between a party and a witness which might lead the witness to slant his testimony in favor of or against a party. 2. May be induced by a witness like, dislike or fear of a party, or by witness self-interest ii. Which rule governs impeachment on grounds of bias? 1. NONE. It is permitted by interstitial law of evidence. 2. Permitted by CL of evidence; plus broad interpretation of rules on relevance iii. Proponent MAY use extrinsic evidence to prove bias. 1. Another witness 2. Document iv. Applies to civil cases as well v. United States v. Abel [ indicted for robbing a bank. Cohort (E) testifies against . Ms testimony counters Es testimony. E wants to show Ms participation in secret prison group.] 1. ISSUE: can govt have E impeach M w/evidence of membership in secret prison group? 2. Must show only that Ms participation in this group might bias his testimony. a. Testimony would be slanted in favor of fellow members to protect organization. b. This was a violent, aggressive organization; tends to prove testimony is tainted. i. Type of group may be relevant to show bias (i.e. membership in AAA probably wont be received the same) ii. Helps show source and strength of bias. 3. Why didnt court allow evidence of penalties/name of organization? a. Court applies 403 analysis b. Information is more prejudicial than it is probative and shouldnt be admitted. 4. HOLDING: membership in organization tends to show bias by nature of organization. 5. Court allowed proponent to use extrinsic evidence (Es testimony) to prove bias. 6. Doesnt matter that evidence might also show that is a liar. c. Defect in Perception or Mental Capacity i. Ex) obstructed vision, witness takes drugs or has a psychological problem, etc. -103-

Downloaded From ii. NOTE: witnesses are NOT incompetent just because of their mental illnesses iii. Evidence is allowed w/in the discretion of the judge; judge looks at fairness to witness 1. Mental impairment mustve been at a time probatively related to relevant time period. 2. Must go to witness qualification to testify/ability to recall iv. Which rule governs impeachment on grounds of sensory/mental capacity? 1. NONE. It is permitted by interstitial law of evidence. 2. Permitted by CL of evidence; plus broad interpretation of rules on relevance v. Proponent MAY use extrinsic evidence to prove impaired sensory/mental capacity. vi. Impeachment method is subject to rule 403. 1. Must show that this evidence is unfair in some way. 2. Prove that jury will do something unfair w/the evidence. d. Disposition for Untruthfulness (is witness prone to lie?) i. Were trying to prove that the witness has a propensity to lie and may therefore be lying on the witness stand today. ii. Connections to 404 1. Falls w/in 404 prohibition (using character evidence to show propensity) 2. However, 404(a)(3) provides an exception for impeachment for Rules 607-609. 3. Therefore, you can use propensity argument for impeachment under Rules 608-609 iii. Ways to Prove: 1. Opinion or reputation testimony about Ws character from a character witness608(a) a. Allows a party to discredit a witness by putting on a character witness to testify that, in her opinion, the principal witness is untruthful. b. LOGISTICS: you have to wait for your turn; cant challenge right then. c. Allows opinion and reputation evidence only. d. Must show period of personal acquaintance. e. Doesnt have to come from community where witness lives; could come from work community as well. 2. Evidence of specific acts which suggests W is untruthful608(b) a. Aka. Non-conviction misconduct b. Elements: i. Specific act must be probative of truthfulness/untruthfulness ii. Attorney has a GF basis to believe that misconduct actually occurred. 1. Not explicitly laid out in the rule, but implicit. 2. Judge has discretion to throw out BF questions; he can make you demonstrate this in advance. c. Can opponent do anything to keep this stuff out? i. Argue question is too embarrassing/harassing for witnessR. 611(3) 1. Gives court power to control court room 2. Allows court to make sure witnesses arent humiliated/harassed -104-

Downloaded From 3. Works better if witness is a non-party (courts assume that parties, as parties, bring embarrassment upon themselves). ii. Argue evidence is too prejudicial and should be excludedR. 403 1. Properdisposition of untruthfulness 2. Improperconfusion/minitrial/overvaluation of evidence 3. Works best where witness is a party. d. Proponent may NOT use extrinsic evidence to prove specific act occurred i. HOWEVER, you may bring it out on crossexamination. ii. Rationaledesire to avoid distracting, timeconsuming mini-trial. iii. If your specific act evidence can also be used to prove bias, you can bring in extrinsic evidence. (So argue bias if you can). e. 608(b)(2) works like 405 i. Allows you to cross-examine character witness and prove he doesnt know well enough to know what hes talking about. ii. Ex) asking do you know about this too? in order to prove witness doesnt know well enough to make statement. f. United States v. Maske [charged w/conspiracy to distribute cocaine. Govt wants to bar from questioning co- regarding threats co- made and bias.] i. Count granted govts motion and was convicted. ii. s Claimargued cross-exam should be allowed b/c threats made by witness were probative of his truthfulness/untruthfulness. iii. Broadallows all past acts; Narrowallows only acts dealing w/lying. iv. Court adopts middle view of interpretation. 1. Reaches conduct seeking personal advantage by taking from others in violation of their rights. 2. Typically doesnt cover personal crimes involving violence, but doesnt explicitly exclude. v. RULE: must make claim that past bad act involved untruthfulness or an endorsement of untruthfulness vi. How are these acts probative of untruthfulness? 1. Purpose of threats was to get others to lie. 2. This tends to show disrespect for truth and a willingness to lie. vii. HOLDING: threat evidence is relevant and should be able to cross 1. If co- had no problem intimidating witness in previous trials, its hard to see why he could hesitate to obtain an -105-

Downloaded From advantage for himself in s trial by giving false testimony against . 2. Witness should also be cross-examined for bias (witnesses may be biased against b/c of fear of their safety) viii. HYPO: if P denies threatening witness, can proponent bring forth evidence that P did in fact threaten the witnesses? NO 1. Rule prohibits extrinsic evidence. 2. Proponent may only ask about it on cross. g. VIDEO HYPO: asked rape witness whether she was fired for stealing. h. PROBLEM i. Facts: W testifies that Ds car entered intersection after light was red. On cross, D wants to show W failed to report her tips on her tax return. ii. OBJECTION: improper use of Ws past bad acts (608(b)) iii. ANALYSIS: 1. Is underreporting of income probative of untruthfulness? a. Income taxes are an important govt document. b. Lying on an important document is probative. 2. must have a GF basis for believing underreporting occurred. a. Income has investigated and is willing to testify that she did substantially underreport. b. satisfies this element. 3. Should this be excluded on 403 grounds? a. Must show unfair prejudice to a party. b. If W and P were aligned in some manner, maybe this would hurt P unfairly, but thats not whats here c. Probably not, b/c only minor prejudice to party (P) d. If it was being used to impeach P, it might be different 4. Should this be excluded b/c too embarrassing under 611? a. W is just doing her civic duty here; shes not benefiting from recovery if P wins here b. Judge should be more protective of her b/c she doesnt have a personal stake. c. FOR EXCLUSION: its going to be embarrassing to W to have her credibility impeached w/evidence of tax cheat. -106-

Downloaded From d. FOR INCLUSION: W is the critical eyewitness; credibility is key and this is quite probative. 5. If W denies it, Can D prove with Is testimony? NO a. 608(b) mandates this. b. Attacking lawyer may NOT use extrinsic evidence. 3. Evidence of prior convictions which suggests W is untruthful609 a. Can be used in criminal and civil trials; and prosecution and defense b. Requirements: i. 609(a)(1) 1. Crime must be punishable by death/imprisonment > 1 year a. Generally equivalent of a felony. b. Look at what punishment could have been given, NOT what actually got. 2. Must pass special balancing test a. Witness other than -admissibility is subject to 403. b. --PV must outweigh prejudice (reverse 403/Gordon) i. Nature of conduct and its bearing on credibility (spectrum: perjuryheat of passion crimes) ii. Recency/remoteness (look at 10 yr scale) iii. Whether s record is otherwise clean iv. Importance of s credibility/testimony to case v. Whether conviction is similar to charged offense vi. Importance of getting s own testimony c. FOR TEST: make sure you discuss balance!! Discuss how each factor cuts on probativeness/prejudice. 609 (a) Probative value must outweigh prejudice Burden is on proponent Favors exclusion Burden is light b/c it need not substantially outweigh

403 Prejudice must outweigh probative va Burden on opponent Favors admission

ii. 609(a)(2) 1. Crime involved dishonesty or false statements -107-

Downloaded From a. Ex) Embezzlement, fraud, bribery, false statement, false pretense, perjury, counterfeiting, passing bad checks. b. Most theft crimes dont fall w/in 609(a)(2); courts have had some trouble w/this though. c. Punishment is immaterial (you could have a felony or a misdemeanor as long as it was false/dishonest) 2. Automatically admissible (no balance test required) c. RATIONALE: someone who is willing to disregard the law by committing a crime would also be likely to disregard the law by violating their oath. d. OTHER NOTES: i. Cant use to show propensity to commit crime (only to show witness propensity to lie) 1. Fear that jury will use for improper purpose. 2. Bad Man theory. ii. Why do we allow this impeachment evidence despite huge prejudice? 1. Otherwise, can take the stand and lead jury to believe that he/she has led a blameless life. 2. has a STRONG motive to lie (huge stakes for ) iii. Can only reference convictions w/in last 10 years 609(b) 1. Clock starts at latter of the date of conviction OR date of release 2. (Usually date of release unless sentenced to time served or not sentenced to time at all.) 3. Difficult to tell when clock stops b/c 609(b) doesnt specify an end date. Argue the end date based on whats best for you. 4. If its more than 10 yrs old, what must do? a. Convince judge that underlying facts and circumstances substantially outweigh the prejudice b. Give notice of intent to try to use conviction. iv. May not include pardoned/forgiven convictions v. JV convictions are typically NOT admissible (unless necessary for fair determination on merits) e. Problem 8-D i. FACTS: charged w/armed assault. brings up s prior convictions. ii. falsified a motel register; misdemeanor; fined -108-

Downloaded From 1. Doesnt meet requirements of 609(a)(1) b/c not punishable by death or more than one year. 2. DOES meet requirements of 609(a)(2) b/c it involves a false statement; punishment is immaterial 3. Cant be excluded under 403; its automatically admissible. iii. Unlawful sale of marijuana; 6 yrs imprisonment; suspended sentence 1. Doesnt meet requirements of 609(a)(2) b/c doesnt involve dishonesty or false statement. 2. DOES meet requirement of 609(a)(1); punishable up to six years 3. Judge determines whether probative value>prejudice (Gordon): a. Nature of conduct--selling marijuana; no special bearing on credibility; doesnt involve lying/deceit (-- probative) b. Recency/remotenesstwo years (+ probative) c. Whether s record is otherwise cleannot clean; conviction is NOT just a fluke crime (+ probative) d. Importance of credibility issues very importance; has no corroborating witnesses (+ probative) e. Whether its similar to the charged offensearmed assault; NOT similar; less prejudicial to (-- prejudice) f. Importance of getting s own testimonyvery important, b/c he has no other defense (+ prejudice) 4. Judge would probably let it in, but Cordray thinks he shouldnt. iv. Grand larceny; 10 yrs imprisonment; two-year sentence 1. Does NOT meet requirement of 609(a)(2) b/c courts hold that theft doesnt involve dishonesty or false statement. 2. Can argue to move theft from 609(a) (1) to 609(a)(2)? NO a. Can ask judge to look behind conviction at underlying facts/circumstances. b. Attempt to show that conviction rested on special facts that involved deceit/falsification.


Downloaded From Asking judge to treat crime like a 609(a)(2) crime instead of 609(a) (1). d. Ex) robbing a car by pretending youre a valet. 3. DOES meet requirements of 609(a)(1) b/c punishable by 10 yrs 4. Judge determines whether probative value>prejudice (Gordon): a. Nature of convictiongrand larceny (unlike selling drugs) DOES bear on credibility b/c theft involves stealth and dishonesty (+ probative) 5. Judge will probably let grand larceny conviction in. v. First degree armed assault; 15 yrs imprisonment; 5 yr sentence/parole 1. Does NOT meet requirements of 609(a) (2) b/c doesnt involve dishonesty/false statement 2. DOES meet requirement of 609(a)(1) b/c punishable by 15 yrs 3. Judge determines whether probative value>prejudice (Gordon): a. Same offense, so similarity is stronger (+ prejudice) b. Recency requirement; 8 yrs old (-- probative) c. Nature of conduct is violent; (-probative; + prejudice) 4. Judge would probably exclude. vi. Forging Bank Application; 10 yrs imprisonment; 2 yr sentence 1. DOES meet 609(a)(2) b/c involves false statement 2. Is this conviction more than 10 years old? a. Hard to tell b/c 609(b) doesnt specify an end date. b. Usually its easier than this to see whether its 10 yrs old 3. If its more than 10 yrs old, what must do? a. Convince judge that underlying facts and circumstances substantially outweigh the prejudice b. Give notice of intent to try to use conviction. 4. likely wont get this evidence in. s Cruel Dilemma i. If court decides to admit priors, what choice must make? 1. Whether or not to testify. 2. Risk of testifyingjury will learn of priors, think hes a bad man and convict him. -110c.


Downloaded From 3. Risk of NOT testifyingjury will think has something to hide and will assume is guilty. g. Procedure of 609 i. If chooses not to testify, can he appeal the judges in limine ruling to permit impeachment under 609? NO 1. Luce v. United States [ indicted for possession/conspiracy. Didnt testify at trial. Moved to preclude use of 74 conviction.] a. Lower CourtPrior was permissible to impeach. b. If he took the stand and denied prior involvement with drugs, he could be impeached by 1974 conviction. c. RULE: must take stand and testify in order to complain on appeal about judge allowing prior convictions in. d. HOLDING: prior conviction is admissible for impeachment purposes. 2. Why has waived his right? Judge cant go back and evaluate what happened during context of trial. didnt testify. Judges left w/very little to weight this against. Too speculative. 3. Luce ruling is really tough on the . ii. May bring up priors on direct (in effort to take sting out of it?) YES 1. PROtakes the sting out of some of the priors. 2. CONyou give up your right to appeal judges admission of conviction; you take risk that wouldnt have brought it up. iii. If testifies, how does let jury know of s prior crimes? 1. Normally, by asking about them on cross. 2. By introducing record of conviction (extrinsic evidence is okay). iv. What info may tell jury? 1. Name of crime, date of conviction AND 2. (In some courts) the punishment. 3. This is actually pretty limited information. Cant give gory details of the crime. v. Does 609 apply to witnesses other than criminal ? YES 1. Balancing is done under 403 rather than special test for 2. In doing 403 balancing test, you should use Gordon factors (or at least the ones that make sense to use). -111-

Downloaded From vi. How can you get prior convictions in as substantive evidence? 404(b); character evidence to prove prior acts. h. United States v. Lipscomb [ convicted of possession of heroin; in 1st trial, he was impeached on cross w/conviction of robbery 8 years ago.] i. pled not guilty at earlier trial; jury found him guilty; shows didnt tell the truth. ii. ISSUE: whether court can inquire into background facts of conviction. iii. RULE: DC has discretion on when to inquire into facts/circumstances underlying a prior conviction and how extensive an inquiry to conduct. iv. NOTE: judges DONT have discretion to disallow impeachment for crimes involving dishonesty and false statements. v. HOLDING: DC has discretion. 1. Time/$$ arguments dont mandate DC to inquire into facts 2. Burden of gathering additional information is slight. 3. No delay is present if govt gets it before trial. 4. Information helps both parties. i. Exam Question i. Is conviction admissible under 609(a)(2)? 1. Did crime involve dishonesty or false statement? a. Is it on the standard list? b. If not, do the underlying facts show dishonesty/falsity? 2. If either, conviction is automatically admissible. ii. Is conviction admissible under 609(a)(1)? 1. Was crime punishable by more than 1 year? 2. If so, who is the witness to be impeached? a. --special 609(a) balancing i. Does PV outweigh prejudice? ii. Gordon factors b. Other403 balancing i. Does prejudice outweigh PV? ii. Gordon factors e. Prior Inconsistent StatementsR. 613 i. Permits an impeaching lawyer to ask a testifying witness about a prior out-of-court statement that is inconsistent. ii. Rationale: witness said something different before; we dont know which statement to believe. iii. Elements: 1. Prior statement must be inconsistent w/witness testimony a. Courts are pretty easy-going in finding inconsistency.


Downloaded From b. McCormicks Testcould a jury reasonably find that a W who believed the truth of facts testified to wouldve been unlikely to make prior statement of this tenor? c. Ex) direct contradiction, later adding/leaving out something material, silence when it wouldve been natural to speak. 2. Proponent must disclose the prior statement or its substance upon request a. Purpose: prevents proponent from exaggerating what was said in prior statement or take it out of context. b. Gives other side ability to rehabilitate their witness (put it in context or explain away some of the damage) 3. Proponent must have a GF basis for asking the question iv. Use of Extrinsic Evidence613(b) 1. You may use extrinsic evidence to prove that a witness was inconsistent if: a. Witness has the opportunity to explain/deny AND b. Opposing party has opportunity to interrogate witness on inconsistency. 2. 613(b) gives judge discretion to allow extrinsic evidence even if these conditions arent met if the interests of justice require 3. NOTE: proponent may not use extrinsic evidence if the matter is collateral. a. This is an exception to general rule that extrinsic evidence is allowed. b. We will discuss this in conjunction w/contradiction. v. Problem 8-F. 1. FACTS: P claims D struck him w/ shovel. W testifies that D struck P. D cross-examines, but doesnt ask about prior statement. D calls M, who testifies that W told him that he didnt actually see the blow being struck and P may have thrown a rock at D. 2. Ps Claim613(b) requires that W have a chance to explain. 3. Can you bring this in through extrinsic evidence? a. 613(a)must give a copy of statement/disclose substance to opposing counsel b. 613(b)must give witness opportunity to explain/deny and opposing counsel must have opportunity to interrogate witness on the inconsistency. 4. HOLDING: judge will probably refuse the extrinsic evidence. vi. United States v. Webster [ convicted of aiding/abetting bank robbery. Ks (robber) testimony was inconsistent.] 1. claims all this evidence will come in as substantive evidence. 2. RULE: you cant call a witness just to impeach him in the hope that the jury will use it for its improper purpose. This is in bad faith and not permissible. 3. HOLDING: here, no bad faith. 4. 403 Analysis: a. Proper Purposeunder Ks credibility, by showing hes been inconsistent b. Improper Purposeas proof of what it asserts; W was involved in the crime. vii. Other Notes 1. You MAY impeach your own witness (607) if you call on your witness in good faith. Contradictions -113-


Downloaded From i. Witness said something that is simply not true (witness said it was sunny; it was actually raining) ii. ISSUE: when can you use extrinsic evidence? iii. No rule applies. Only common law. iv. General Rule: Can only use extrinsic evidence to contradict if matter is NOT collateral. 1. A matter is non-collateral when its important enough to warrant spending time on it. 2. Evidence must be relevant independent of its contradicting effect. 3. Two Situations: a. Evidence contradicts and tends to prove a substantive or impeaching point (ok) i. If evidence is normally admissible, you can just prove it (i.e. you dont need contradictionyou probably wont even think about contradiction) ii. If evidence is normally inadmissible, you can contradict the witness w/the evidence, if witness has opened the door by testifying on matter 1. Cordray doesnt think that the impeaching lawyer should be able to open the door. Witness has open the door on her own. 2. Ex) F says shes never been in an accident. G says yes you have 5 other accidents. Normally, G s evidence isnt admissible (under 404), but its a noncollateral matter and will be admitted b/c F opened the door. Fs counsel will tell her not to testify that generally shes a careful driver. b. Evidence only contradicts and is not relevant for any other purpose (not ok) i. (i.e. if the jury believes the extrinsic evidence, they will think the witness was lying b/c he couldnt be innocently mistaken) 4. EXCEPTION: where contradicting facts cast doubt on entire thrust of Ws testimony (if we think hes lying here, hes probably lying about everything.) v. Most of the time, evidence is non-collateral. vi. Impeachment device of contradiction is important in 2 situations: 1. When evidence isnt admissible for other purpose (i.e. 404(b). However, b/c evidence is contradictory to witness testimony, it will be admissible.) 2. Evidence only contradicts, but overwhelming trust of Ws testimony casts on entire case. vii. Problem 8-G. 1. FACTS: O charged with robbery and raises alibi as a defense. A testifies that he operates the Jolly Roger and that O was in there for entire day. called K, who testifies that O told him he had been in Seattle. S, a waiter, says he never say O in Jolly Roger. 2. claiming this is collateral and that is trying to distract the jury. 3. How does Ks testimony contradict A? a. If O had been at Jolly Roger every night, then Ks testimony contradicts this b/c O told K he had been in Seattle. -114-

Downloaded From b. This isnt counterproof that is relevant to some independent substantive or impeaching point. If jury believes K, will jury think A must be lying b/c he couldnt innocently be mistaken? a. Problem w/timing. If K saw O in Seattle at the end of June, it doesnt mean he wasnt in Portland on July 14th. b. This is a collateral matter (dont want mini trials on nonsense). can ask A about his testimony, but cant use extrinsic evidence of K to contradict. How does waiters testimony contract Ardiss? a. Waiter said he never saw O, but A said that O was a regular who had been there every night for a few weeks. b. Is the counterproof relevant to some independent substantive or impeach proof? i. Yes, ruins alibi (element of crime is that did it). Here you wouldnt think of waiters testimony as contradicting. Must lay foundation that waiter could have been in a position to recognize regulars. ii. Non-collateral, not trivial=admissible. Assume waiter wasnt working at 7pm on July 14, but often worked the same shift as A. a. Counterproof that goes to independent or impeaching proof? NO i. Its not relevant, merely contradicts. It does impeach A, but only b/c it contradicts him. ii. Need a bias, or show prior conviction, past bad act suggests untruthfulness, or something that goes to sensory or mental capacity. iii. Also, A has opened the door so prosecutor can use extrinsic evidence but not for 608(b) purpose. Past bad act. iv. When using 608(b) for contradiction impeachment, 608(b) deems any point trying to be made under it collateral so that you cant extrinsic evidence to prove that point. v. RULE: you cant use extrinsic evidence under the contradiction method of impeachment to get around the extrinsic evidence bar in 608(b). If the jury believes waiter, will the jury think that A must lying, b/c he couldnt be innocently mistaken? a. Example of a situation that even though evidence merely contradicts, it goes to heart of As testimony and court will allow EE so that waiter can testify. a Witness





III. Repairing Credibility of a. Requirements: i. Witness credibility must have been attacked. (see Medical Therapy below) ii. The rehabilitation must be at the point of attack. iii. ASK: is rehabilitating evidence logically relevant to explain/refute the impeaching attack? b. Common Examples: i. Testimony by his expert to the effect that shes being paid for her services. ii. Evidence that witness has been convicted of crimes. iii. Evidence that witness has entered into a plea bargain. -115-

Downloaded From iv. Evidence of connections/affinities that has with witness Evidence of Ws Good Character (for truthfulness)Rule 608(a) i. ASK: is rehabilitating evidence logically relevant to explain/refute the impeaching attack? ii. Is evidence of Ws good character for truthfulness relevant to rebut an attack based on. . . 1. Witness reputation for untruthfulness (608(a))? YES 2. Witness prior convictions (609)? YES, prior convictions are meant to show the jury that W isnt credible b/c they have a disposition for untruthfulness. 3. Witness prior misdeed (608(b))? YES, prior misdeeds are meant to show the jury that W isnt credible b/c they have a disposition for untruthfulness. 4. Witness bias? MAYBE; only if the bias evidence suggested W was lying (e.g. suggested that W was corrupt/bribed; wouldnt rebut the fact that W is s cousin) 5. Witness prior inconsistent statement? MAYBE; only if evidence suggests that W was dishonest (e.g. suggested W was fabricating, not just forgetting) iii. United States v. Medical Therapy Sciences [ convicted of filing false claims. R was a trusted employee and was an un-indicted coconspirator who testifies against .] 1. Can you ask your own witness on direct about an impeaching attack? YES a. If youre anticipating the impeachment, you can fend off what youre expecting b. Similar to prior convictions c. Courts routinely allow the calling lawyer to bring out on direct impeaching facts they anticipate the other side will use. 2. If didnt say anything on cross about the witness impeachment problems, could them introduce evidence to rehabilitate witness? NO a. Credibility of witness hasnt been attacked. b. RULE: you must have an attack from an opposing party. You cant set up your own attack and then come back and rehabilitate if opposing party doesnt attack. 3. s Claimtrial court erred in permitting character witness to bolster Rs credibility. Given that R is the only one perpetuating the fraud, this is key to s case. 4. s Claimthey were only anticipating defense impeachment, so jury wouldnt think they had something to hide. Attempting to take the sting out. 5. HOLDING: rehabilitation was proper a. Judge couldve properly characterized s treatment of R as an attack w/in meaning of 608(a). b. Cross-examination concerning bias couldve been characterized as an attack. d. Evidence of Ws Prior Consistent Statement (for rehabilitation)Rule 801(d)(1)(b) i. TomePre-motive rule. The prior consistent statement must have arrived pre-motive (before the motive to lie arose) in order to be admissible. ii. RULE: you cant use the prior statement if its tainted by the same improper motive that hes being charged w/at the trial. iii. Can use to rebut a suggestion that W has forgotten or made it up. iv. 403 Problem? If admissible for rehabilitation but not as substantive proof, theres a 403 problem c. -116-

Downloaded From v. Problem 8-I. 1. FACTS: F set-up in bathroom w/C and A b/c theyre suspected of conspiring to sell heroin. C is found w/heroin and pleads guilty. A is charged w/selling, but no hard evidence. Both A/C testify that C sold it to T. T said woman in black & white dress sold. 2. As Claimimproper rehabilitation a. Suggests that T didnt remember which woman had the sample b. Suggests that T made it up b/c he had no evidence on A. 3. Is Ts prior consistent statement relevant to rebut charge that he didnt remember which woman had the sample? a. YES, it shows he probably does remember, since he said the same thing before. b. Evidence of Ts tendency of truthfulness would NOT rebut b/c theyre not implying that hes lying at this time. 4. Is Ts prior consistent statement relevant to rebut the charge that he is making this up b/c they have no other physical evidence against A? a. Assume T made his prior statement before the search? YES, Ts motive to lie arose only after he realized that no drugs were found on A. b. If T made his prior statement after search? NO, T already had motive to lie. I. Lay Opinion TestimonyRule 701 a. General i. Rule 701 has largely done away w/the distinction btwn fact and opinions. ii. Rule allows lay people to give their opinions if they satisfy the following requirements. b. Requirements: i. W must have first hand knowledge 1. Restates requirement of 602 2. Easy prong to pass b/c you have to pass it anyway under 602. ii. Ws opinion must be rationally based on that knowledge iii. Ws testimony must be helpful in resolving the issues iv. CAVEAT: the testimony must not be based on scientific, technical, or specialized knowledge such that the witness should be treated as an expert. (If this is an expert, use special expert rules) c. Ws testimony must be more concrete/specific rather than general i. The more vague/conclusory, the more problematic. ii. Court recognizes that, in order for Ws to testify in a way thats comfortable to them, they must be able to give some opinion testimony. d. Lay testimony is allowed for following: speed, height, age, size, heat, cold, weight, time, value, fear, anger, excitement, intoxication, etc. (p. 597). e. Film Clip Problem i. FACTS: s burglarize warehouse. 1 pulls gun on PO. PO is unarmed w/other 2 under his arm. 2 says let him have it. 1 shoots and kills PO. Both s are tried w/his murder. ii. Is this a hearsay problem? NO. Admission (Bentleys own statement offered against him.) iii. ISSUE: is it proper for to ask other PO what 2 meant by let him have it? 1. First hand knowledge? YES. Statement was made there w/him present. 2. Rationally based? YES. He was watching and he saw the facial expressions, etc. -117-

Downloaded From 3. Helpful testimony? a. YES: since statement is ambiguous, W might have insight on what it meant given facial expressions, body language, etc. b. NO: based on the circumstances, this Ws mental filter wasnt fully accurate; his impressions based on the statement probably arent reliable. Not helpful b/c jury already has everything they need to draw their conclusions. iv. HOLDING: judge should probably NOT have allowed the question v. Courts are more likely to allow impressions if they go to a tangential issue of the case. f. Problem 9-A. i. FACTS: C prosecuted for firebombing cars. Cs girlfriend testifies that he told her he knew someone who would blow up cars. C showed GF news article about bomb. GF say it was her impression that C was involved in explosives. ii. Impressions arent very helpful to the jury. iii. ISSUE: is it enough for GF to describe the facts? Or does her impression add something as well? iv. HOLDING: likely will be excluded b/c its not helpful 1. Jury has all the facts 2. Goes to core of fact (NOT a tangential issue). g. Problem 9-B. i. FACTS: auto crash where P backs car out of driveway while D collides; P sues D claiming it was his fault. P calls H, who was sitting on his porch watching the accident. ii. D was going more than 35 mph. 1. First-hand knowledge? YES, he saw the car traveling, despite the fact that he didnt see the speedometer. 2. A layperson CAN estimate speed. iii. Strong smell of pot. 1. First-hand knowledge? YES, he was there and could smell it. 2. Rationally based? Lawyer will have to show that he knows what pot smells like and could draw the current smell to that past smell. iv. D had a real guilty look like he was afraid he was going to lose his license or get sued. 1. 1st part (real guilty look)layperson can testify about fear and anger 2. 2nd part (like he was going to lose his license)too speculative 3. If we didnt allow 1st part, how would we convey that visual image to another? (Can you describe the facial characteristics of a guilty look to a jury?) v. The car was totaled, whole right side of car was damaged and it was worth about $5k 1. The car was worth about $5k a. Standard list value, but this probably refers to general descriptions (looks like it was worth a lot of money, etc.) b. A precise dollar amount probably wouldnt be admitted. If he can give a precise dollar amount, he should probably be admitted as an expert. 2. The car was totaled a. Technical sensecars damage is greater than the value of the car (need expert) b. Colloquial sensethe car was badly wrecked (ok) -118-

Downloaded From Proponent must clarify that the W is using this in the colloquial sense. 3. The right side was damaged. a. Okay to admit. b. Witness just repeating the facts. II. Expert Witnesses a. Qualification and StandardRule 702 i. Who can be an expert? 1. Witness w/ formal education, training (i.e. medical doctor, engineer, etc) a. Experience not necessary nor is it necessary to belong to a special area or field; skilled witnesses b. Ex) witness specialized as a doctor, but not a gynecologist is acceptable to testify as to stillborn fetuses and whether they breathed outside the mother 2. Witness with experience (skilled witness) (i.e. mechanic, etc) a. Life experience, not necessarily formal training. ii. When may an expert testify? 1. Can testify when it will assist the trier of fact AND 2. Must be based on sufficiently reliable 3. Permits testimony on a subject that jurors will be familiar w/as long as helpful iii. Qualifying the witness b. Basis for TestimonyRule 703 i. Three types of Data an Expert May Rely On: 1. Data/facts experts learn before hearing (i.e. physicians testimony based on physical exam of ) 2. Data/facts expert learns at hearing (i.e. listening to witness at the trial or through hypothetical questions) 3. Outside info reasonably relied upon by experts in the particular field (i.e. statements made to the expert, treatise) ii. Information need not be admitted or admissible into evidence iii. Expert can give evidence that is inadmissible (hearsay statements) to describe his opinion iv. When the expert has relied on outside information, what is the risk? 1. Jury may learn of facts that are substantively inadmissible, b/c the expert reasonably relied on them in forming her opinion. 2. Expert is only allowed to describe the inadmissible evidence to explain the basis of her opinion if the probative value substantially outweighs the risk of prejudice (reverse 403). v. TEST: 1. Should the judge admit the experts opinion? a. Is the expert qualified? b. Is the basis adequate? c. Is the expert offering her own opinion? i. If Ws entire basis is relaying someone elses opinion, then the judge should not admit the expert. ii. If W isnt adding anything to the trial and isnt employing her own expertise, then let her go. 2. May the proponent have the expert describe the basis for her opinion? a. Is the evidence otherwise admissible? i. If yes, then expert may describe it. c.


Downloaded From ii. If no, then expert may only describe it if PV substantially outweighs risk of prejudice (reverse 403). vi. Problem 9-C. 1. FACTS: After operation, P had problems. Evidence showed problem caused by air bubble. K testifies that air bubble was probably caused by removal of tube. Testimony is based on doctors note written on chart. 2. What kind of bases does she have for her testimony? a. Note on chart: outside information of a type reasonably relief on by experts b. Physical examination: facts learned before the hearing 3. Should the judge admit the experts opinion? a. Is the expert qualified? YES b. Is the basis adequate? YES, charts are typically relied upon by doctors. c. Is the expert offering her own opinion? i. Arguably, W isnt adding any of her own testimony and is just relying on anothers testimony. ii. Might argue that W is adding additional information. 4. May the proponent have the expert describe the basis for her opinion? a. Is the evidence otherwise admissible? YES i. Here, probably would come in as a business record, despite the fact that its hearsay. vii. Problem 9-D. 1. FACTS: Car accident. Ds BAC taken w/o her consent and found to be 0.24% alcohol. 2. What kind of bases does she have for her testimony? a. Outside evidence. 3. Should the judge admit the experts opinion? a. PROBLEM: his opinion is based entirely on inadmissible evidence; were circumventing the states implied consent law. b. Judge probably shouldnt allow the evidence at all. 4. Should the be able to describe the basis for his opinion? NO a. Chart is inadmissible, so they need to complete a reverse 403. b. Prejudice is just way too high here. If jury finds out that she even had the test done, theyre going to use it for its substantive purpose. Opinion on Ultimate IssueRule 704 i. Allows lay and expert testimony about an ultimate issue. ii. Two exceptions: 1. CL--Experts may not testify about the proper application of a legal standard. a. i.e.) W cant formulate its answers in precise working of the legal standard itself b. Ex) Cant say D had the legal capacity to make a will, but can say he knew the nature of his bounty) c. We dont want experts speaking to jury in precise legal jumbo. d. Wed rather have expert be more description and then let jury decide. -120-


Downloaded From 2. 704(b)Expert witness may not opine on whether the in a criminal case had the requisite mental state. a. Ex) expert cant come on the witness stand and say hes insane b. Expert may only explain the pertinent diagnosis d. Presentation of ExpertsRule 705 i. When can the expert give her opinion? 1. Right away (even before disclosure of the underlying facts/data) 2. RULE: expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts/data, unless the court requires otherwise. ii. When can/must the expert disclose the facts or data which underlie her opinion? 1. She MAY disclose facts on direct 2. If asked, she MUST disclose facts on cross-exam iii. What if the underlying facts are inadmissible evidence, can she describe them on direct? 1. Only if the PV substantially outweighs prejudice (reverse 703). 2. Reason for asking expert to explain underlying data is to help jury evaluate the evidence 3. Jury will/may learn of fact which are substantively inadmissible b/c the expert reasonably relied on them in forming her opinion. iv. Asking Expert Directly v. Hypothetical Questions 1. Direct is more efficient than drawn out hypos 2. Eliciting evidence through hypos is cumbersome 3. In hypos, lawyer does most of talking, but it is the experts testimony that is most important. e. Court Appointed LawyersRule 706 i. Expert is to advise parties of his findings and submit to deposition ii. Its rare for court to appoint. 1. Judges are reluctant to interfere in the presentation of evidence 2. Problem of compensating these experts. f. Standard for Admission i. ISSUE: whether and to what extent courts should allow experts to testify as to scientific evidence or theories, even if the expert is extremely qualified. ii. Frye Test 1. Scientific evidence was admissible only if the principle upon which it was based had gained general acceptance in the relevant scientific community. 2. Judge defers to scientific communitys opinion on whether science is reliable. a. Judge determines whether opinion has gained general acceptance. b. Judges role is very deferential, however. 3. Under Frye, anything new or innovative was excluded in that it wouldnt have had time to gain general acceptance. 4. PROBLEM? After FRE were enacted, courts were split as to whether Frye was still valid. iii. Daubert v. Merrell Dow Pharmaceuticals [s are children w/birth defects. Evidence from physician that the use of Benectin doesnt cause birth defects. Other evidence shows it does.] 1. ISSUE: is Fyre test still valid? (NO, it was superceded by 702s more flexible approach) 2. Judge serves a gate keeper role in determining whether to admit scientific evidence. -121-

Downloaded From a. Judge must ensure that evidence is relevant AND reliable. b. Under Frye, the judge deferred to scientific community. Under Daubert, the judge decides for himself whether science is reliable. 3. Requirements: a. The science itself must be valid AND i. Both the scientific theory and technique application must be reliable ii. Factors to determine validity 1. Whether the theory has been or is capable of being tested 2. Whether theory has been subject to peer review and publication 3. Know or potential rate of error 4. The existence and maintenance of standards controlling the techniques operation 5. Whether the theory has been generally accepted in the scientific community (Frye). iii. Addl Common Factors (ACN): 1. Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation 2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. 3. Whether the expert has adequately accounted for obvious alternative explanations. 4. Whether expert is being as careful as he would be in his regular professional work outside his paid litigation consulting. 5. Whether field of expertise claimed by expert is known to reach reliable results for the type of opinion the expert would give. iv. In Frye, the judge focused exclusively on 5th factor. In Daubert, 5th factor remains a factor, but it isnt the decisive factor. b. The evidence must fit the case so that it assists the trier of fact i. This element stems from 702 ii. It must fit the case, or be relevant. c. Despite the fact that the evidence is reliable, it is still subject to exclusion under 403 if its too prejudicial, misleading, time-consuming, etc. iv. RULE 702 Amendments: 1. Drafted in response to Daubert; Purposehelp trial judge to work w/Daubert 2. Reliability Requirements: a. Testimony is based upon sufficient facts/data b. Testimony is product of reliable principles/methods AND c. W must have applied the principles and methods reliably to the facts of the case -122-

Downloaded From v. Kumho Tire Company v. Carmichael [s tire blew out, killing one/hurting others. Expert in tire analysis found that 2/4 symptoms of overinflation were missing, indicating a defect in tire.] 1. ISSUE: does Daubert apply to only scientific evidence or does it also apply to technical evidence and other specialized knowledge? 2. Dauberts basic gate-keeping obligation works to ensure that any and all scientific testimony is not only relevant, but also reliable. 3. RULE: Daubert extends to ALL expert testimony, not just scientific. 4. What was the courts reasoning? Why apply Daubert? a. No fine line between scientific and technical evidence b. Courts belief that all evidence should meet this standard of reliability if its going to have this stamp of expert approval. 5. What factors should judge consider in assessing whether technical evidence is reliable? a. Any of the Daubert factors that is pertinent (may standard). b. Any factors that might be helpful in light of the issue, experts particular expertise and the subject matter of the testimony (see ACN notes above). 6. HOLDING: experts testimony was NOT sufficiently reliable; court grants discretion to lower courts analysis of whether evidence was sufficiently reliable. 7. APPLYING THE TEST a. What witness qualified as an expert? YES i. He had training/experience in the field of tire blowout. b. Would expert evidence assist trier of fact in determining abuse/defect? YES c. Does the evidence meet the reliability standards of 702? i. Testimony must be sufficiently based upon reliable facts/data? ii. Testimony must be the product of reliable principles and methods 1. Court acknowledges that its okay to use visual/tactile methodology to determine wear-down of tire. 2. Four factor test sucks. Its kind of unique to this expert. iii. W must have applied principles and methods reliably to facts of case. 1. Ws method was applied inconsistently. 2. It seems like he found more than three indicators of abuse, despite the fact that he claims there was a defect. 8. In reviewing a district courts decision to admit or exclude scientific evidence, what standard of review should the appellate court apply? Abuse of discretion. vi. Was the decision to switch the Daubert standard a good one? 1. Judges dont have training in these highly technical areas. 2. ISSUE: how can judges w/no experience in these areas make a decision about whether the evidence is valid? 3. Frye allowed judge to stay out of this science, and left the decision to science community 4. How does judge make well-informed decision? -123-

Downloaded From a. Let attorneys duke it out w/their experts. b. RULE 706permits court to appoint a neutral expert to help him out. i. PROBLEM: who pays for this expert? 1. In civil cases, this gets tacked onto the partys bills. 2. In criminal cases, it comes out of judiciary budget. ii. PROBLEM: who appoints these experts? 1. Its going to matter which camp these experts come from. 2. How are these selected in a way thats fair to both parties? 3. Ask parties to submit lists (pick one that appears on both lists OR start narrowing down until parties agree) iii. Rarely done b/c of these problems. vii. Current Applications: 1. Black boxes 2. Fingerprinting a. ISSUE: is the evidence sufficiently reliable? i. Close to 50% of the PO who take a certification test, flunk it. ii. POs are NOT required to pass a certification test, however. iii. FBI has a higher standard (which is what was used in Plaza) b. Assumption is that fingerprints are unique and permanent (no proof of this) c. US v. Plaza [ challenged use of finger evidence] i. HOLDING: flunked Daubert; found fingerprint evidence to be insufficiently reliable. ii. Judge Polluck handed down the decision (hes first-rate) iii. Its too subjective and too little training to hold that there is a match. iv. Everyone went crazy and Polluck reversed himself. III. Privileges a. Introduction i. Purposeprotect certain societal relation and values; encourage communication 1. Seems weird b/c the rest of rules are designed to promote truth in fact-finding process 2. Designed to protect communications w/in relationships. ii. Privileges arent codified by FRE iii. Rule 501 1. Where the state law supplies the rule of decision (i.e. diversity cases), you use the state privilege rule. 2. In cases where federal law supplies the rule of decision, you use the federal common law of privileges as interpreted by the courts. b. Attorney-Client Privilege i. Rationale: if attorney can repeat client information, client wont share that info with attorney 1. Humanisticit seems morally wrong to betray your clients confidence to police -124-

Downloaded From 2. Instrumentalistthis kind of privilege will help serve a desirable end a. Clients would be more secretive if they knew attorney could/would tell police. b. Adversary system only works if attorney can serve as an advocate for their client and client can communicate freely w/their attorney. 3. Downside? Youre going to lose information that might be helpful. May serve as an obstacle to the investigation of the truth. ii. RULE: the privilege applies to confidential communications made for the purpose of rendering professional legal services to the client. iii. Elements: 1. Privilege only applies to professional services a. Problem 12-B. i. FACTS: W must stay in contact w/attorney. W fails to appear before court. Govt asks N if he told W about time/place of trail ii. Can N claim attorney client privilege? NO 1. Trial date is non-legal services. 2. Lawyer here is just serving a notice requirement; just serving to transmit information to the client from the court. b. Does privilege apply when attorney is: i. Transmitting information to client from the court? 1. NO, lawyer isnt providing professional legal services (shes just passing along info. That she could get on her own from the court) ii. Giving business or investment advice? 1. NO, its not legal advice. iii. Giving BOTH business and legal advice? 1. ONLY if the advice is primary legal; judgment call for court (does legal advice predominate?) c. Examples of non-legal services: accounting, shipping agent, scrivener, investigator, negotiator, business partner, attesting witness 2. Privilege only covers communications between attorneys and clients a. Problem 12-C i. FACTS: M has been drinking; M tells lawyer (F) hes had some drinks. M drives away drunk and causes accidents. ii. Can F claim attorney client privilege? NO 1. Physical characteristics are NOT covered by A/C privilege. 2. These matters are observable by anyone who talked to C. 3. Cs statement Ive had a few drinks is NOT covered by privilege b/c it hasnt anything to do w/rendering legal advice b. Observations about clients appearance, dress, conduct or demeanor are NOT covered by the privilege. -125-

Downloaded From i. These things are NOT communications. They dont have anything to do w/what the client was telling lawyer in order to get legal advice. ii. If these things are apparent to everyone and theyre not part of whats being communicated, then theyre not w/in the privilege. c. Attorneys identification of a clients photograph, belongings or handwriting is NOT covered by the privilege. i. These things are NOT communications, unless they are derived from a confidential communication. d. Lawyers comments are also usually covered. e. Problem 12-D i. FACTS: k was convicted of tax evasion; k delivered records to H. Govt wants records. H claims A/C privilege. ii. Can H claim the attorney client privilege? NO 1. You shouldnt be able to immunize your documents by handing them to your attorney. f. Does the privilege apply to records the client has given the attorney? i. Documents created for purposes of communicating w/the attorney ii. Documents that are protected if it had remained in clients possession (i.e. a document that has a 5th Amendment right against self-incrim) g. People v. Meredith [s convicted of murder/robbery. Theory that S conspired with M. Attorney is claiming that the wallet information was obtained through privileged communication.] i. Evidence: told his lawyer where he could find the wallet. ii. Attorneys disclosure to investigator didnt waive A/C privilege iii. Typically, privilege extends to information A collected as a result of communication w/C iv. ISSUE: whether privilege encompasses a case in which defense, by removing, or altering evidence, interferes w/prosecutions opportunity to discover evidence. v. RULE: whenever defense counsel removes/alters evidence, statutory privilege doesnt bar revelation of original location or condition of evidence in question. vi. The information about the wallet is privileged information. vii. RULE: Privilege applies to physical evidence that the attorney learned about as a result of the clients confidential communication. viii. Does the privilege apply to physical evidence that the attorney learned about as a result of the clients confidential communication? 1. yes it is a communication -126-

Downloaded From ix. what if the attorney removes or interferes with the evidence? 1. the privilege no longer applies 2. the attorney must turn it over to the prosecution within a reasonable time x. Why do they lose the privilege upon removing/altering the evidence? 1. Prosecution didnt get a chance to figure out that the victims wallet is missing and trace it to Scotts house. 2. We dont want to have prosecution and defense raising to the critical evidence 3. When attorney removes it, loses opportunity to find it. xi. HOLDING: location of wallet is admissible 1. If A leaves evidence alone, A/C privilege applies 2. If A removes/alters evidence, original location information loses its protection AND attorney must turn it over to prosecution w/in a reasonable time. xii. Lawyer cant destroy/conceal evidence (disbarred; may face jail time) xiii. Why would A ever remove evidence knowing theyd have to turn it over to prosecution? 1. Tactical reasonyou look like star who turned over evidence. 2. If evidence may exonerate your client, you may need to check it out. (ASK: is it worth the risk?) 3. Privilege only protects confidential communications a. A/C privilege doesnt cover public statements. b. Who falls w/in circle of confidentiality? i. Ministerial employees, clerks, secretaries, messengers, etc. ii. Why? These people are charged w/relaying communications of attorney iii. United States v. Kovel [ is a non-lawyer employed by a law firm] 1. ISSUE: does privilege applies to nonlawyer employed by frim. 2. Privilege extends to those charged with relaying communications to an attorney; their help is indispensable to attorneys work. 3. Accountant serves as a translator for attorney. 4. RULE: communication must be made in confidence for the purpose of obtaining legal advice from a lawyer. 5. If advice isnt legal advice, or if advice is accountants and not lawyers, then privilege isnt applicable. 6. ASK: is the 3rd party helping render legal advice (covered) OR setting up an outside non-legal service (not covered)? -127-

Downloaded From 7. HOLDING: privilege applies to accountant. iv. Does privilege apply to joint clients? 1. One attorney represents two people w/common interest in the same matter. 2. Privilege applies if they consult the same attorney on a matter of common interest. 3. IMPACT: one client may speak while another is present w/o destroying the privilege. v. Does privilege apply to pooled defenses? 1. Each client is represented by a different attorney, but youre all working together on the defense. 2. Privilege applies if they have a common interest in the matter being litigated. 3. IMPACT: clients w/separate attorneys can pool information w/o destroying the privilege. What if theres some leak/eavesdropper who overhears communication? i. Suburban Sew v. Swiss- Bernia [Anti-trust violation. s searched dumpster in s parking lot. s found letters between and lawyer.] 1. Trash isnt protected by 4th Amendment 2. Old belief that it was Cs duty to protect its secrecy. 3. Letters were intended to be confidential and the letters wouldve been protected through normal means of discovery. 4. ISSUE: does privilege extend to eavesdroppers and others who obtain a privileged communication through improper means? 5. RULE: privilege remains in place only if A/C took reasonable precautions (ASK: did C attempt to protect its secrecy?). 6. TEST: look at s efforts to maintain confidentiality. a. Effect on A/C communications if privilege isnt allowed. b. Ability of A/C to protect against disclosures. 7. HOLDING: privilege doesnt apply here a. Not a high risk that lots of Ts will do this trash searching b. A/Cs may protect themselves by shredding evidence. ii. HYPO: C telephones his lawyer at home after hours and tells her over the phone that he just killed somebody. As child listens to the conversation on an extension phone. Does privilege apply? 1. ASK: did A took reasonable precautions to protect info? -128-


Downloaded From 2. If A/C didnt hear phone picked up, then probably still protected. 3. HOLDING: probably still protected. iii. HYPO: C is on a pay phone and someones in line behind him and says I just killed someone. Does privilege apply? 1. C probably didnt take reasonable precautions to protect. 2. HOLDING: privilege probably doesnt apply. iv. HYPO: a letter from a client is stolen from her lawyers unlocked office. Does privilege apply? 1. Probably took reasonable precautions b/c most lawyers dont lock their office. 2. Privilege probably still applies. v. HYPO: letter from a client is left on her lawyers desk, where its seen and read by another client during an interview. Does privilege apply? 1. Lawyer is being irresponsible and hasnt taken reasonable precautions (flip letter over or stick it in a file.) 2. Privilege no longer applies. vi. HYPO: A letter from A is mistakenly addressed to and read by wrong client, or is sent to client at wrong address? Does privilege apply? 1. Lawyer is sloppy and hasnt taken reasonable precautions. 2. Privilege no longer applies. vii. HYPO: A fax from A to C is mistakenly sent to opposing counsel. Fax cover sheet says information is privileged and shouldnt be read. 1. With the banner, youve alerted your opponents not to read this 2. Privilege would apply. viii. HYPO: email from the C to A is mistakenly forwarded to another client. NO warning that contents might be privileged. 1. Lawyer is sloppy and hasnt taken reasonable precautions 2. Privilege no longer applies 4. Privilege only extends to communications with clients a. In most cases, this is pretty obvious. Its the individual youre working with. b. ISSUE: whether the attorney-client privilege extends to corporations c. Spectrum of Possibilities: i. Only the corporation itself (no people qualify) ii. Control Group (those in a position to control or take substantial part in the decision on which legal advice is sought) iii. Any officer or employee of the corporation d. Subject Matter Test i. Privilege extends to a person who makes the communication at the direction of his superiors in the corporation where the SM upon which the attorneys advice is sought by the corporation. -129-

Downloaded From e. Upjohn Co v. United States [ is a pharmaceutical manufacturer who made payments to secure foreign govt business. Internal investigation over questionable payments. IRS sought internal confidential questionnaires.] i. ISSUE: scope of the A/C privilege in the corporate context ii. Lower Courtsheld privilege didnt apply b/c communications werent clients; court of appeals used control group test iii. Control Group Test -- if p is in position to control a decision about an action which the corporation may take upon the advice of attorney. iv. Why did Supreme Court reject control group test 1. Court says the control group is too narrow and says the test should extend to a broader realm. 2. Sometimes people NOT in control direct companys actions in response to legal advice 3. Here, low-level and mid-level employees could have information necessary to defend against the potential litigation 4. How can lawyers get the full view and give legal advice if they dont have the whole story? v. RULE: court examines four factors: 1. Communications were made to secure legal advice for company 2. *Communications concerned matters w/in the scope of the corporate duties of persons communicating w/the lawyers 3. Employees knew that the communications were confidential and part of an effort to obtain legal advice 4. Corporation kept the communications confidential vi. This is a pretty broad test. We dont want to create a zone of silence. vii. Rule 501 protects any client information that aids the orderly administration of justice. viii. Work Product Privilege 1. Protects written materials prepared w/an eye towards litigation 2. Qualifiedw/a sufficient showing of need (very high standard), you can overcome the privilege ix. HOLDING: A/C privilege protects communications from disclosure iv. Exceptions: 1. Suits between lawyer and client (i.e. in a malpractice suit, client cant invoke privilege to prevent lawyer from proving relevant communications)


Downloaded From 2. Lawyer serving as attesting witness on clients document (i.e. lawyer may testify to execution of will in probate proceedings) 3. Identity of client and fee arrangement a. In Re Grand Jury Investigation (Durant) [ is an attorney who failed to reveal his clients identity. Stolen checks case.] i. Ds Claims: 1. Disclosures implicate C in criminal activity 2. Arrest is imminent upon disclosure of identification 3. Legal advice exception ii. General Rule: C identity is generally not protected by the privilege 1. It is NOT a confidential communication made for the purpose of obtaining legal advice. 2. EXCEPTIONS: a. Legal Advicedisclosure of information would implicates C in very matter on which he sought the legal advice b. Confidential Communicationso much of the actual communication has been disclosed that revealing Cs identity would disclose communication itself i. Ex) IRS gets letter from A that includes check from undisclosed TPs; lawyer COULD protect names of clients b/c if he had disclosed who C was, then it would reveal whole communication. ii. Most courts only adopt this exception. c. Last Linkdisclosure of Cs identity would provide the last link in a chain of evidence against the client. iii. Last Link is the best fit here, but court refuses to adopt it. iv. then attempts to frame his case as a legal advice claim 1. Court rejects this. 2. denied previous knowledge of checks, which weakens s claim that this is the issue which C originally came to A for. 3. Court forces to prove that C came to him originally to discuss stolen checks and refuses to do this v. HOLDING: shouldve disclosed identification b. HYPO: A returns stolen property on behalf of an unnamed client. Should A/C privilege apply here? -131-

Downloaded From i. YESencourages people to return goods ii. *NOimmunizes guilty people iii. Lawyer isnt serving as a attorney rendering legal advice, but instead as a messenger for the client c. These same rules generally apply to fee arrangements, the fact of consultation and the whereabouts of your client. 4. Statements in furtherance of crime/fraud a. State v. Phelps [s attorney who represented him in a DUI case was subpoenaed to testify against him on counts of perjury.] i. ISSUE: whether the evidence is protected by the A/C privilege or whether it falls w/in future crime exception to privilege ii. RULE: the A/C privilege does NOT apply to statements to an A seeking her services with respect to an ongoing or future crime/fraud. iii. The trend is to expand the exception to any tortuous conduct iv. Why do we have this crime/fraud exception? 1. Good reason to prevent future crimes 2. Brings the legal profession into disrepute if they had to protect this kind of information. v. Clients cant use the protection of their lawyers to help them commit future crimes. vi. TEST: must make a prima facie showing that: 1. C was engage in or was planning or later committed criminal/fraudulent acts when he sought As advice AND 2. As assistance was obtained in furtherance of the act or was closely related to it. vii. HOLDING: A/C privilege does NOT apply 1. Falls with future crime exception to rule (satisfies both prongs) 2. Evidence concerned the charge that was before the grand jury on and had yet to commit the crime of perjury. b. If client consults w/attorney about a prior crime, the A/C privilege DOES apply. c. There are also ethical rules about when you must/must NOT report Cs crimes v. Assertion and Waiver 1. Assertion a. Who holds the privilege? The client b. Must the client assert the privilege? i. Yes (else he risks losing its protection) ii. Coverage of privilege is NOT automatic; you must assert it to get it. c. The party claiming the privilege has the burden of proving the privilege applies. d. Opponent has the burden of proving that an exception applies. 2. Waiver -132-

Downloaded From a. Privilege is waived if the holder voluntarily discloses or consents to disclosure of any significant part of the communication b. UNLESS, disclosure itself is a privileged communication (e.g. to a priest/spouse) c. Privilege is also waived if attorney negligently discloses the communication (i.e. she mistakenly releases a privileged document to opponent during discovery) d. An intentional, but unauthorized disclosure (w/o clients consent), does NOT waive the privilege 3. Privilege claim is a 104(a) issue 4. Most rulings cant be reviewed until final judgment Spousal Privilege i. Common Law 1. Whatever spouse said was privileged 2. Govt couldnt compel spouse to speak AND spouse could prevent spouse from speaking 3. Werent allowed to speak out against spouse: a. Concept of unity (spouses were one person) AND b. Women didnt have a lot of rights at common law ii. Rationale: fosters family peace and public benefits iii. Two kinds of privilege: 1. Some overlap between the two privileges 2. Spousal Testimony a. Goes beyond protecting communications and blocks all testimony by one spouse against the other, including premarital events/acts b. Blocks testimony by one spouse against other, including premarital acts/events. c. Usually used in criminal cases (some courts dont allow privilege in civil cases) d. ISSUE: who holds the privilege? i. Both spouses (so either may block the testimony) ii. Witness-spouse iii. Defendant-spouse e. Trammel v United States [ imported heroin and wife was granted immunity if she testified against her husband] i. ISSUE: who holds the spousal privilege and who has right to waive it? ii. s Claimspousal privilege should bar wifes testimony iii. Old Rule: either spouse could prevent the other from testifying 1. Hawkinsrule bars testimony of adverse spousal testimony unless both consent 2. Law shouldnt force testimony which might alienate husband and wife, or further inflame existing domestic differences iv. RULE: spouse cant be compelled nor foreclosed from testifying v. In fedl cases, the holder of the privilege is the witness-spouse. vi. HOLDING: spouse allowed to testify -133-


Downloaded From 1. There is no harmony if one spouse is willing to testify against the other spouse (were not undermining anything then) 2. Is courts premise still right when we offer spouse a discount for testifying against his/her spouse. This isnt limited to communications (spouse cant take stand to testify about anything that happened during their marriage) EXCEPTIONS: i. Marriage must be valid when the privilege is invoked. ii. Privilege doesnt apply to sham marriages (got married to protect the conversations or to get the privilege) iii. Privilege only blocks the spouses testimony (spouses out-of-court statements arent privileged) Privilege does NOT apply if: i. One spouse is charged w/a crime or tort against the person or property of the other or a minor child of either (child/domestic abuse) ii. Spouses were joint participants in crime about which testimony is sought (status of this exception is murky after Trammel.) Confidences Blocks disclosure of confidential communications made between spouses during the course of their marriage. This privilege is used in both criminal and civil cases How is marital confidences privilege narrower than spousal testimony privilege? i. MCP only applies to confidential communications; STP bars all testimony How is marital confidences privilege broader than spousal testimony privilege? i. MCP continues even after the marriage has terminated. ii. MCP applies in criminal AND civil cases; STP only applies in criminal iii. Both spouses hold this privilege (so either can prevent the other from giving evidence) Excludes testimony concerning private communications between spouses while they were married. United States v. Estes [Husband comes home w/stolen $ and tells wife about it Hide $ and launders it and purchases goods. Divorce and wife tells FBI.] i. claims spousal privilege should apply ii. RULE: confidential communications concerning ongoing criminal activities are NOT protected by the spousal privilege iii. Theres a greater good from permitting a willing spouse from testifying against husband when both are engaged in crime; nullifies privilege iv. HOLDING: 1. Initial disclosure (origin of $) is NOT admissible -134-

f. g.


3. Marital a. b. c.


e. f.

Downloaded From a. This was a communication. b. What if he had just come in and dumped $ on bed? i. Conduct isnt usually covered by privilege. ii. Privilege only applies to communications. c. Conduct ok ONLY if intended to convey a message. d. EFFECT: spouse may testify about what the other spouse did (but not what he said) e. Communication about origin wasnt part of ongoing criminal activity. 2. Disclosure about hiding/use of money IS admissible a. Joint participation exception still in play. b. Hiding/use of money wasnt intended to convey a confidential message c. Admissible as evidence of joint criminal activity g. Privilege does NOT apply if: i. Spouses were joint participants in ongoing or future crimes at the time of the communication. ii. One spouse is charged w/a crime or tort against the person or property of the other or a minor child of either. iii. The proceeding is for divorce or child custody. h. NOTES: i. Privilege generally limited to communications (not acts) ii. Privilege doesnt apply in spousal suits iii. If kids are old enough to understand communications, then theres no privilege if they overhead them. IV. Authentication a. Introduction i. Look at it in terms of relevance ii. If the matter in question isnt what the proponent claims, then its not relevant. iii. If prosecutor wants to show clothing supposedly belonged to , the prosecutor has to show its relevant to case by showing it is the s. iv. Often goes hand-in-hand with other rules (youll oftentimes have to do both) b. Rule 901(a) i. Low standard ii. Must supply evidence sufficient to support a finding that the matter in question is what you claim iii. Question for the Jury104(b) 1. Judge screens to be sure that a reasonable jury couldve found the item to be authentic a. Reasonable Jury -135-

Downloaded From b. Judge can only withdraw if NO reasonable juror could find item to be authentic (doesnt matter what judges opinion on the matter is) 2. Passes ultimate decision of authenticity to jury who decides on a preponderance of evidence standard. Tangible Objects i. US v. Johnson [ was convicted for assault resulting in SBJ for attack w/axe. At trial, victim was called as witness, who hesitatingly identified the axe as the one that used.] 1. s Claimaxe wasnt properly authenticated 2. Change in condition: axe used had hair on it; axe admitted at trial had no hair on it 3. RULE: the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 4. HOLDING: requirements for admissibility were met. a. Impact: outlines the low standard. b. Even though W couldnt say definitely that this was the axe used on him, there was enough evidence for a jury to find that axe was assault weapon. 5. What kind of authentication was it? Testimony of witness w/knowledge. ii. Elements: 1. Object offered was object involved AND 2. Object is in substantially the same condition as it was at time of incident 3. Unique object (i.e. axe)can be authenticated w/witness who testifies to these points based on its distinctive appearance/characteristics of object. 4. Fungible object (i.e. drugs)it must be authenticated through chain of custody a. Cant just authenticate by testimony b/c it looks exactly like every other object of this sort and its easy to replace w/false evidence b. Elements: i. Continuous possession by each individual that had possession 1. Specialized version of first prong of tangible object test. 2. Youre showing that the objected offered was the object involved through showing continuous possession. ii. Object in same condition as it was w/possession of each person. 1. Specialized version of second prong of tangible object test 5. It is not necessary to eliminate all possibility of substitute/alteration. iii. Problem 13-A 1. FACTS: S arrested and 3 baggies of cocaine are identified. PO brings them into court. 2. Drugs are fungible, so have to show chain of custody. 3. Have to show: a. Cocaine was in the same condition as it was at time of his arrest. -136-


Downloaded From b. Continuous possession from Swensonofficerchemistofficercourtroom. 4. HYPO: what if PO took baggie off and took it to chemist who then gave it to another PO who brought it into court. What it other PO didnt testify? a. Missing link is okay. Other PO doesnt have to testify to authenticate. b. Courts will tolerate some breaks in the chain. If you dont have every person who handled the fungible object come in to testify, thats ok as long as that person is a minor person (transporter, immediate person) c. Probably wouldnt tolerate if it was the missing link was the officer who removed the drugs from . iv. US v. Howard- Arias [POs found marijuana on a sinking ship. Boat sank, but police claim they salvaged some of the marijuana. Missing link from time of capture to time of trial.] 1. ISSUE: must the proponent bring in everyone who had possession of the item to establish chain of custody? 2. RULE: as long as theres sufficient evidence that the item is what it purports to be and is in substantially the same condition, courts will authenticate. 3. HOLDING: missing link okay d. Authenticating a Writing i. Ways to Authenticate a Writing 1. Witness testifies that he says the person signed the document (direct) 2. Witness testifies that he personally wrote/signed the document (direct) 3. Distinctive characteristics901(b)(4) (circumstantial) a. Reply Doctrineif you can show a letter was mailed, you can authenticate the 2nd letter by showing the contents of the 2nd letter were in reply to 1st 4. Opinion on Handwriting 5. Comparison of Handwriting ii. US v. Bagaric [Court went into contents of letter of accused of violating the RICO act Wanted to see if it was likely that the person in question wrote the letter.] 1. RULE: its okay to base authentication on circumstantial evidence 2. Attempting to use 901(b)(4) to authenticate a. Names of the letter, where it was mailed b. Special nickname 3. HOLDING: okay to examine contents of letter. a. Opinion on handwriting (901(b)(2)) b. Comparison of handwriting (901(b)(3)) iii. Problem13-B. 1. FACTS: P wanted to offer land-sale k of two parties in a suit to quiet title. Original was obtained from the property records office of the county courthouse. 2. Ways to Authenticate: a. By a witness who saw it executed b. By a non-expert opinion on handwriting c. By expert testimony on handwriting i. Give him a known exemplar, and then have him give his opinion as to the contract writing d. By jury comparison on handwriting (trier of fact) e. By distinctive characteristics -137-

Downloaded From By evidence showing public record where it was regularly filed g. By showing that it is an ancient document doctrine (over 20 years, not suspicious, place where you would regularly find) iv. Problem 13-C 1. FACTS: Tiffany is reported missing from her home. PO discover email messages from someone called the wizard. They find Tate, who goes by the wizard. 2. Ways to Authenticate: a. Tiffanys Email to the wizard? Tiffanys testimony = testimony of witness w/knowledge b. The Wizards Emails to Tiffany i. Tiffany could testify that she received these letters from the wizard ii. Reply doctrine c. That Tate is the wizard i. 901(b)(4)appearance, contents, substance, internal patterns, etc. ii. Courts have said its enough if it comes from his account (IP address on email header is sufficient) 3. Using internet documents to authenticate isnt really valid (fear of hackers; anyone can post shit on the internet) e. Authenticating a Recording901(b)(5) i. RULE: Sound records are authenticated if the W has some familiarity w/Xs voice 1. This can come from first-hand experience OR through mechanical devices (telephone) 2. Familiarity may come before or after the incident youre trying to authenticate ii. Problem 13-D. 1. FACTS: conversation between and DEA concerning sale of heroin; E set up recording, but didnt hear it. 2. Can prosecutor authenticate the recording w/only the testimony of K? PROBABLY. a. K participated in the conversation, and thus should be able to testify that the tape truly and accurately reflects the conversation that occurred. b. You dont have to be the person who set up the microphone. 3. If the authenticating W wasnt a participant, but merely recorded the conversation, what foundation must be laid? McKeener factors (listed below) a. Recording device was capable of taking conversation now offered into evidence b. Operator of the device was competent to operate c. Authentic and correct d. NOT changed e. Preserved in a manner shown to the court f. Speakers are identified g. Conversation elicited was made voluntarily and in GF, w/o inducement. iii. US v. Biggins [ charged w/possessing and distributing heroin. You dont need to have more than the person who participated or heard the conversation. HOLDING: evidence authenticated] f. Photograph Identification -138f.

Downloaded From i. W familiar w/scene must testify that photo is a fair, accurate, and true depiction of scene/object ii. If scene of accident has changed, the witness must say how (minimal changes ok), and the photo is not too misleading. g. X-Ray Authentication i. Must show process of creating x-ray was accurate ii. Must show chain of custody was secure (if x-ray has patients name/info on it, this resolves your chain of custody problem, but you still must show process was accurate). h. Computer Printouts i. Need to show computer is reliable ii. Need to show the procedures for input/output are reliable. i. Telephone Conversations901(b)(6) i. US v. Pool [ indicted for marijuana possession. PO could only ID through his self-ID.] 1. It is NOT enough that person identifies himself as Chip; must have more showing. 2. Use of nickname isnt prima facie case that was caller 3. RULE: Self-ID of the person on the other side of the phone (this is Joe Smith) is NOT enough to authenticate; its too easy to call and falsely identify yourself. 4. HOLDING: conviction reversed. ii. Problem 13-H 1. FACTS: 3rd year law student accepts job w/firm after ORourke offers him the job; only to be later informed that there was no job. 2. Can you authenticate the call under 901(b)(6)? NO. The call wasnt made to the ORourkes residence or ORourkes business. It was made to a country club. 3. Can you authenticate the call under 901(b)(5)? NO. Student hadnt spoken to ORourke or otherwise heard his voice. 4. What can you use? 901(b)(4) a. Paul will show that the combination of circumstances and things said is sufficiently distinctive and that the person was ORourke. b. Pauls Argument: i. Person appeared to recognized Paul ii. He didnt question why Paul was calling. iii. He carried on a conversation about the employment iv. Paul received a message from someone purporting to be his secretary telling him to call ORourke that evening at the country club. c. Firms Argument: i. The voice just went along with Paul. ii. It was nothing that a practical joker couldnt have said. d. This would probably come in; standard for authentication is pretty low iii. Evidence that phone # belongs to a ok if: 1. Personevidence shows the person answering to be the one called OR 2. Businesscall was made to a place of business and the conversation related to business reasonably transacted over the phone. j. Self-Authenticating ExhibitsRule 902 -139-

Downloaded From i. We wont be tested on this. ii. RULE: proponent doesnt have the initial burden of proving the exhibits authenticity 1. Exhibit doesnt require extrinsic evidence of authenticity as a CP to admissibility 2. Other party may still dispute authenticity; at that point, you may have to respond. iii. Examples: 1. NY Times--(6) 2. Websters Dictionarynot under (5) b/c privately published; (7) might work if youre trying to claim its a Websters dictionary; doesnt authenticate whats inside dictionary 3. Volume of West Publishing Companys SC Reporterdepends if its the official reporter for that jurisdiction; if so, then use (5). May be a periodical under (6) 4. Sears Catalog(7) if youre claiming its a Sears catalog 5. Newsweek Magazine(6) 6. Candy bar in a wrapper labeled Baby Ruth(7) 7. Map published by the govt(5) 8. Apparently signed and sealed minutes of City Council of Fairbanks (1) 9. Census report by govt of France(5) (no requirement that it be domestic); not enough information for (3) V. Demonstrative Evidence a. Definition: evidence is anything which appeals to the jurors senses; it can be something for them to look at, to touch, to smell, to taste, or listen to. b. Pros1) clear and concise; 2) incite jurors attention spans; 3) jurors can take to deliberations room c. Continual communication d. Purpose: i. Establish liability of the defendant ii. Illustrate the full extent and severity of plaintiffs injuries iii. Complement the written transcript for use on appeal e. Ex) photos, day-in-the-life films, wounds, body parts, models, maps, charts VI. Best Evidence Rule a. RULE: to prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or act of Congress. b. Rationale: 1) written work is sanctity; 2) evidence other than writing is inferior; 3) copies are viewed w/suspicion; 4) production assures completeness and prevents out of context problems c. What is the purpose of the Best Evidence rule? i. To secure most reliable information as to the contents of a writing, recording, or photograph b/c precision and accuracy are essential and are easily lost when the item is paraphrased or recalled ii. Writing is usually exact and some of that exactness is lost when a writing is just paraphrased iii. On appeal, courts wont find reversible error unless theres a genuine GF dispute over the existence or contents of original d. Problem 14-A i. FACTS: P brings COA against D based on statements made in letter. At trial, letter not produced nor shown to be available. Over BE objection, employer is allowed to testify as to its contents. ii. What question will judge ask D? Whether D actually disputed accuracy of employers description of contents of letter. (If its not inaccurate, theyre not going to reverse the case) -140-

Downloaded From e. Defining Writing, Recording, PhotographRule 1001 i. If its a writing, you have to deal w/BER. If its NOT a writing, you dont have to deal w/BER. ii. United States v. Duffy [ stole and transmitted car. Witnesses claim they saw white shirt was imprinted w/laundry mark reading DUF.] 1. ISSUE: did admission of shirt w/DUF violate best evidence rule? 2. s Claimshouldve had to produce shirt rather than testimony of shirt. 3. When you have object bearing inscription, is it a writing or a chattel? a. Judge has discretion to treat it as either. b. In exercising discretion, what factors should judge consider? i. Policies underlying the rule 1. Consider whether inscription is simple and easily remembered 2. If its complicated, judge will likely want to see object itself. ii. Whether the terms of inscription are of central importance to the case. 4. RULE: BER typically applies to inscribed chattels only if judge (in exercising her discretion and examining factors) believes that it should apply. 5. HOLDING: admission is ok a. Shirt is NOT a writing b. Rule is limited to contents of a writing f. Defining OriginalRule 1001(3) i. Rule: an original is the version of the writing that has evidentiary significance in the case ii. Problem 14-B 1. FACTS: Adoption case. Birth mom wants nothing to do with daughter. Doctor furnishes adoptive daughter w/copy of birth records. Birth mom offers photocopy into record. 2. Does use of photocopy violate BER? NO. Original was a photocopy here. 3. Can a copy of a document be an original? YES a. If the copy is the writing relevant to the litigation or if the parties intended that the copy be treated as an original. b. The copy is what was handed to her daughter in violation of the agreement between mom and Dr. Murphy. c. Ex) contract copies when made and sent around (as long as party intended them to be the original) 4. What photographs count as original? a. Any print from negative of a photo is an original. b. Impact? Virtually every photograph is an original. 5. What counts as the original of data stored in a computer? a. Any printout. b. Digital photographs probably fall under this provision (rather than the previous) g. Definition of DuplicatesRule 1001(4) i. RULE: a duplicate is any copy produced by a reliable copying process. 1. Manual copies are NOT covered (ex. secretarys retyping of a note is NOT a copy) 2. Any modern day methods are sufficient. ii. Rule 1003 recognizes that the modern-day copying processes are reliable. iii. When can you use a duplicate instead of an original? (Rule 1003) -141-

Downloaded From 1. Anytime 2. EXCEPT: a. When there is a genuine question about the authenticity of the original OR b. In the circumstances, it would be unfair to admit the duplicate. iv. IMPACT: usually, you can use a duplicate instead of original. This means that in the vast majority of BER cases, the litigation falls on Ws testimony about what was in a document. v. Problem 14-D. 1. FACTS: Vomit in oxygen mask. Changing record from she ate 1 hour beforehand to she ate 9 hours beforehand. 2. General Rule: you can use a copy instead of a duplicate. 3. EXCEPTION: genuine question is raised as to authenticity of the original a. Probably meant to cover those circumstances where the original document never existed or the claimed original is not authentic (when they have only the copy) b. The way this provision is interpreted is to permit copy of duplicate so long as jury has a copy of the original. 4. Cordray thinks court got it wrong. 5. 1008(c)Functions of Judge/Jury w/respect to BER a. Normally the judge decides b. In three circumstances, judge plays screening role and jury decides: i. Whether asserted writing every existed ii. Whether another writing, recording, or photograph produced at trial is the original OR iii. Whether other evidence of contents correctly reflects the contents c. What should judge do when there is issue of whether other evidence (i.e. copy) correctly reflects the contents of the document? Give it to the jury and let jury figure out which accurately represents content of form/contract, etc. 6. 1008 and 1003 are conflicting doctrines. Cordray thinks 1008 is the better option. 7. Hearsay Problem? a. Two levels: (1) womans statement to nurse, (2) nurse writing down on form b. Qualify each level of hearsay i. Womans Statementstatements for purposes of medical treatment; effect on listener (liability depends on whether W ate one hour before) ii. Nurses Formbusiness record exception h. Operation of the RuleRule 1002 i. General: 1. To prove the content of a writing, recording or photograph, the original is required. 2. *BER only applies if party seeks to prove contents of writing, recording, or photograph 3. ASK: is the W testifying from his own knowledge of the event, or whether he is merely describing what he read, heard, or saw in a writing, recording or photograph. a. Testifying from his knowledgeBER doesnt apply b. Describing something he read in documentBER applies -142-

Downloaded From ii. Problem 14-E 1. FACTS: Prosecution attempts to establish obscene content of films by testimony of PO who viewed them. Films arent offered into evidence. makes BER objection. 2. Does BER apply to POs testimony about the obscene content of the films? YES a. The film qualifies as a photograph b. Witness is describing the contents of the films. He gets his knowledge from watching films. 3. Hearsay problem? Probably not w/obscene things said on the film. iii. Problem 14-F 1. FACTS: Photograph of bank robber is taken by surveillance camera. PO testifies that he removed the film from the camera, supervised its development and examined photo. 2. Does BER apply to POs testimony about person in the photo? YES a. Witness doesnt have independent knowledge b/c he wasnt there. b. Witness is describing the contents of the photo. c. No hearsay problem; PO is simply looking at the picture. iv. Meyers v. United States [ tried for perjury. Testimony of s words. Govt introduced stenographic transcript of testimony.] 1. ISSUE: is Rogers testimony barred by the BER? 2. RULE: the BER is limited to cases where the contents of the writing are to be proved 3. HOLDING: its not unfair to permit transcript; BER doesnt apply. a. There was no attempt to prove the contents of the writing. b. The issue was what Lamarre had said, not what the transcript contained. v. Problem 14-G 1. FACTS: DEA agent (N) overhears/tapes conversation between P and Q that takes place in hotel; he arrests them. At DEQ headquarters, N questions P/Q and types up notes. 2. Can N testify about conversation at Motel or does he need to produce recording? YES a. BER doesnt apply to informants testimony about contents of conversation. b. W is describing what he heard during the conversation itself, NOT what he heard on the tape of the conversation. c. Ns testimony comes from eavesdropping, NOT from listening to tape. Its independent knowledge d. Hearsay problem. Informant wants to describe what s were saying. i. Party admission AND ii. Non-hearsay; has independent legal significance (amounted to crime) 3. Can N testify to Ps admissions or does the govt need to offer signed statement? YES a. N has independent knowledge of what P said that day. He was there when Q gave his admission. b. He was there; testimony comes from POs independent knowledge of the info -143-

Downloaded From 4. Can N testify to Qs statements at DEA headquarters, or does govt need recording? YES a. N has independent knowledge of what Q said that day. He was there when Q gave his admission. b. He was there; testimony comes from POs independent knowledge of the info 5. BER does NOT apply b/c hes not describing the contents of the tape. 6. Isnt it better to have the tape than the testimony here? a. Tape recording is the better evidence here. b. This is the argument thats outlined in the Meyers dissent. c. Juries are more likely to focus on the testimony and NOT the written word d. We like to let attorneys have the leeway to do what they feel is best for them. Problem 14-H 1. FACTS: B sues C to recover the balanced owed on purchase price for chickens. D claims hes entitled to price adjustment b/c chickens were sick. Seeks to submit testimony about vet report, but not report itself. 2. Does the rule apply to farmers testimony (re: vets report) about sickness? YES a. Farmer is testifying as to the contents of the report b. Rule would NOT apply to vets testimony as long as he has an independent recollection of whats wrong with the chickens. 3. Hearsay problem? YES, comes in under business records, however. Things to Examine w/BER 1. Hearsayreport written out-of-court; BER often comes into play b/c most statements are out-of-court statements offered for their truth. 2. Business records803(6) 3. Recorded recollection803(5) Problem 14-I 1. FACTS: G testifies that she paid October rent in cash. G admits that F always gives written receipt for rent payments. Fs counsel objects and says G must produce receipt. 2. Does BER apply to tenants testimony about cash rent payment? NO a. Shes describing personal involvement and conduct, NOT what the receipt says. b. As long as tenant remembers the payment independently of reading receipt, she can testify about it. Problem 14-J 1. FACTS: Claim by H against insurance company for stolen Jackson Polluck. Insurance company testifies that H didnt file the report on time. H makes BER objection, arguing that insurance company must produce logs/records, not just testimony. 2. Does BER apply to custodians testimony that she examined the records of the burglary reports and couldnt find one filed by H? NO a. BER doesnt apply to testimony that books or records have been examined and found NOT to contain any reference to a particular manner. (ACN) -144-





Downloaded From b. Theres no content to testify about; youre describing the search. 3. Hearsay problem? NO. Its not a statement (similar to case where no one had ever complained.) Absence of report leaves us w/no assertion. x. HYPO: litigation where sues for violation of non-compete provision in employment k; claims there was no non-compete provision in k. testifies and says there was no non-compete provision in k. BER objection.] 1. ISSUE: if someone testifies as to whats NOT in the contract, does BER still apply? YES 2. Here, hes testifying about content and outlining was is and isnt included in document 3. Still describing the contents of the document (about whats NOT in content) xi. Problem 14-K 1. FACTS: Car accident. Doctor testifies as to x-ray of leg showing fracture, but doesnt offer the x-ray into evidence. 2. Does the rule apply to the physicians testimony about the x-ray? a. If plaintiff testified that he looked at x-ray, it would be covered by BER b/c hes describing the contents of a photograph. b. If physician said I looked at x-ray, it would be expert testimony and he could rely on information based on inadmissible evidence, including hearsay. 3. Problematic b/c physician is testifying about content of photo (the x-ray) a. However ACN to 1002 recognizes that the rule is subject to 703. b. Allows experts to base their testimony on inadmissible evidence c. Under 703, proponent many only ask the expert to describe the x-ray if the PV in assisting the jury to evaluate the experts opinion outweigh prejudice 4. Look to see if it falls w/in 702, 703, 705. Production of Original ExcusedRule 1004 i. Production is Excused if: 1. Original has been lost/destroyed (unless by opposing party) a. Reasonable search b. Extent of search is w/in trial judges discretion i. Is it important to the litigation? ii. Is there any concern about bad faith destruction? c. Sylvania Electric Products v. Flanagan [ hired to remove ledge materials from construction site. Discrepancy about number of hours worked. offers evidence based off of tally sheets. demands tally sheets under BER.] i. Evidence: 1. Summary of data contained in invoices and tally sheets 2. Photocopies of bills/invoices sent to by truckers for rental of trucks on job 3. Copies of bills sent by to ii. RULE: in proving terms of a writing, which terms are material to issues in case, original writing must be produced unless its shown to be -145-


Downloaded From unavailable for some reason other than serious fault of the proponent. iii. must show that a reasonable search for original w/o success. iv. HOLDING: must produce tally sheets or show they cant be found. 2. The original is not obtainable 3. The original is in the possession of the opponent OR 4. The original relates to a collateral matter. a. No clear definition about collateral. Kind of murky. b. Is it closely related to a controlling issue? c. If the piece of evidence is important to issue of litigation, you cant use excuse. ii. Problem 14-L 1. FACTS: breach of k claim. P shows that original k was destroyed in fire. P has an accurate and legible photocopy of k, but proves contents w/testimony instead of copy 2. Can P testify about contents of k rather than introducing the photocopy? YES a. 1004 doesnt recognize degrees of secondary evidence. b. If you have an excuse, the BER goes away and you can use whatever evidence you want. You dont have to use the next most reliable form. 3. What will he be asked on cross-examination? Whether he had a copy of it. He becomes vulnerable about why he was hiding copy of document from jury. j. SummariesRule 1006 i. Problem 14-M 1. FACTS: T is prosecuted for tax evasion; govt calls IRS accountant (U) to testify. U examines Ts records, which reflect more than 90 deposits and 300 withdrawals. 2. Can P introduce the chart summarizing Ts bank records? YES a. Records must be too voluminous to be conveniently examined in court AND b. Records must be made available for inspection by the . 3. Do underlying bank records have to be admissible? YES, unless they have been reasonably relied upon by an expert under 703. k. AdmissionsRule 1007 i. Problem 14-N 1. FACTS: D breaks lease by keeping dog on premises. B seeks to testify that lease contains a no pets provision, but Ds BER objection is sustained. D signed a letter saying that the lease says I cannot have any pets. 2. Can B prove the contents of the lease w/Ds signed letter acknowledging contents? YES a. 1007 allows contents of a writing to be proved by written admission of opponent w/o accounting for non-production of the original. b. What if words werent written, but during conversation? i. Rule 1007 doesnt apply. ii. Rule only applies to writings, recordings or photographs. 3. Hearsay problem w/introducing lease itself? NO, verbal actcontract.