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Eldred Outline - Evidence: Fall 2010 [1A.] Relevance: 401, 402, 104(a), 104(b), 403
"If A is charged with murder, evidence offered against A is relevant if: "the apparent probability of [A's] guilt is now greater than before the evidence . . . was received." Not all relevant EV is admissible, but ALL irrelevant evidence is inadmissible.

Exam Tips:
Relevance includes probative worth (does the proof support the point for which it is offered?) and materiality (does that point matter in the case?). Standard of probative worth is liberal. Proof can be relevant without being sufficient ("a brick is not a wall"). Proof is rarely irrelevant in the sense of no logical tendency to support a point, but sometimes irrelevant because the point doesn't matter in the case. Relevant evidence may be excluded if it's probative worth is substantially outweighed by risks of prejudice, and for other reasons (most important being confusion or waste of time). Prejudice refers to inflammatory effect (e.g., gory pictures), and jury misuse (OOC statements offered to prove state of mind, but tending to prove acts, events, or conditions).

TWO COMPONENTS: Probativeness AND Materiality. "Materiality": A "fact that is of consequence" to the action. Evidence Must Be Relevant to Be Admissible: Relevancy is the starting point to any evidentiary analysis. Rationale: Necessary to constrain trial length and litigation costs, avoid confusion, and trials would be lengthy. FRE 401: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 401 ACN: A finding of relevance suggests that the evidence "possesses sufficient probative value to justify receiving it." "The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action." "The fact to which the evidence is directed need not be in dispute . . . . Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission." "A brick is not a wall."

U.S. v. James:
Key Evidentiary Question: Why is the fact there is proof that the victim had a criminal history of violence relevant if the D didn't know it?

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9th Cir.: ³Because the crux of James¶s defense rested on her credibility and because her credibility could be directly corroborated through the excluded evidence [the court records], exclusion of the documents was prejudicial and more probably than not affected the verdict.´ We brag about things that are true. If there's proof out there that it happened, and there's a claim he bragged about it, it's more likely to be true. Side Note: Unfair prejudice is not just for the defendant. As long as the evidence that's being offered unfairly suggests a reason for acquittal, it might be prejudicial to the prosecutor.

Relevant: General:
Defined in rule 401 (any tendency to make any fact more/less probable). This is an extremely broad definition. Even evidence that only has the slightest probative value qualifies. If doesn't have to even establish a specific fact, it can establish a piece of a fact. "A brick is not a wall, but even a brick is admissible. a. Only logical relevance is required: Only logical EV is required, NOT legal relevance. BUT, EV having only marginal probative value may be excluded under 403.

b. Does not address specific categories of evidence: This is a general standard applicable to all types of evidence. c. A relational concept: The item must be judged in the context of the specific issues of the case, law, or evidence introduced. d. Need not be in dispute: EV can be relevant to prove a point not contested, although it may be excluded under 403. e. Impeachment evidence: Relevant EV can advance one's case, OR rebut an opponent or impeach witnesses. Materiality: a. Legally significant: EV is material if it has legal significance. b. Merged in FRE 401: Diff. at CL, but merged under 401. This requirement is found in the must "be of consequence to the determination of the action," requirement. Direct Evidence: Direct evidence asserts the existence of the fact to be proven, or embodies or represents that fact. It's always relevant if it proves a fact of consequence to the action. e.g., Eyewitness testimony that she saw the D shoot the V. Circumstantial Evidence: EV is that which a fact-finder can infer an increased probability that the fact exists. Relevancy is important here, and debates arise where there's uncertainty that a particular inference can be drawn. Convictions can rest entirely on circumstantial evidence. e.g., Finding the D's fingerprints on the murder weapon.

Relevancy Requirement Underlies Other Rules of Evidence:
1. Particularized Rules of Relevancy: 404-415 deal with codifications of relevancy determinations. 2. Personal Knowledge Requirement: Helps ensure relevance (by avoiding

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conjecture). 3. Lay Opinion: Opinions must be based in personal knowledge (increasing relevance). 4. Expert Opinion: Must qualify (increases relevance). 5. Authentication: A more specific application of the relevancy requirement

Role of Judge and Jury:
1. FRE 104(a): Language: "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges." ACN:
"The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations."

Thus, only if the judge determines that it's relevant does the jury get to hear it. Then, the jury can decide later how to weigh it. 2. FRE 104(b): Key: The EV offered isn't YET relevant because there's a fact missing.
Depending on the missing fact, original evidence can be classified as either: Not relevant (Rule 401); or Not yet relevant (Rule 104(b);

e.g., Sherlock Holmes; Knife and Wine Glass. Fingerprints found later. Key fact missing implicates 104(b). No clear line between 401 and 104(b). At some point, the inferential leap (link) is too big, and the question goes from relevancy to conditional relevancy. Relevance: ACN "Evidence in a murder case that accused on the day before the shooting purchase a weapon of the kind used in the killing" is clearly relevant. This is the only specific objection that the jury rules on. Where relevancy depends on a preliminary question of fact (e.g., whether a document is a forgery). Language: "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ACN to 401 addresses 104(b): "In this situation, probative value depends not only upon satisfying the basic requirement of relevancy as described above but also upon the existence of some matter of fact." a. Role of judge: e.g., Judge only decides whether there is sufficient EV to
support a jury finding of genuineness. If so, submit to jury who determines.

b. Role of jury: e.g., If the jury finds it to be a forgery, it is instructed to disregard it
as irrelevant. Converse is true.

c. Connecting up ("admitted subject to connection"): Can allow the jury to

Other Evidence Rules: A bunch of FREs that exclude relevant evidence (403-405. 1002). A party doesn't necessarily have to accept the stipulation." Old Chief v. Stipulations: Courts must consider offers to stipulate in making FRE rulings. 901. the evidence is to be admitted. Statute that excludes unlawfully obtained wiretap evidence. 407-412.g.g.g. is said to weigh too much [and] overpersuade. 606. FRCrimP: Grand jury proceedings. Michelson v.: "Prior trouble . and 2. FRCP: Failure to comply with discovery. Where probative value is equally balanced against exclusion. U. plea agreements. Old Chief v. "narrative quality"). i. 501. etc.. 605. 2. Failure to connect up: If the proponent fails to "connect up. U. 2. and request an instruction. 702. E. and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. 4.. 5. Preventative detention. or by other rules prescribed by the Supreme Court pursuant to statutory authority. Mistrial may be required if the exposure caused irreparable prejudice.S. Judicial Discretion to Exclude Relevant Evidence: 1. 610.g..g. e. . . offers photo of murder victim to establish location of the body (D might stipulate to location).com see it preliminarily with agreement to "connect up" later.. Propensity/character evidence." 3 Factors that determining whether stipulations can substitute for normal evidence: .. 3. work product. Evidence which is not relevant is not admissible. except as otherwise provided by the Constitution of the United States. FRCP. by Act of Congress. 802. by these rules.." (e. Is the name and nature of the prior crime relevant? What other options of proof are available? 403 Arguments: 1. Relevant Evidence Admissible Unless Otherwise Provided: 402 Language: "All relevant evidence is admissible. 1. Balance in Favor of Admissibility: Exclusion only when the EV is substantially outweighed by competing considerations. Prosec. 602. or absence of Miranda warnings)." the opposing party should move to strike. U. Rule is slanted in favor of admissibility.S. ii. Constitution: Constitutional exclusionary rules (faulty searches. Admit "subject to" later evidence: e. Federal Statutes: e. Courts reject stipulations where they are incomplete OR would unfairly deny a party full force of its proof (case we read. United States: "A syllogism is not a story.S. 701.Downloaded From OutlineDepot.. Admit the document where a handwriting expert will be called later to testify as to genuineness. FRCrimP).

commonly. Hustler invasion of privacy case. or needless presentation of cumulative evidence. or gives rise to overly (1) The prosecution should have access to the full color and flavor of evidence." 1. ACN. State v. We want to avoid the excessive emotional and irrational effects that could distort the accuracy and integrity of the fact-finding process. (2) Whether or not it goes to the law's moral underpinnings. 3. Bocharski: Photos of head cleared out. sympathetic reactions. appeals to prejudice. (3) Juror's have an expectation of the way that evidence should be presented. anger. . RS grave).g. it should be presented. so if it creates a hole... evidence MAY BE [discretionary] excluded if its probative value is substantially outweighed by the danger of unfair prejudice. consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. "Unfair" language is used because all evidence is prejudicial. Questions of credibility are for the jury. though not necessarily. unfairly puts a witness/party in a negative light. Bring in evidence of prior torture murder of seven-year-old-girl. or by considerations of undue delay." May also be excluded when it evokes the anger or punitive impulses of the jury.g. 4. analytical evidence. or sympathy on the part of the jury.g. "granting of a continuance is a more appropriate remedy [for surprise] than exclusion of the evidence. This would increase preventative detention tendencies. State was going to discuss angles of knife wounds. Erred in admitting 128 pictures of the .Downloaded From OutlineDepot. . and reverse only for an abuse. dead baby. We don't want to strip the jury of the power to make moral judgments. E. Unfair Prejudice. Excessive emotionalism: Want to avoid injecting excessive hostility. E. General: Most frequently used ground. ." 403 Language: "Although relevant. If it prevents the D from being morally judged in the way the law should allow. confusion of the issues. Grounds for Exclusion Under FRE 403: Strategy for D: Think about what the P is trying to offer. Courts can exclude evidence that is "inflammatory. or sensational. an emotional one. "did not contribute to or affect the jury's verdict." ACN: ""Unfair prejudice" within its context means an undue tendency to suggest decision on an improper basis. In the end. shocking. . Surprise: Surprise is not an independent ground for exclusion. but never did. Marshall Jones Trial. . 6.. . Appellate Review: Substantial deference to rulings under 403. a. The availability of other means of proof may also be an appropriate factor. Ex-felon caught possessing firearm. In reaching a decision whether to exclude on grounds of unfair prejudice. confusion of the issues. or misleading the jury." It may be a factor in finding that the evidence will result in unfair prejudice. and undue delay. Credibility Determinations: EV cannot be excluded under 403 simply because the judge doesn't find it credible. waste of time. and shouldn't be limited to sanitized. and try and find less prejudicial evidence that proves the same thing (e.

Too confusing. E. Jury unable to limit use: Jury might misuse the evidence in some way. but courts can limit number of witnesses and prevent unnecessary repetition.g. 4. 5. "Shaken-baby case". Undue weight: Can be excluded where the jury is likely to give it undue weight." as evidence of showing D's will to live and unlikelihood of her committing suicide..Downloaded From OutlineDepot." These are criticized though. 2 hr video of psychiatric interview excluded where information was already sufficiently established. Judge excluded evidence of 6 similar accidents where 3 had already been presented. P gave demonstration of man violently shaking a mannequin..g.g. Confusion of the Issues Can be excluded where it distracts the jury with collateral matters." E.the reverberating clang of those accusatory words would drown out all weaker sounds. the court... The evidence that the prosecution offered in Exhibits 46 and 47 should only be considered for the purpose of establishing the angles of the decedent's wounds. properly excluded. Personal injuries in rollover case. Shepard has poisoned me. shall restrict the evidence to its proper scope and instruct the jury accordingly." b.." c." Recurring Issues of Relevance: (EV of Guilty Mind. e. Other Ks. P wanted to introduce "Dr. D tried to offer evidence that coconspirators were not prosecuted in the same crime. upon request. Needless Presentation of Cumulative Evidence Hard to draw a line. 3. Limiting Instructions Under 105: Limited Admissbility Rule: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted. ". "day-in-the-life" films. Waste of Time or Undue Delay Language which is a "concession to the shortness of life. Misleading the Jury Can exclude evidence that is likely to mislead the jury. courtroom displays of wounds can have an unfairly powerful emotional impact on the jury E. lost limbs. Introduces simulation with dummies who fly about.. d. Demonstrative evidence: Photos. PI action of P against farm combine manufacturer. E.g. Potential Instruction: "In looking at these images it's important to set aside emotion in pursuit of logic. 2. It's important to keep in mind that this issue was never discussed throughout this trial. Dummies can't hold on. Reversed.g. Other accidents.g.g. P wanted to introduce boss' statement that postman had been "taking packages out. No support in evidence for force or oscillations. e.. . Bank magazine's "worst pictures. E. because it's hard for juror's to ignore them." where he was accused of improperly opening mail. Misleading. or be unable to follow a limiting instruction. computer-generated visual imagery..

Self-Authentication: These are self-explanatory. .com [1B." Generally the original is required.g. (8) Ancient documents or data compilation. Is the offered package the same one that was found on the D? E. Photo includes negative or new print). (e. Drug possession. 1003..Downloaded From OutlineDepot. E.g.] Authentication & the "Best Evidence Rule:" 901. Tom Hank's Call: Can use 901(b)(5): Wife can identify the voice. Huddleston standard: Sufficient evidence that ³the jury could reasonably find by a preponderance of the evidence´ that the exhibit is what its proponent claims. (3) Comparison by trier or expert witness. all that's necessary is what 901(a) demands. (5) Voice identification (6) Telephone conversations.. Is there proof that the D wrote the letter? E. "Duplicate": 1001(4): Any mechanical reproduction. 902 Question: Is the exhibit (the evidence) what the proponent (lawyer) says it is? At its core authentication is an issue of relevancy.806.g. Broad definition. 1004 Applies: Only to prove the "content of writings. or photographs. the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Phone threat. Is there proof that the threatening phone call was by the D? Language: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. not thinking about indicting." Chain of custody: While a perfect chain is ideal. recordings. Authentication and Identification: 901. The "Best Evidence Rule": 1001. Legal test for Admissibility: p. or Unfair to admit duplicate. (7) Public records or reports. Examples: E. (10) Methods provided by statute or rule. (2) Nonexpert opinion on handwriting. and not by way of limitation. 1004 (1001-03?) D..g. 1002: Requirement of Original except as otherwise provided. Rule 1003: Admissibility of Duplicates As good as a copy unless: Genuine issues of authenticity are raised. 902. as long as it does not include the possibility of human transcription error. (9) Process or system. Key Inquiry: "Is the item in substantially the same form?" Handwriting Example: Important that analysis "not [be] acquired for purposes of the litigation." Here they were investigating. For threatening. What's an original? FRE 1001(3). 1002." 901(b) list illustrations: By way of illustration only.. (4) Distinctive characteristics and the like.

D objects: BER violated! Need to prove by transcript. or inadequate warnings. P can play THE KEY: Arises where the rule a proponent seeks to prove THE CONTENT of a W. Broad. OR proof of feasibility IF CONTROVERTED. [2. We're just trying to have someone testify about what they heard in court. a duplicate.] Special Relevance Rules: 407. Original not obtainable. R. Exception: Proof of SRM to impeach (control. no ³BE´ rule. 411 Exam Tips: SRM are excludable if offered to prove negligence. ownership). BUT: . Perjury Trial: M on trial for suborning perjury by L. Now we're trying to prove its content! The key: The evidence has "independent probative value" (RB 322) If the tape was destroyed. Admissibility of Other Evidence of Contents. means of proof. 409. and their recollection is okay: Not proof of content.. 2010. especially in a perjury trial.Downloaded From OutlineDepot. Therefore. Side Notes: On Quiz 1 A party seeking to prove the contents of the writing. can apply to firing of employees. BUT. or culpable conduct. or the teller has died. NOT by recollection! We're not trying to prove the content of the writing. 408. Original in possession of opponent. There's no way that Rogers can testify to every word that he said. Therefore. He has no independent knowledge of whether the defendant was in the store on July 1. Rule Applies: Where P plays the video w/o the teller. and the teller can "adopt" it: Not proof of content. P calls R as a witness to recount what L said under oath. or photograph. Therefore. but what someone else told him. or defect in design or product. or explain its absence. recording. ³BE´ rule applies. E.g.g. Civil settlement offers/negotiations are excludable IF offered to prove liability or invalidity of a claim. or P by any means other than an original or duplicate. Collateral matter. the tape would still have to be authenticated! E. Video of Bank Robbery: Can put bank teller on as a witness. BUT. This is going to mislead the jury. is there a 403 argument? If someone's testifying. this is not a best evidence issue at all. the rule wants you to use it. Q2: The security guard is testifying about the content of the video. 410. Rationale: It's better for the exhibit to speak for itself rather than another. If you have access to the original.. AND covers statements made in efforts to settle. Q3: Now he is testifying not as to the contents of the videotape. IF: Original lost or destroyed. then R 1004 Rule 1004. must use the original. less effective. every word matters.

Relevancy Concerns: Most of these have only minimal relevance. It excludes plea discussion for ALL purposes BUT TWO. "Can I pay damages?" inadmissible under FRE 408. Proof of insurance is generally excludable. FRE 409: Under 408: My Applies ONLY if there is actually a dispute (whether or not a suit has been filed). NOT evidence existing prior to negotiations.Downloaded From OutlineDepot. Applies to withdrawn pleas AND nolo pleas. Covers what's said/done during negotiations. and plea bargaining are excludable from criminal cases. Principle applies to statements made by Ds to prosecuting attorneys. Withdrawn pleas. but then be excluded as confusing/misleading under 403. FRE 410 is a rule of expansive exclusion. if taken previously. These would probably get past 401. By contrast. the purpose is to implement policies unrelated to the litigation process. Can I pay damages?" IF there is a claim or dispute (e. and liability insurance (LI). when offered to prove negligence or due care. but insurance is sometimes provable to show: Ownership OR control. FRE 408 v. Introduction: General: These issues are so commonplace that specific rules are useful.g. 411 are rules of limited exclusion (exclude evidence for specific reasons. Can I pay your medical expenses?" Existence of claim unnecessary to keep out "can I pay your medical expenses." but "my bad" comes in. The rules ALL bar certain evidence to establish negligence.. If the evidence is admissible AFTER 407 . I'm going to sue you!). plea bargaining (PB). 2. Policy: Each exclusionary rule implements a policy unconnected with truthfinding. Settlements ARE sometimes permitted when they bear on other points. In some cases. 3. but allow for all other purposes). 1. bias in insurance adjusters). measures are taken that. but generally NOT to statements by Ds to police. liability or culpability. or to impeach (e. Subsequent Remedial Measures: 407 Language: "When. you still need to evaluate 403 (and any other evidentiary rules we discuss).411 are analyzed. after an injury or harm allegedly caused by an event. Under 409:"My bad. FRE 407-411 do NOT bar their admission. settlement offers (SO). would have made the injury or harm . Here. like the bias of a witness. Eldred Overview: 407-409. If evidence is being admitted for some other reason. Exclude and Limit: These rules apply to subsequent remedial measures (SRM).g.. narrow uses of the proof are permitted.

Downloaded From OutlineDepot.. This rule DOES NOT require the exclusion of evidence of subsequent measures when offered for another purpose. Form doesn't matter: The form of the statement doesn't matter (e. 3. Fairness issues: The "if controverted" proviso: This is to avoid attempts to evade the exclusionary principle by sharp crossexamination. or everything as proof of feasibility. Statements: Since talks fail. evidence of the subsequent measures is not admissible to prove negligence." Rationale (Found in ACN): 1. Dispute: It does NOT apply to every statement that follows the events that produce a . Lawyers and parties: Lawyer statements could normally be used against their clients under 801(d)(2)(C). It doesn't apply simply because someone comments about compensation. a defect in a product's design." Can say. control. it can only work if it applies to failed negotiations. Claim: A claim exists where a suit is filed. a. a. 3. and waste of time remain for consideration under Rule 403. Agreements: If the case doesn't settle. confusion of issues. or feasibility of precautionary measures. but it can exist prior to this because demands are made. or impeachment." Civil Settlement Offers and Negotiations: 408 Most jurisdictions exclude settlement agreements and statements regarding efforts to reach a settlement when offered to prove either "liability or the invalidity of the claim or its amount. or a defending party seeks dismissal on grounds that the claim was settled. Subsequent measures do not reliably indicate prior negligence or fault (things can always be made safer). Disputed Claim: ONLY applicable where there is a claim AND a dispute that goes either to validity or less likely to occur. a defect in a product. It seems unfair to penalize responsible behavior by allowing proof over objection. Even qualified assertions (admit to speeding) are excludable. proof of SRM is admissible. the principle normally applies and its excluded. Allowing proof would discourage these efforts. culpable conduct. so the principle applies. b. so long as the purpose of the parties was to try to settle the case. "my client was speeding).g. or take measures to prevent future accidents. don't need to say "suppose hypothetically. Feasibility: Where a party offers evidence that a change would be impossible or impracticable to prevent similar accidents. misleading the jury. 2." 1. 2. Otherwise the factors of undue prejudice. b. The principle does NOT apply where a party to a settlement agreement sues to enforce it. such as proving ownership. Parties should be encouraged to make repairs. if controverted. ACN: "The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. or a need for a warning or instruction.

If neither the validity nor the amount of a claim is disputed. Exceptions to the Rule Unclear whether the principle applies when the purpose is to impeach by contradiction. they settle and M doesn't want to pursue charges. 5." "Contrary to Rule 408.Downloaded From OutlineDepot. and that to hold otherwise would tend to discourage assistance to the injured person. hospital.. Criminal Cases: Plea agreements are subject to other exclusionary rules (FRE 410).. L steals M's car. and some courts have found that 408 applies here (so prosecutor's words are excluded as well). the addition was deemed unnecessary because the principle doesn't reach the material. The purpose is to encourage settlement of disputes.g. Later. Proving Bias: E. the principle doesn't apply. Refuting claim of undue delay: An insurance carrier can offer proof of settlement offers as a defense to undue delay. Pre-Existing Materials: Does not apply to documents/statements made prior to settlement negotiations.. or similar expenses of an injured party by the opposing party. Obstructing investigation: E. and be admissible to prove guilt or theft. there's proof that P settled/negotiated with X. a. This can be addressed on cross. If they exchange information during settlement talks. It's relevant on the issue of liability or damages. is not admissible. evidence of payment of claim. This difference in treatment . Initial Draft: "This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. c. the present rule does NOT extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. a.g.g. 6. because the rationale encouraging settlements would be undercut. The fact that the D paid money to the W might incline him to shade his testimony to favor the defense. b. Impeachment: Unclear here. P sues D. dealing with offers of compromise. Where a party settled with a nonparty who testifies as a witness. the reason often given being that such payment or offer is usually made from humane impulses and NOT from an admission of liability. Payment of Medical Expenses: 409 Language: "Evidence of furnishing or offering or promising to pay medical. hospital. 7. they're not covered. Excludable however. or that D settled/negotiated with Y. 410 doesn't cover statements by prosecutors (only Ds). 4." ACN: "[G]enerally. Applicability of FRE 408: Appears to apply only to civil cases ("claim" versus "charge"). the agreement is likely to be treated as an admission. Third-Party Settlement: E. or similar expenses occasioned by an injury is not admissible to prove liability for the injury. b. BUT." But.

Two-tiered standard: BUT. a." This applies to both private communications with a prosecutors. Could be constitutional reasons though (e. Applicable to Prosecutors(?) p. without admitting to civil liability.g.). This is NOT SO in cases of payments or offers or promises to pay medical expenses. Permissible Uses of Plea Bargaining Statements: There are no exceptions. 2. b. but 803(22) says "excluding felony conviction that rests 'upon a plea of NC. 4. Nolo pleas are excludable from civil litigation. Exclusion can occur: 1. and when a formal plea is entered.'" arises from fundamental differences in nature. a. Perjury: Still can get hit with perjury if you lie. Also. 133 Fisher: Some courts ignore the strict language and bar evidence offered against prosecutors.Downloaded From OutlineDepot. have said that it applies to the prosecution just as much as it applies to the defendant. Can obviate a criminal trial. Completeness. Plea Bargaining Statements: 410(3) Statements by Ds and their lawyers during plea bargaining are excludable if they fail to reach an agreement.." Eldred: Most courts. This concerns statements made during plea negotiations and certain pleas as well. 1. IF the statements/actions by such agents make the D think negotiations can proceed. but others will be tried (otherwise the purpose would be undercut). 5th and 6th Am. not even for impeachment. where factual statements may be expected to be incidental in nature. b. but "admitting such evidence would discourage prosecutors from negotiating pleas and would thereby frustrate the purpose of the rule. sometimes law enforcement can get involved in plea bargaining. Withdrawn Pleas: 410(1) After a plea is entered. and consequently broad protection of statements is needed. Nolo Pleas: 410(2) Pleas of "no contest" may be entered by court permission. encourages Ds to cooperate in the prosecution of their cohorts. Narrowly framed: Allows the defendant to exclude statements made during "plea discussions" that involve "an attorney for the prosecuting authority. There's no mention of using nolo contendere convictions. it can be withdrawn for good reason with court permission. as a matter of judicial discretion. Same is true if the pleas only disposes of some of the charges. and 2. the plea and the plea bargain themselves are excludable. IF that belief is reasonable under the circumstances." Pleas and Plea Bargaining: 410 Strong policy in favor of plea bargaining (system would crumble otherwise). Where it then proceeds to trial. The rule doesn't restrict the evidence by its language. and for making false . Statements to police: Statements given by suspects to police are generally NOT excludable as attempts to engage in plea bargaining. Communication is essential if compromises are to be effected.

Rationale: 1. 404(3) & 607-09. Proof is admissible when it tends to show such points. ownership. Impeachment: NO EXCEPTION to use plea bargaining statements to impeach. 404(a)(2). The Character-Propensity Rule: 404 Language of 404(a): Character evidence generally: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. meaning. b. When they testify to the substance of these statements. control: Shows a person has an interest. 404(a)(1). Policy Rationales: Preventative detention. or avoid where one is uncovered." (about the prior acts). [3. Proof of liability insurance can be easily misused. It is irrelevant on issues of carefulness versus negligence (insurance leads to carelessness v.] Character Evidence: 404(b). this right CAN BE WAIVED. it wouldn't pass. 3. 415. except . 413. 404(b)'s "Other acts evidence. 413-15. Might tempt the jury to find liability where none exists. Evidence CAN be offered for more than one purpose! People v. so it should be codified. c. the connection to a liability carrier may be shown when it bears on the bias in their testimony or the possible accuracy of their written work. Exceptions: a. Proof of Liability Insurance: 411 Proof of liability insurance CANNOT be used to show negligence or other wrongful conduct. statements. 414." is NOT an "exception.Downloaded From OutlineDepot. BUT. insurance shows foresight) 2. . proving action in conformity with the character trait. 406 A. 1." because it does not depend on propensity reasoning. and the clause is usually found in a proffer agreement or plea bargain. Zackowitz: Key Question: ‡"Whether or not the evidence of weapons (3 guns." General Notes: This is a general rule of exclusion. Like 407-411. 405. . Congress has made a policy determination that if we were to do a 403 balancing of propensity evidence. Confusion of the jury. and a gas/pen combo) should be admissible for the purpose of showing guilt?" 404(a) : General Rule Evidence of character is NOT admissible to prove propensity. and the exceptions are found in 404(a)(1) & (2). . Impeachment: Insurance investigators/adjusters often perform interviews. To prevent "mini-trials.

be admissible for other purposes. If you add the knowledge that the person has been previously convicted of the crime before. Drug Seller: Problem 3.] 404(a)(2): The defendant CAN offer evidence of victim's character---by way of OPINION. MIGHT warrant a FRE 105 limiting instruction. . of the general nature of any such evidence it intends to introduce at trial. REPUTATION--in certain cases (homicide. Is the evidence/act part and parcel of the charged case? 2. If admitted.] Other acts (bad acts/crimes/whatever) MAY be admissible so long as offered for a reason OTHER THAN to show propensity.. is a limiting instruction appropriate? 105. OR absence of mistake or accident.] Character evidence and crimes of sexual offense/assault/molestation cases. be able to be introduced to show that he did it in this case? Everyone can sell drugs.] 404(a)(1): The defendant CAN offer evidence of HIS character ("open the door")--by way of OPINION. E. Ultimately. such as proof of EXCEPTIONS: ****************************************************************** [1. B. Should other act nonetheless be excluded under 403? 5. or during trial if the court excuses pretrial notice on good cause shown.. or acts" "Evidence of other crimes. however. [3. Other Key Points: "Other acts" don't have to be criminal! "Other Acts" can be dissimilar to the charged crime. wrongs.] Character evidence is admissible in a narrow category of cases in which character ITSELF is an element of the OFFENSE or DEFENSE. or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. REPUTATION--to show good character when in issue. [2. knowledge.Downloaded From OutlineDepot. Notice under FRE 404(b). The need of the evidence is ALSO important in these kinds of cases. [5. adultery.g.g. preparation. It MAY." IF admitted. wrongs. Language of 404(b): "Other crimes. not murder in Presumed Innocent) "Other Acts" can be subsequent (Peltier). Could a jury reasonably find by a preponderance of the evidence that the D committed the other act? 104(b) 4. Routes Around the Box: Proof of Prior Acts Under 404(b) Doing a 404(b) Analysis: 1. If not. there's a substantial likelihood of prejudice. is "other act" probative of something other than character that is relevant to this case? 404(b) 3. intent. the prosecution in a criminal case shall provide reasonable notice in advance of trial. provided that upon request by the accused. (e. etc.). therefore it's not great to introduce for knowledge. identity. jury decides how much to weigh the evidence. [4.2: Should the fact that the D was convicted previously for sale of drugs. Must be "reasonable" unless excused for "good cause" shown. opportunity. plan.

Then. meaning information that reasonably leads her to believe it to be true. evidence that is NOT part of the crime. had access to some instrumentality. Prosecutor¶s are held to the ³good faith basis. This is a great problem to show the difference between evidence that is likely admissible because it's evidence of the crime vs. Can use this to admit crimes that were performed with a distinctive modus operandi ("signature" crimes) that identify him as the person who committed the charged crime. and therefore likely propensity evidence.g. a lawyer can ask a question on cross-examination if she has a ³good faith basis´. OPINION.. Admit EV that a D has an expensive drug habit to prove motive for a financial crime like bank robbery. 1. 403 Balance (Harrison Ford): Side Note: ³Good Faith´ Doctrine: In general. U. Proof of Opportunity: Can show that the D was in the vicinity (e. It'd be tough to get the bomb stuff in as it's probably for another crime. Character evidence is generally admissible when character is an element of a charge. Trenkler: Modus Operandi Key Evidentiary Issue: Error to admit the Quincy bombing under 404(b) to prove identity via MO. intent. and SPECIFIC INSTANCES). and preparation may all tend to identify a D as the perpetrator. prison break). MAY be admitted if offered for another reason (404(b) is not exhaustive.S. and would be used purely as propensity.3). Can offer prior crimes.Downloaded From OutlineDepot.. and all three forms of proof are available (REPUTATION. D denies passing counterfeit money ("didn't know it was counterfeit"). Found with bomb-making materials and dead cop's gun. it SHOULD BE excluded. opportunity. distinctive way. things get murkier when it is defense Generally: If OTHER ACTS are offered to prove bad character for propensity purposes. U.g. 2. v. or familiarity or experience to commit the cirme.). claim. can ask a question in an attempt to undermine a witness even if he believes him to be telling the truth.´ BUT the ABA has taken the position that a defense lawyer. as part of her function to put the prosecution to its proof.g. act for ANY relevant purpose that does NOT require an inference from character to conduct.. finish with a 403 analysis.S. Note: Government moved in limine to determine whether Quincy was . knowledge. v. Where prior crimes are offered to prove motive. A person who possess the victim's gun is more likely to be the perpetrator than some random person. Proof of Identity Motive. a previous conviction for selling counterfeit money would be admitted. the need NOT be similar in nature to the charged offense..´ (Model Rule 3. plan. Proof of Knowledge E. BUT in a criminal case. Assuming it was committed in the same. wrongs. or defense.g.. Peltier E. Proof of Motive E. 3.

If it makes it more believable. Key is that the evidence must demonstrate that this is the defendant¶s signature! Standard of proof: Huddleston: Need NOT prove beyond a reasonable doubt: ONLY "Whether the jury could reasonably find the conditional fact {the other act] by a preponderance of the evidence.g.'" Does NOT have to be an exact replica.. Intent E. Some who had previously killed a wife would be more careful when cleaning than the average person. court says bombings are pretty distinctive). ³sufficient idiosyncrasy´.g. Someone who did an act in the past. right? How about just the 401 standard? 104(b) might also be applicable.k." P could prove D possessed other child pornography. D charged with unlawful receipt of child porn.. res gesta or "inextricably intertwined").´ rather ³so distinctive that nobody else could have committed this crime.." the jury will wonder why she remembers details of the gun.g. It shows the person is highly reckless/dangerous.a.Downloaded From OutlineDepot.. Possession of objects to facilitate an escape where D was involved in . Although one might believe it's the "same gun. 6. It must be MORE than a "collection of 'prosaic commonalities that cannot give rise to an inference that the same person was involved in both acts without regerence to propensity. It could show state of mind. pointed at her head. 4. it's part of the "narrative integrity" (a. not ³prosaic commonality´ Note what Fisher says: Not enough to show that this was ³the defendant¶s kind of crime. Was the court right to exclude this? Probably. "Russian Roulette" can't say RR. Why? 404(b) NOTICE requirement. This is substantially prejudicial. "I didn't know they were underage. Unfair prejudice -> Propensity 5. would probably be less likely to do it again. This is evidence just like any other. Key test: Must be ³handiwork´.´ Why? Otherwise it¶s just propensity reasoning. RR is negative character evidence. Degree of Similarity: It will depend on the area of law (e.´ Here. Absence of Mistake or Accident E. E. Most judges would probably allow. but HERE the court said that it must be "sufficiently idiosyncratic. Killed first wife on accident. Events that make it more memorable make her testimony more believable. Narrative Integrity e. but VERY probative. and an exact match is NOT necessary. defendant admitted to the prior bombing. But what if he hadn¶t? P/E admissible.g.g. Prosecution for possessing a gun with an obliterated serial number." That can be proven by a preponderance of the evidence. Cleaning Gun.

com one before.. Court often will allow prior drug sales as proof that he had the intent. this rationale does NOT apply.g. 415: Applies to civil cases concerning sexual assault/child molestation.. Drug Sale. Limiting Principle: ONLY when intent is at issue! If the D denies that it was him.g. D prosecuted for att. 414. Preparation: E. The prosecution must offer "evidence of the D's commission of another offense or offenses of sexual assault" or child molestation. E. U. . Plan: e. 7. 8. D is charged with conspiracy to import illegal drugs. Proof that D stole a car the day before to use a getaway would be admissible as preparation." Can bring in prior conviction for car theft to show intent. Prosecution for car theft. 415. and The need for evidence beyond the testimony of the defendant and alleged victim. but denies he had the intent. C. NOT whether the D committed the crime.g. These rules REQUIRE that proof is made by specific acts.. E. bank robbery. EV of a victim's reputation for engaging in sexual behavior is barred in ALL CRIMINAL CASES. 1.S.Downloaded From OutlineDepot. The frequency of the prior acts. Proof that he attempted to bribe customs agents would be useful. Rationale: It's limited to the issue of state of mind. Generally allowed ONLY where intent in a genuine issue in the case (where D denies acting w/ wrongful intent). 415 Overview: 413: Applies to criminal prosecutions where D is charged with sexual assault. D. Note: Proof: 405(a)'s O/R proof requirement does NOT apply to 413. Congress intended the terms "sexual behavior" and "sexual predisposition" to be broadly construed (See ACN to 1994 Am. D charged with intent to sell. D claimed "borrowed. 412 excludes ALL evidence with minor exceptions. 413 does NOT eliminate 403 balancing 413 ALSO does NOT require a special type of 403 balancing.g. 414. 414: Applies when the D (presumably criminal) is accused of child molestation. The Rape Shield Law: FRE 412 General/Key Points: Like 410. Guardia: Key Issue: Whether 413 eliminates 403 balancing.) 2. Propensity Evidence in Sexual Assault Cases: 413.. The closeness in time of the prior acts to the charged acts. The presence or lack of intervening events. 412(b)(1). Factors to be considered in 403 balancing: Similarity of the prior acts to the acts charged. v.

Procedural protections in 412. . the VICTIM must place in controversy "reputation evidence" for it to be admissible. To protect a defendant's constitutional rights. In criminal cases. The prosecution ON CROSS-EXAMINATION can inquire about reputation. Problem 5. Between the alleged victim and the defendant: i. 404(a)(2). it would be admissible. Proof of Defendant's and Victim's Character: 404(a)(1). 405(a). THREE EXCEPTIONS where specific instances of conduct ARE admissible: A. If the D introduces character EV. D can offer EV on a pertinent character trait. substantively. 412(b)(1)(A) B. Offered by the defendant to prove consent. are the prior false allegations admissible? Not going to come in under 412. and 404(a)(3) (character of witness) are TRUE exceptions (unlike 404(b)) to this general rule because the proposed evidence IS being offered to show action in conformity with a person's character. If it's being used as impeachment evidence (under Rule 412). 412(b)(1)(B) ii. C. he may do so ONLY by reputation OR opinion." State v. 403 ALWAYS APPLIES! 6. which the prosecution CAN then rebut. This doesn't go. as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused. 4. To prove another person (not the D) is the source of semen. Offered by the prosecution. E.2: Fingerprints: D claims the source of the fingerprints was his presence a month before the alleged crime." Under Rule 412. 405 Overview/EXAM ANALYSIS: Character evidence generally inadmissible to show action in conformity therewith. injury or other physical evidence. 5. 404(a)(2) (character of alleged victim). 404(a) 404(a)(1) (character of accused). the defendant must be afforded an opportunity to prove that another person was responsible. BUT the ACN says: "Admissible pursuant to this exception might be evidence of prior instances of sexual activities between the alleged victim and the accused. to whether the act happened. good cause otherwise. 404(a)(1). etc. 412(b)(2).Downloaded From OutlineDepot. In civil cases. 14 day notice. when he and the complainant had consensual sex. state purpose. and in camera hearing. Smith: Key Issue: Trial court precluded the D from introducing evidence that the victim has made prior false allegations about being "touched. Under 412(b)(1)(B) it's probably an issue of whether the specific alleged act was consensual." Under 412(b)(1)(A) the ACN says: "Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused. 3. subdivision c. or voiced sexual fantasies involving the specific accused.

testimony by Bonds that Roger "has a reputation for honesty" is permissible. ." E.In a criminal case.") (1) Prosecution needs to be able to test the validity of the claimed reputation. Prosecution CAN rebut by calling a character witness on the SAME TRAIT. then the prosecution CAN introduce evidence. except: (1) Character of accused . 227 "The price a D must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed . proof may be made by testimony as to reputation OR by testimony in the form of an opinion. .g. FRE 404(a)(1): Character of accused Language: "(a) Character evidence generally: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Once the door is open. 405(a). (2) Because questions about the witness' basis of knowledge or familiarity with the defendant are always relevant. So.. The P can ask Barry Bonds on cross whether he knows that Roger once cheated on his taxes (Roger put character in issue). "By the prosecution to rebut the same . 227: Character witness must be qualified to show that he knows enough either . evidence of the same trait of character of the accused offered by the prosecution . On CROSS-EXAMINATION.Downloaded From OutlineDepot. In all cases in which evidence of character or a trait of character of a person is admissible. It has to be a PERTINENT character trait: Need to ask: Is it a "pertinent" character trait? Clemens was on trial here for perjury ("honesty"). inquiry is allowable into relevant specific instances of conduct (emphasis added). Michelson v. or specific instance of conduct. or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2). evidence of a pertinent trait of character offered by an accused. Note: The second rationale is NOT being offered as propensity evidence! Sufficient Basis for Opinion: p. 405(a). The question is being asked to see whether the witness knows what he's talking about in testifying about the defendant's opinion. FRE 405(a): Methods of Proving Character Language: "(a) Reputation or opinion." The witness is not being asked the question on a propensity basis. or by the prosecution to rebut the same. United States: Key Issue: Whether it was error to allow the prosecution to inquire into a character witnesses' knowledge of D's 1920's arrest for "receiving stolen goods. It ONLY applies to a criminal case. the prosecution can call witnesses to rebut Bonds' testimony." General: On its face: MUST BE a criminal case. . Rationale: (p. (emphasis added). . . If the defendant initially begins the discussion on character evidence ("opening the door"). .

AFTER the defendant offers evidence of V's character.17: Character of Victim II: U." Could be "I'm not about the D or his reputation in the community to be competent to provide testimony about the D's reputation. it would "over-persuade" and be "unfairly prejudicial. Defense should argue. Therefore. before proceeding with an analysis. Note: On an EXAM. Once the defendant initiates. E. inquiry is allowable into relevant specific instances of conduct (emphasis added). and subject to the limitations imposed by Rule 412.etc. . On cross-examination. "Good Faith Rule": Things that lead a reasonable lawyer to believe that they have a basis in fact. Problem 3. Problem 3. don't forget about 403! How could the jury NOT want to punish her if she has shot at someone in the past? FRE 404(a)(2): Character of alleged victim Language: Character of alleged victim . (p.Downloaded From OutlineDepot. evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused.g. we're going to allow the prosecution to defend the decedent. (p. Side Note: ABA Criminal Justice Practice: (Defendant's don't have to have a "good faith" basis). the D has opened the door. James All of this evidence is being offered to show that he has been a violent guy IN THE PAST. They're no longer alive. Key Aspects: 1. . Eyewitness to a homicide. the prosecution CAN offer evidence on the SAME TRAIT of the D. 405(a). the victim pulled out his knife first and tried to stab. 26-27): D cannot prove character by "specific acts" because we don't want minitrials on so many collateral matters." but could also be putting character into issue. Special Wrinkle: IN HOMICIDE CASES If the D does ANYTHING to suggest or try to prove that the victim was the initial aggressor. . Even if it gets through. Proof under 405(a): Proof may be made by testimony as to reputation or by testimony in the form of an opinion. or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.In a criminal case. D says. Also. To prevent this would be a violation of the confrontation clause. "I wouldn't shoot anybody. 2. we'd have to establish that this IS or IS NOT character evidence.15: I wouldn't shoot anybody! Can she put her own character at issue? Yes. Evidence of peace should be allowed because the victim is no longer available. General: Only the defendant can initiate. MUST BE by opinion OR reputation. that according to the ABA Standards . v. The role of the defense is to "test the prosecutions case" of whether there's reasonable doubt that the prosecution has proven its case.S. 225-26): If the P were allowed on their case-in-chief to prove guilt. Here. or by the prosecution to rebut the same.

The doing of the habitual acts may become semi-automatic. temperance. both lay and psychological. such as honesty. is the person's regular practice of meeting a particular kind of situation with a specific type of conduct. or of one's disposition in respect to a general trait. Certainly the very volitional basis of the activity . whether corroborated or not and regardless of the presence of eyewitnesses. She'll get acquitted because he's a bad guy. or defense. 'Habit. or of giving the hand-signal for a left turn.g.' in modern usage. BUT. proof may also be made of specific instances of that person's conduct. or peacefulness. is more specific. It describes one's regular response to a repeated specific situation. not action done in conformity with that trait. Proof: So. where character is an essential element in dispute." "It seems apparent to us that an individual's religious practices would not be the type of activities which would lend themselves to the characterization of 'invariable regularity. Entrapment: P would need to show that D was "predisposed" to commit the crime. on the other hand. Character as good/bad parent is the issue. NOTE: In these cases. it goes toward her state of mind. F.Downloaded From OutlineDepot. such as the habit of going down a particular stairway two stairs at a time. the jury wont be able to distinguish in their mind.." ACN: "Character is a generalized description of one's disposition. The litigant is trying to prove the existence of the character trait. FRE 405(b): Proving Character by Specific Instances of Conduct Language: "In cases in which character or a trait of character of a person is an essential element of a charge. It's being introduced to show that her fear was reasonable because he has been violent in the past.g. Evidence of Habit/Routine Practice of an Organization: 406 Language: "Evidence of the habit of a person or of the routine practice of an organization. This is NOT being offered for propensity purposes. liar). Defamation: Trial will focus on whether the P was indeed the thing accused (e. reputation. can prove by opinion.. Existence of the trait is crucial. claim. is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Child custody: Judge must determine which parent is the better parent. bully. there is no trip through the box. or of alighting from railway cars while they are moving." These types of cases are fairly limited: E." "A habit. Character before the crime is the issue. 401: It makes it more likely than it would otherwise be that she had a reasonable fear. and specific instances of conduct. Prosecution will bring in a 403 argument: This is overwhelmingly prejudicial.

405(a) & (b): Methods of proving character.] Impeachment & Character for Truthfulness: 404(a)(3). Also." ACN's says: Things that are volitional can move into habits. 608. 376: "Party must be able to show on voir raises serious questions as to its invariable nature. then it's cuts against "volition. 609) AND other forms of impeachment Fisher: It's the difference between "You're Lying" and "You're a Liar (and therefore you are lying). 608. 607. 609 General: Definition: "A lawyer impeaches a witness by casting doubt on the witness's accuracy OR trustworthiness. It's difficult to establish habit. [4. the less probative it it. Halloran: "One who demonstrates a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again . 608(b): Specific untruthful conduct/no extrinsic evidence. and mechanical regularity in this case. and hence its probative value. that he expects to prove a sufficient number of instances of the conduct in question. Modes of Impeachment: . Seltzer prescribed them steroids that he misrepresented to be antihistamines? If there's a calculation in each instance (a weighing). Did so on thousands of occasions. volitional. Problems: Halloran v. consider that if we broaden this we're allowing an increase in the ability to offer habit evidence to show action in conformity therewith. and the prosecution can rebut. exploded. A. Problem 3." Side Note: "Voir dire" in this context relates to a discussion outside of the jury's presence to determine whether or not the piece of evidence can actually be proven." IMPORTANT!: MUST distinguish character evidence to impeach (under 607. Non-character impeachment: Bias Contradiction Prior Inconsistent Statements 608: Impeachment by character evidence 608(a): Opinion and Reputation. . Sec. Should have been admitted." THEREFORE: The more conscious. ." Summary/Overview: 404(a)(1)&(2): D in a criminal case can introduce character evidence on a pertinent character trait. VA Chem: F: Use of immersion coil to heat Freon." Wigmore. and variable the nature of the activity.19: Steroids: Should the court allow testimony from 8 other patients to prove that Dr.Downloaded From OutlineDepot.

The limitations in 608 do NOT apply to non-character impeachment. CAN'T attack the character for truthfulness of a party who has not testified.g.g.2: Character for Truthfulness (Impeachment by Opinion. and Cross-Examination About Past Lies): 404(a)(3).. You're causing them to contradict themselves on the witness Language: 607 . UNLIKE 404(a)(1) & 404(a)(2) this applies to BOTH CRIMINAL & CIVIL cases.. E. but RATHER the particular facts of this case. but RATHER the particular facts of this case. NOTE: There may be other constraints on these forms of impeachment: i.Who May Impeach: "The credibility of a witness may be attacked by any party. E. This is PURE propensity. Reputation. impeachment does NOT depend on the character of the witness. The inconsistent statement is being offered to establish inconsistency in testimony. . hearsay. but RATHER the particular facts of this case.1: Non-Character Forms of Impeachment: THREE TYPES 1. mistaken. including the party calling the witness. except . BIAS: D: Where the witness has a reason to slant his/her testimony toward one party. PRIOR INCONSISTENT STATEMENTS: D: Witness has said different things at different times.. CONTRADICTION: D: The facts are not what the witness claims them to be (either the witness is lying. E. Brother's Keeper Again. .g." B. 3. . The idea is that if he lies in general there's a probability he's lying in court. Can only rehabilitate under 608(a) AFTER the truthfulness is attacked.Downloaded From OutlineDepot. unfair prejudice--but NOT FRE 607-609 B. privilege. and to cast doubt on credibility. relevance. Language of Rules: Rule 404(a): "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.e. Like the other 3. 608 General: This concerns a witness being a liar in general. impeachment does NOT depend on the character of the witness. therefore is NOT worthy of belief at trial. 403(a)(3) is a true exception to the rule against propensity evidence. A Few Good Men Impeachment does NOT depend on the character of the witness. 2. Other Key Points: ONLY applies after someone becomes a witness. or poor narration). You've said Car A came through the intersection (the video shows it was car b). poor memory.

and (2) evidence of truthful character [to rehabilitate] is admissible ONLY AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. other than conviction of crime as provided in rule 609." The Prosecution CAN call a witness to impeach Bonds' testimony under 608(b)." Rule 608. C. .com . Evidence of Character and Conduct of Witness (a) Opinion and reputation evidence of character. 404(a)(3) Character of witness . (b) Specific instances of conduct. 608(b): "Specific instances of the conduct of a witness. less trustworthy than others. for the purpose of attacking or supporting the witness' character for truthfulness. as provided in rules 607. however. . may not be proved by extrinsic evidence. The giving of testimony. . Specific instances of the conduct of a witness. It goes to truthfulness of the witness' character. FRE 609 is probably the most cited rule after 404(b).Downloaded From OutlineDepot. They MAY. isn't it true that you were questioned by the FBI about your steroid use and you lied? It's a specific instance of conduct. AND It's on cross-examination. and 609. Impeachment with Past Convictions: 609 General Theory: (1) People who have committed serious crimes are. The credibility of a witness MAY be attacked or supported by evidence in the form of OPINION or REPUTATION." Clemens/Bonds Hypothetical: Is Barry Bonds' own use of steroids relevant to determine whether he's being untruthful? Question: Is there a relationship between the use of steroids and acting untruthful? Can you use the steroid information to establish lying? No! Can we ask Barry. for the purpose of attacking or supporting the witness' character for truthfulness. does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. Can we offer evidence to show that Barry lies about using them? (minitrials?) NO! This is extrinsic evidence. be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. may not be proved by extrinsic evidence.Evidence of the character of a witness. but subject to these limitations: (1) the evidence may refer ONLY to character for truthfulness or untruthfulness. There wasn't a conviction. under 608(b) WE'RE STUCK with the WITNESS'S TESTIMONY. in the discretion of the court. whether by an accused or by any other witness. if probative of truthfulness or untruthfulness. or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. other than conviction of crime as provided in rule 609. SO. in general. and (2) Some crimes are more probative of truthfulness than others. 608.

609(a)(2): ALL Witnesses/Defendants: Any crime involving dishonesty/false statements shall be admitted. ALSO: Whether or not it¶s a crime that involves proof of dishonest or false statement has to be readily determinable under 609(a)(2)! Breaking Down the Rule: 609(a)(1): Witness with felony conviction. if [Gross Simplification of the Rule:] Rule 609 permits impeaching a witness OR defendant with evidence of a felony conviction. or with evidence of any conviction involving dishonesty OR a false statement. NO discretion. the commission of which involves some element of deceit. or any other offense in the nature of crimen falsi. NO balancing! (this is unique under the rules!) ACN to 2006 Am. subject to 403. "Admittedly. must be LESS THAN 10 years old. Think of this as "REVERSE 403" BALANCING. false statement. when fair to do so. annulment. IF OLDER. or other procedure based on innocence INADMISSIBLE. AND. Strong presumption AGAINST admissibility. even if it were admissible. Key!: If the EV doesn't qualify UNDER 609 because there was NO conviction. So. STILL decide if it's admissible under 608! NOTE: MOST COURTS (discretionary under 608(b)) won't allow EV that is inadmissible under 609 through the backdoor of FRE 608(b). BUT. offenses classified as crimina falsi have included only those crimes in which the ultimate criminal act was itself an act of deceit." Historically.: "[D]ishonesty and false statement" it meant "crimes such as perjury. or falsification bearing on the [witness's] propensity to testify truthfully. Felony OR misdemeanor." So. or other procedure. from date of release. it would have to get past 403. however. the prosecution has the burden of proof for defendant-witnesses Different standards because the rule is concerned about protecting criminal defendants because the jury might engage in propensity reasoning. admissible ONLY with advance NOTICE AND in interest of justice (probative value "substantially" outweighs unfair prejudice). there is a presumption in favor of admissibility for witnesses 609(a)(1): Defendant-Witness with felony conviction. subornation of perjury. or false pretense. then CAN'T have had a subsequent felony. subject to special balancing test ("SBT") (probative value > prejudice) SBT: "If the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. 609(d): Juvenile adjudications: Juvenile adjudications inadmissible against D and in civil cases. untruthfulness. BUT may be admitted. so long as conviction is less than 10 years old. in criminal cases against non-defendant witnesses ON credibility ACN: NO discretion when sought to be offered against accused." 609(b): Time Limit Conviction. or certificate of rehabilitation: Pardon.Downloaded From OutlineDepot. annulment. criminal fraud. embezzlement. 609(c): Effect of pardon. the rehabilitative process may in a given case be a . annulment.

E. In the parlance of common law. was for kidnapping. bias. It does NOT address how FRE 609 applies to non-defendant witnesses. (5) The centrality of the credibility issue. United States. Isn't it true you wore a red dress yesterday? . or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. waste of time. then it¶s a case-by-case determination. 383 F.C. Use of Extrinsic Evidence: CANNOT introduce extrinsic evidence under 608(b). Violence has little or no direct bearing on honesty and veracity.. Question: When is character for truthfulness "attacked"? Bias? NO! Contradiction? Probably not. strong reasons for exclusion arise. If there is a NON-CHARACTER REASON (i. Key: Only applies when the sole purpose of the extrinsic evidence relates to character. Prior Inconsistent Statement? Probably not. This factor favors admission. which provides the factors a court should consider in determining whether to admit a prior conviction as impeachment evidence against a DEFENDANT who takes the witness stand in a criminal case. 5-Part Balancing Test (Gordon v. no extrinsic evidence if it is ³collateral´ to matters in dispute. v. then 608 and its restrictions do NOT apply! E.e.. Brewer: D on trial for kidnapping. impeachment by contradiction. The proper calculation for non-defendant witnesses under FRE 609(a)(1) is whether the conviction's probative value is substantially outweighed by unfair prejudice.): (1) The nature of the crime. 17 years demonstrated failure. want to introduce 4 past convictions. PIS). Where same crime. and under 405(a) the litigant reaches a dead end after cross-examination (no other evidence allowed).Downloaded From OutlineDepot. (2) The time of conviction and the witness¶ subsequent history. D. and under 609(a)(2) is whether the crime is for dishonesty or false statement." (4) Importance of defendant¶s testimony.g. but maybe if evidence is of pervasive lies. but maybe if evidence is of pervasive lies. 1967). NOTE: THIS WILL BE ON THE EXAM. or juror confusion under FRE 403. and This factor favors nonadmission. U.2d 936 (D. The D's subsequent convictions while on parole support the admission of the convictions. Rehabilitation: Under 608(a)(2) CAN only rehabilitate AFTER character for truthfulness has been attacked. REMEMBER: If impeachment is NOT character based.S. The Brewer decision cites Gordon v. Cir. because jurors think that "if he did it before.S." U. he probably did it this time. 1. (3) Similarity between the past crime and the charged crime.

Now. 613. 803. 2) Sixth Amendment is very important when we discuss hearsay. 803(1)-(10).Downloaded From OutlineDepot. no extrinsic evidence Fisher p. 806. or isn't able to know right from wrong. 802. key is FRE 403: Is the probative value of the extrinsic evidence is substantially outweighed by waste of time. prejudice? If so.. In state courts. 2 Key Points: 1) Constitution trumps FRE. General Rule of Competency . much litigation over whether the constitution protects a defendant¶s right to impeach the general character of a complainant about past false allegations (i. the evidence matters. NOT an issue under FRE 412.A. there is no consensus. If you are an opponent. Rule 601. 807).com Under FRE. FRE 412 Context (Rape Shield Law). Smith). 802(d)(2)(A)-(E).e. the applicability of Olden v. recall. State v. 804.g. come up with a theory of admissibility. confusion. but is it sound? Is the witness competent? Is the witness's proposed testimony trustworthy? Competency: FRE 601 Competency is only an issue if the witness can't communicate. 304: Because bias is NOT deemed a collateral matter. 602.. 612. [5. If you are a proponent of the evidence. 804. extrinsic evidence to prove bias IS allowed. as Fisher points out. Confrontation Clause Side Note: Sixth Amendment to US Constitution protects defendant¶s right to confront his or her accusers. Kentucky). then look for other ways to prevent the evidence! FRE 602? FRE 403? FRE 104(a)? A.g. resist ALL theories.. Introduction Now we're moving away from relevancy. Is it offered for the truth of the matter asserted? Does it fit within an exception (e.] Reliability: The Rule Against Hearsay: 801(a)-(c). 104(a). 801(d)(1). 807 !!!!HOW TO DO YOUR HEARSAY ANALYSIS !!!! Do your step by step analysis: Is it an out of court statement? Verbal/non verbal assertion. which does NOT prohibit evidence of past false allegations (e.

com "Every person is competent to be a witness except as otherwise provided in these rules.. 801(b). non-hearsay Testimony: Four possible sources of unreliability (in testimonial capacities): E. in civil actions and proceedings. The Oath: Ws must swear/affirm that they will tell the truth (religious. memory. General Problems with Hearsay: Can't cross-examine the declarant." In ENGLISH (LIF): Hearsay is: (1) A statement. W must answer questions while facing the accused." 1. B. Convicted Felons: Rule 609 Defendants: Bias Children: ?? Cross-exam? 602: Personal Knowledge Required! Language: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." 801(c): Hearsay Defined: ""Hearsay" is a statement. 4.Downloaded From OutlineDepot." Except experts (who are governed by 703). Narration: W means to say Tom. Memory: W saw/recognized Tom." . "Then I saw John pull the trigger. If competency is about WHO can be a witness. 2. Normal. precision. and trustworthiness. hearsay is about WHAT they can be a witness to. but now thinks it was John. Also. Demeanor Evidence: Jurors watch faces/mannerisms. 801(b): "Declarant": "A "declarant" is a person who makes a statement. Cross-Examination: Opposing counsel probes for deficiencies in perception. Therefore. Solemnity prompts sincerity and care. offered in evidence to prove the truth of the matter asserted. Breaking Down the Rule/Language: 802: "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. However. 3. the competency of a witness shall be determined in accordance with State law. (2) Made by the declarant outside of this trial or hearing. Sincerity: W means to deceive. but says John. with respect to an element of a claim or defense as to which State law supplies the rule of decision. 2. Can't observe the declarant's demeanor. narration. and (3) Offered to prove the truth of the matter asserted in that statement. 3. other than one made by the declarant while testifying at the trial or hearing. Perception: W saw Tom pull trigger. signs of stress. and sincerity. and judge intellect. Defining Hearsay: 801(a).g. perjury pressure). but mistook him for John." Competency Compromises: Interested Parties: BIAS Non-Christians: Rules 603 and 610 Racial Minorities: 14th Amendment. The Basic Rule Hearsay is ALL about the reliability of the evidence the jury hears. Witnesses are permitted to testify because we can test them with three tools: 1. 801(c) & 802 1. Declarant NOT under oath.

Even if what AB said was 801(a): "Statement": "A "statement" is: (1) An oral or written assertion.e.g. a declarant can trigger a legal right or duty or commit an offense. the statement is NOT hearsay! Focus on whether it matters that the OOC statement is true. likely hearsay... To prove a legal right. an assertion is an intent to communicate something to someone. "Offered to Prove the Point Asserted": Is the litigant offering the statement to prove the truth of what's asserted?. Testimonial capacity doesn't matter. Heinze . The truth of the OOC statement is irrelevant." can create a K. or (2) Nonverbal conduct of a person. BC could have reasonable fear. If so. These are "verbal acts. E." because they have objective meaning. EV of inconsistent statements offered ONLY to impeach therefore is not hearsay. Statement offered to show it was reasonable for BC to have fear. If other conditions met.Downloaded From OutlineDepot. The evidentiary significance of AB¶s words. To impeach by prior inconsistent statement. "I do. E.. ANALYSIS: Under Rule 801(c) we MUST ask two questions to decide whether any particular out-of-court statement is hearsay: (1) Is the litigant offering the statement to prove (the truth of) what it says or was meant to say? (2) Did the declarant assert . Legally Operative Words (Verbal Acts): Simply by uttering certain words. so his/her testimony on this point can¶t be trusted. All these statements operate independently of the speaker¶s belief or intended meaning.that is. when offered to prove the defendant¶s reasonable fear of Joey. it does not matter that the opposing lawyer can¶t subject AB to oath/presence b/f the jury/cross-examination. Inconsistent Statements Offered to Impeach: The theory is that the out-of-court statement proves that the witness has said different things at different times about this fact. so there's no reason to exclude as hearsay.. "I will kill you" can constitute a threat. **Nonhearsay Uses of Out-of-Court Statements** Words Offered to Prove Their Effect on the Listener: E. i. did she mean to communicate . Statement not offered for truth (not offered to prove Joey had a gun). or For some other reason?. For effect on listener. E. if it is intended by the person as an assertion. saying "I accept. and that BC heard (and believed) the words." In essence. B/c it does not matter whether AB¶s testimonial capacities were sound.g.. does not depend on the AB's testimonial capacity. Problems Clip: Shallock v." makes a marriage. All that matters is that AB said the words. AB told BC to be careful b/c Joey was looking for him & had a gun.that fact? UNLESS the answer to BOTH questions is YES.g.g.

(2) Was it made out of court? Yes. What if it was being offered to show that the employer was on notice? Then." What is it being offered for? To show fear. Heinze's employer was on notice. ACN to 801(c): "Prior statement by witness. and not as evidence of Mr. under 801(a)(1) this is a [written] assertion. P says. Request Limiting Instruction: Please keep in mind that this evidence can only be considered to show that P in sexual harassment suit is on the stand. Break it down: (1) Is this statement? Yes.2: The Gesture: A says she saw B make "money gesture" with his fingers. "He's number three. offered to prove the defendant robbed Alice." (1) Is it a statement? Yes. It has a legally operative effect (one of the obligations is to show notice). it's being offered for its truth and it's hearsay. . This is a statement (non-verbal assertion). Limiting instruction would probably want to refer to the actual contents of the communication.3: Quoting Herself Declarant is on the stand and says. it doesn't matter whether the statement is true. Problem 7. Problem 7.1: Rollover Affidavit: P wants to offer affidavit of chief witness (who might die) about the SUV being prone to rollovers. Heinze. Heinze's conduct toward his employees. "I told our supervisor that we (female employees) made an agreement not to be alone with Mr. If the witness admits on the stand that he made the statement and that it was true. An irrational fear cannot be used as evidence to show that she was sexually harassed. If it's being offered to show fear. Considerable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination concerning it. out of court. This is technically hearsay (but would come in under an exception). but nonetheless is NOT hearsay. Out of court. (2) This ³statement´ was made out of court. (3) Affidavit being offered to prove the truth of the matter asserted [that the SUV prone to rollovers] Yes it is hearsay b/c the statement/gesture is being offered for the truth value of the declarant's statement.Downloaded From OutlineDepot." 2. should be classed as hearsay. Defining Assertions: Key: Sometimes OOC statements are relevant to prove the truth of what the declarant believes. Evidence CAN BE offered for more than one purpose! It can be offered for an admissible and an inadmissible purpose. (3) Is it being offered to prove the matter asserted? Yes. Problem 7. while she was at the police station she identified the D. being offered to show that B needed cash (truth of the matter asserted). he adopts the statement and there is no hearsay problem. and said. under oath and in the presence of the trier of fact.

and then we need to do a hearsay analysis." Hearsay if offered to prove how A spent her morning. expressly or impliedly. 7. and IS hearsay.g. could this conduct be a lie? Problem 7. Underlying Rationale: We don't have to worry about non-assertions because people don't lie to themselves. Schlesinger did. A was planning for the long term. "I know that there is a stop sign ahead. Offered to show that the authors (now dead) thought the testator was of sound .9: Captain inspects ship before taking his family out on a trip. E. When ANALYZING: Ask.Downloaded From OutlineDepot. evidence is relevant if it's "one brick in the wall" Any brick can be hearsay. and to be regarded as a statement. BUT. A's OOC statement. If it's intended as an assertion. Therefore..´ Implied and Indirect Assertions: Implied: Based on context: Don't have to say. Wright v. A was planning her retirement home. **More Nonhearsay Uses of Out-of-Court Statements**: Nonassertive Words: Involuntary expressions are really the only clear example.10: Schlesinger. Declaration: "Don't run that stop sign" is an assertion that there is a stop sign. is clearly equivalent of words. letters between testator and people that knew him well. Compare Problems: ACN: "Nothing is an assertion unless intended to be one. then the credibility of the declarant matters.g. ACN: "Some nonverbal conduct. She was probably not mulling suicide. assertive in nature. so he could not have been lying. Key: Ship Captain did NOT intent to communicate anything by his inspection. there's an intent to communicate facts by implication." But. Amchitka Holiday. what if the P offered it to show that A did not intend. Chairman of the Atomic Energy Commission told press he was taking his family to the site of a nuclear blast.." Ship Inspection. Implied Question: "Do you see that there is a stop sign ahead"? Indirect: Relationship to relevancy: Remember. such as the act of pointing to identify a suspect in a lineup. there's NO hearsay analysis. 7. leads to 2. Schlesinger was seeking to dispel fears of danger. Tatam: Contested will. "Ouch!" Probably would NOT be hearsay if offered to prove that you were in pain. MUST look at the chain of inferences: This is because it does NOT manifest itself as an assertion. So. leads to 3. Captain had no audience. "I just spent all morning with the architect planning my retirement home.3 Revisited: What if she said ³I picked out (pointed) #3?´ This was assertive conduct. to communicate anything about suicide. Words Offered to Prove Something Other Than What They Assert E. Under 801(a) a statement is a type of assertion. The key difference is the OOC actor's sincerity. it IS being offered to prove the truth of what it asserts. This is important because if there's NO assertion.

com mind. evidence of her knowledge. or misperceived or misremembered the room. specific facts describing the room)." The V's knowledge of the appearance of the residence was used to prove circumstantially that she had been there.. and therefore not hearsay. and not direct. and that such state of mind on her part was acquired by reason of her having been in that room and house prior to making the statements. and said he'd never seen her before. Exceptions in Which The Availability of the Declarant is Immaterial: 803 (1) Present Sense Impressions (2) Excited Utterances (3) Then-Existing Mental. Court did exclude the letters as hearsay.. Emotional.g. State (p. It¶s only the inferences we draw from her statements that make them significant. or Physical Condition (4) Statements for Medical Diagnosis or Treatment (5) Recorded Recollections (6 & 7) Business Records (8 & 10) Public Records and Reports 4. The room matched the description.g. 3. Key: We don¶t care about her testimonial capacities! There is no way she could have been lying. Exceptions Applicable Only When the Declarant is Unavailable: 804 . Here¶s one way to think about it: Her testimony about the details of the room have no evidentiary significance on their own. 385): V said D sexually assaulted her. Exceptions to Hearsay: An Introduction 5 GENERAL AREAS: 1. Therefore. Prior Statements By Witnesses: 801(d)(1) (A) Prior Inconsistent Statements (B) Prior Consistent Statements (C) Statements of Identification 2.Downloaded From OutlineDepot. V's mother and police who interviewed V testified about what V told them about where the D had taken her (e. because her description was accurate. Her statements "constituted at least circumstantial evidence that she then had such knowledge. D denied the claim. a belief they felt no need to communicate. 2) Someone who describes the room accurately must have knowledge of how the room looked. Under 801(c) these would NOT be hearsay because they weren't offered for the truth of the matter asserted. NOT offered to prove the accuracy of the description of the D's room. Bridge v. Letters proved that the authors believed the testator was competent. Admissions by Party-Opponents: 801(d)(2) (A) The Party's Own Statement (B) Adoptive Statements (C) Statements by Spokespersons (D) Statements by Agents (E) Coconspirator's Statements 3. and 3) Someone who has knowledge of how the room looked must have been there. Here¶s the chain of inferences that makes the statement NOT hearsay: 1) The girl described the room accurately. Assertions Offered a Circumstantial Proof of Knowledge E. this is circumstantial.

(2) He could have responded. and he reacted and got drugs. The statement is offered against a party and is (A) the party's own statement. he DID respond." C. The Party's Own Words: 801(d)(2)(A) Language: A statement is NOT hearsay if "(2) Admission by party-opponent. Problem 7." So. Hearsay Within Hearsay Rule 805. in either an individual or a representative capacity . (3) Maybe he's just a neighbor. He didn't. and 4. (B) a statement of which the party has manifested an adoption or belief in its truth. Adoptive Admissions: 801(d)(2)(B) Language: "A statement is not hearsay if « Admission by party opponent . Then. but could be excluded for 403 and 404. "I don't have anymore drugs. The party failed to respond or deny (or responded. Statements of Agents: 801(d)(2)(C) & 801(d)(2)(D) . Necessary to adversary system. 3. . but you can get another from my buddy. the exception works (see U.Downloaded From OutlineDepot. so the silence could be adoptive.g. Barrett). . There's a natural expectation that you're going to deny such an accusation." E. Inability to cross a hearsay declarant is NOT applicable since the party is the (b)(1) Former Testimony (b)(2) Dying Declarations (b)(3) Statements Against Interest (b)(6) Forfeiture by Wrongdoing 5. but did not rebut) *against whom the statement is offered. Hearsay Within Hearsay "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. Statements of Party-Opponents : 801(d)(2)(.. That the circumstances naturally called for a response. Rationale: Against interest (?) The statement does NOT need to be against interest. 2. .S. The party* heard the statement. even where someone testifies that a defendant "told them" something. 3. It need only be relevant under 401. Admissibility depends on FOUR preconditions: 1. I'm just a poor guy. so he doesn't necessarily have to respond. Residual Exception: 807 4. he affirmatively adopted the statement but his actions after.." (1) He was two feet away. . 2.) No requirement of first hand knowledge (of the declarant) for statement to be admissible for its truth. The statement is offered against a party and is .. v. The party could have responded. it's adoption by conduct.13: Buddies: A told undercover B. . Not only did the circumstances call for a response. Double Indemnity: "Look Mr. This is not silence." He was accused of burning out his truck. 1. (4) Did respond. .

If the Huddleston standard is met. . .S. Made during the course of the conspiracy. D. Coconspirator's Statements: 801(d)(2)(E) & 104(a) Language: "A statement is not hearsay if . Not a jury question. .Downloaded From OutlineDepot. Can only use admissible evidence to make the determination. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. . . the jury decides whether the condition has been satisfied. Past Statements of Witnesses and Past : 613 AND 804(d)(1) 1. Of co-conspirator of a party. U. Introduction: Language: "A statement is not hearsay if . FRE 104(a): Judge makes the admissibility determination by a preponderance of the evidence standard. The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement AND: The statement is inconsistent and was made under oath in a . to show existence of conspiracy or membership in conspiracy (now part of the rule. but is alone insufficient. 104(a): The judge decides preliminary issues of admissibility. Question: Are Lonardo¶s statements to the FBI admissible against Bourjaily? To be admissible: Conspiracy involving declarant and defendant. The judge may consider inadmissible evidence in making its determination. or Subdivision (D): Statement made by agent Statement within scope of employment Statement made during agency relationship 4. . Standard is a preponderance of the evidence.: Facts: FBI informant (Greathouse) and a ³friend´ (Bourjaily) enter into an agreement with Lonardo to buy cocaine." Elements: OOC statement. Bourjaily v. The statement is offered against a party and is . FRE 104(a) vs. . see 1997 amendment).com Subdivision (C): Statement made by a person authorized by party concerning the subject. Proof of Conspiracy: Contested statement can be considered. and Made in furtherance of the conspiracy. FRE 104(b): 104(b): We know from Huddleston that the standard is: Can a jury reasonably find the conditional fact by a preponderance of the evidence? Applies only to issues of conditional relevance (including 404(b)). (2) Admission by party-opponent. . statement made during and in furtherance of conspiracy.

What if the only evidence in the whole case was his statement. you CAN offer extrinsic evidence to ³prove up´ the statement.Downloaded From OutlineDepot. Troisi: Facts: Robbery. Inconsistent Statements Offered to Impeach: 613 & 801(d)(1)(A) FRE 613: Language: "(a) Examining witness concerning prior statement. Side Note: 403 argument. In the closing argument. can the defense argue that she in fact paid for it? No! This was NOT a statement given in a prior trial or proceeding. (d)(1)(C) 2. 429). Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. the statement need not be shown nor its contents disclosed to the witness at that time." Limiting Instruction (p. The gentleman paid. which does not allow extrinsic evidence to prove specific instances of conduct that attack or support character for truthfulness. I was tired. so it shouldn't be admitted. whether written or not. In addition. Limiting Instruction: "The statement can only be used for impeachment. but it's NOT admissible under a hearsay rule as substantive evidence. but got it wrong. Victim got into the cab. Witnesses need to be allowed to explain or deny prior inconsistent statements (except party-opponents!). (b) Extrinsic evidence of prior inconsistent statement of witness. if witness denies the statement. v. This has the importance of showing the opposing counsel that they can't argue it during the closing statement (or I'll move for a mistrial). and can't be considered for its truth. or did someone else pay? Did the person that says that she was robbed pay the cabbie? Defense attorney is asking about a prior inconsistent statement. Contrast this with FRE 608(b). This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). Did she pay the cab. There's no way that a jury will be able to understand a limiting instruction. (d)(1)(B) The statement is one of identification. In examining a witness concerning a prior statement made by the witness. 608(b) Strategy: Also. or the interests of justice otherwise require. and had been working. Comm. but on request the same shall be shown or disclosed to opposing counsel. better to get explanation about inconsistencies while the witness is on the stand (because of the cabbie leaves and you can't . (d)(1)(A) The statement is consistent and offered to rebut a charge of recent fabrication. KEY: It's admissible under Rule 613. He's essentially saying. "He's said so many things that he's not sure what's true." More Questions: Cab driver admits that he did say that she paid for the cab." FRE 613 Summary: Allows you to impeach a witness with ANY prior inconsistent proceeding. and cabbie drove her home.

The declarant testifies at the trial and is subject to cross-examination concerning the statement and: The statement is inconsistent and was made under oath [in a proceeding]. A prior inconsistent statement does NOT come in as substantive evidence. the judge may not allow you to put the other witness on). U. What if Bass and Buzzy deny that there's a cooperation agreement? Can these be brought in? Clearly. v.17: Retraction: A says M fired the fatal shot. Can the defense introduce extrinsic evidence of the cooperation agreements? Yes. Inconsistent Statements Offered SUBSTANTIVELY: 801(d)(1)(A) Language" "A statement is not hearsay if« the declarant testifies and is subject to cross-examination and: (a) statement is an inconsistent statement given under oath in a proceeding. If some information is inadmissible under hearsay." U. Barrett: Can defense lawyer cross-examine Bass and Buzzy about any cooperation agreements they received to testify? You can always ask a witness about bias. you can't try and get it in through a back door. there are three non-character ways: prior inconsistent statements. 3. This is going to violate 403. Problem 7. It has only been introduced to impeach.S. It's just showing that the witness isn't credible.S. But. Margaret files a motion for DV (no reasonable view of evidence). This is NOT character based impeachment. Then at trial denies ever having made the statement. v. and contradiction.Downloaded From OutlineDepot. Proc. bias. . it's not going to be admissible. and the prosecutor is going to introduce extrinsic evidence. calls the detective who says she fired the fatal shot. Therefore. so the judge would have to grant the motion for acquittal. (d)(1)(A). If they're trying to get evidence in to impeach that wouldn't be admissible. the statement's not coming in for its truth. FRE 801(d)(1)(A): Language: "A statement is NOT hearsay if .com subpoena him again. Question is: Should the motion be allowed? Yes. . If a prosecutor is seeking to "play a game" (where the witness isn't going to "remember" that he made the statement). This is just a general rule. There's NO affirmative evidence. and it's not coming in as substantive evidence. Ince: Prosecutor attempts to get information about prior confession in front of the jury via impeachment evidence. .

ACNs even say that a grand jury is a prior proceeding. "You're right. Hypo: What if F. Problem 7. and is confronted about the inconsistent testimony? And. Is subject to cross-examination on the statement. is on the witness stand. Reliability less of an issue because: Prior statement is made under oath. Here. THREE Requirements: 1. she says. or other proceeding.'s grand jury testimony be admitted as substantive evidence of Robinson's guilt? Prior proceeding? Yes. No dispute that prior statement was made (most likely there will be a transcript). Is this good policy? She changed it. subject to the penalty of perjury at a trial. hearing. At the grand jury. the decision is for the court under FRE 104(a). she was willing to testify. or in a deposition. at a proceeding. Was it under oath? Yes. they may not want to remember. I said it. 215). and declarant is now subject to cross-examination in the current proceeding. so it was under oath and subject to perjury. Courts treat lack of memory as (b) statement is consistent and offered to rebut a claim of recent fabrication. her husband is present at the actual trial. Prior statement is made closer in time to the conduct in question.) This is because when people say that they don't remember.T.Downloaded From OutlineDepot.T." Now. There only needs to be "a tension" between the trial and prior statement. AND 3.19: Domestic Violence Q: Can F. But. (there are few reported cases in this area. witness intimidation). Look at ACN (p. She's adopting her statement. it's an in-court statement. there's probably some other reason. Has there been a "shift" in the testimony that matters? Generally. The statement is inconsistent with the declarant's testimony. It was a grand jury hearing. Past Consistent Statements: 801(d)(1)(B) Language: "A statement is not hearsay if« the declarant testifies at trial and is subject to cross and the statement is: (b) consistent with the declarant¶s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or . 4. Is it inconsistent? Yes.g. The declarant testifies at trial/hearing. Ultimately. Are there some factors here? How long ago was the testimony? Physical reasons for her lack of memory? She had a blow to the head. and was given under oath. Defining "INCONSISTENT": Does it need to be diametrically opposed? NO. (c) statement is one of identification. 2. Rationales for 801(d)(1)(A): Need to deal with "turncoat" witnesses (e.

but what's it being offered for? It's being offered to establish that the witness had a bias! What if the prosecution calls the jail mate's mother on rebuttal who's prepared to testify: "My son called me from prison last night and said. It's not being introduced substantively. this doesn't rebut anything.o. Does an attack on a character witness under 608/609 allow you to use 801(d)(1)(B) to introduce the statements as substantive evidence? If the prior consistent statements are coming in purely for impeachment. . If he called his mother after talking to the prosecution. Note: If you distinguish the reasons for why the evidence is being offered. then it probably can come in. are admissible under 801(d)(1)(B). Tome v. This does NOT have to be under oath in a prior proceeding. If it wasn't narrow. U." Holding: Recent fabrication means recent fabrication. girl unable to testify fully about alleged sexual abuse. The question of whether the statement is consistent is narrowly defined." Timing is important!: If he called his mother before talking to the prosecution. prosecution offers 7 out of court ³prior consistent´ statements in which victim described the abuse. How can the defense ask about the prosecutor's statements to the jail mate? Hearsay analysis: It's out of court. in other words: The prior consistent statement MUST HAVE been made BEFORE the motive to fabricate arose. is admissible under 801(d)(2)(A). but being used to rebut the allegation that the witness is not credible (to rehabilitate). Statements of Identification: 801(d)(1)(C) The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement . or after the alleged improper influence or motive arose. D calls his jail mate.S.(C) one of identification of a person made after . 5. . although hearsay. F: 6 improper influence or motive. this rebuts the bias.Downloaded From OutlineDepot.(1) The statement is offered against a party and is . Jail mate's statement. . impeachment). it's a statement. Why? This is being offered as substantive evidence under 801(d)(1)(B). you could argue that anything could come in as non-hearsay as consistent. . then the admissibility changes (substantive evidence v." Video Clip: Anatomy of a Murder: D is on trial for temporary insanity. Key EI: "Whether OOC consistent statements made after the alleged fabrication. There's no question that the evidence can come in to rehabilitate the witness. guess what the D told me? He's fooling everyone!" This is a consistent statement that's being "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. .

she was capable of being cross examined. or absence is due to the . Hearsay Exceptions Under 804(b): "Declarant Unavailable" Intro: Unlike 801(d)(1) "exceptions. Unavailability Defined: "Unavailability as a witness" includes situations in which the declarant: 804(a)(. or (a)(4) Death. would the ID have any meaning? No. if Ms. Owens: Holding: A witness who testifies AND is available for cross (the precondition for 801(d)(1) statements).just remember. refusal. Or in the case of a hearsay exception under subdivision (b)(2). The rule does NOT say that the declarant is the only person who can testify about the identification.. . or mental illness. Did Ms.. the declarant's attendance or testimony by process or other reasonable means. Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process or other reasonable means." where a declarant must testify and be subject to cross." The Player: Whoopi What if we now have Whoopie Goldberg on the stand? Is it hearsay? It's out of court. when the declarant's testimony is unavailable). Whoopi (police officer) could not get on the witness stand! U.) (a)(1) Exempt by privilege.. inability. physical.[A]s a witness if: Exemption. Andrews already testify at trial? Yes. offered for the truth of the matter asserted (it's being offered to show that she identified someone). v.´ Summary of 801(d)(1): IF the preconditions (they testify and are available for cross-examin. After her direct.) are met. BUT!!.Downloaded From OutlineDepot. Confrontation Clause: We will deal in much detail with after we are done with hearsay . or (a)(2) Refuses to testify. Owens is still good law: The CC guarantees only ³an opportunity for effective cross-examination. we as a society deem the declarant's prior statement particularly trustworthy and/or necessary. If the police officer couldn't get on the witness stand. E. not cross-examination that is effective. (3). 804 ONLY applies when the declarant is unavailable (i. .S. means only that.e. Andrews did NOT testify. the prior statements ARE admissible as substantive proof of the matter asserted. or (a)(5) Unavoidable Absence. There is NO requirement that the witness remember the prior identification. or (a)(3) Lack of memory. NOT UNAVAILABLE: . These exceptions are founded on the rationale: Even though the testimony is unavailable. claim of lack of memory. or (4).com perceiving the person.

23: Roadway Incident: "[H]ad an opportunity and similar motive" Is the declarant unavailable? Yes. In civil cases." Problem 7. Would the judge let it in? Probably not.´ Preliminary Points: Former testimony does NOT need to be in the same proceeding. The insurance company is.22 Revisited: What if the D wanted to introduce the grand jury testimony by Robinson. or redirect examination (emphasis added). substantial damages). cross. What would be Crewing's motive in the criminal proceeding? What other facts do we need to know about the civil case? Amount of damages? (fender bender v. Problem 7. FRE 804(b)(2) Forfeiture by Wrongdoing. and not let it in.) . The judge would probably say that the motive was sufficiently dissimilar. the opportunity MUST be afforded to the party against whom the evidence is offered. JUST the opportunity. against the prosecution? (That she and Robinson were in a custody dispute. in a civil action or proceeding. or. FRE 804(b)(3) Dying Declaration. Past Testimony: 804(a) & 804(b)(1) Language: Rule 804(b)(1): Former Testimony: ³Testimony given as a witness at another hearing of the same or a different proceeding. There MUST be an opportunity for proper examination (usually crossexamination). Crewing is NOT as concerned about liability as he would be in a prosecution for drunk driving.Downloaded From OutlineDepot. the opportunity must have been afforded to a "predecessor in interest. or in a deposition taken in compliance with law in the course of the same or another proceeding. FRE 804(b)(1) Statement against interest. her out of court statement offered for truth MAY still be admissible IF: Statement is former testimony and certain conditions met. Is it being offered against a party? Yes (against Crewing). Arguably. OVERVIEW: If declarant unavailable. a predecessor in interest. FRE 804(b)(6) 1. if the party against whom the testimony is now procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. Did he have opportunity and similar motive to develop former testimony in prior proceeding? NOTE: This doesn't require ACTUAL cross. What's the possible penalty here? (this helps in the determination). had an opportunity and similar motive to develop the testimony by direct. What was Crewing's motive regarding Sarah's testimony in the civil proceeding? What interest did he have? Is Crewing going to have to pay damages? No. In criminal cases.

L is unavailable. !!!!!EXAM ANALYSIS: !!!!!! "Community of Interest" VS.Downloaded From OutlineDepot. There might be more of an argument there that the motive was similar. you're not going to "beat them up" as much. The witness doesn't want to give them any favorable testimony. Did the prosecution have the same motive as he would in the trial? In a grand jury. . Against whom is it being offered? Offered against the prosecution. "Predecessor in Interest" Under "sufficient community of interest" this would probably be fine.´ (quoting McCormick). Can make a very good argument that the motives were too dissimilar. You also don't want to expose your key witness as uncredible.´ Key Phrase: ³[I]f it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have. Prosecution has the opportunity to direct examine in a grand jury proceeding. A sued SC for not protecting him. The standards are completely different at trial (beyond a reasonable doubt at trial). But. where it's the victim of a crime (as above). Hostile witness comes into the grand jury. the standard is probable cause for indictment. Now we're dealing with motive. so SC wants to introduce L's testimony from the CG hearing. was afforded an adequate opportunity for such examination.g. KEI: Was the Coast Guard a "predecessor in interest" to A with the same or similar motive to develop L's testimony? Holding: They had a ³community of interest´ sufficient to allow the former testimony under 804(b)(1). When might this argument work? E. Lloyd v. the testimony may be received against the present party. Same ³nucleus of operative facts. American Export Lines: F: A & L fought on a ship.´ which connotes ³mutual or successive relationships to the same rights of Was there testimony given in a formal proceeding? Yes. Was the prosecution in the grand jury proceeding? Yes. The CG had brought charges against L to terminate his merchant's license. "Predecessor in Interest": CIVIL CASES Former testimony is admissible if a "predecessor in interest" to the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony. Both wanted to establish (Lloyd¶s) culpability and a remedy. Concurring opinion in Lloyd: Congress rejected the ³community of interest´ approach in favor of ³predecessor in interest.

Corroboration Factors: (from United States v. Rule 804(b)(3) has been amended to provide that the corroborating requirement applies to all declarations against penal interest offered in criminal cases. Last part: Statement against ³penal´ interests So statements that might only cause embarrassment or ridicule are NOT covered. even under different circumstances. 2. Old ACN: ³[O]ne senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents. Statements Against Interest: 804(b)(3): Now corroboration is needed for both D and P offers. the declarant¶s motive in making the statement and whether there was a reason for the declarant to lie. 3." Preliminary Points: Under 804(b)(3)(a). 2. 804(b)(3)(A) & 804(b)(3)(B) (3) Statement against interest. The test is objective. AND (B) is supported by corroborating circumstances that clearly indicate its trustworthiness. if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.) 2010 ACN: "Subdivision (b)(3). even though the text of the Rule did not so provide" "All other changes to the structure and wording of the Rule are intended to be stylistic only. invalidate a legal claim. quite another when said by an actor in a play. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution. . the statement must be against the declarant¶s proprietary OR financial interests. Would a reasonable person in the declarant¶s position have made the statement? Why? The declarant is not there. whether the declarant repeated the statement and did so consistently.´ (RB 287. Language: 12/01/10 NEW RULE!: Now in subsections. the timing and circumstances under which the statement was made. enhanced in either instance by the required unavailability of the declarant. so how are you going to ask him about how he felt in that situation? Context is everything: "I committed the crime" means one thing when said to the police. when made. it would probably be insufficient. or expose him or her to civil or criminal liability. There is no intent to change any other result in any ruling on evidence admissibility. Hall): Where a court requires a stricter "privity"-esque requirement.Downloaded From OutlineDepot. it was so contrary to the declarant¶s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant¶s claim against someone else or to expose the declarant to civil or criminal liability. A statement that: (A) a reasonable person in the declarant¶s position would have made only if the person believed it to be true because.

S.but do not directly incriminate 4. only the self-inculpatory portion of statements are admissible under 804(b)(3). KEI: Whether Harris¶s whole statement is admissible under FRE 804(b)(3). The statement only incriminates the declarant. claiming Harris¶s statements were hearsay and improperly admitted against him. If it does. then we wouldn¶t have any problems. Example (p. is the crime an act that required joint action?). They don¶t satisfy the rationale of the rule which is that. Supreme Court rejects the ³narrative view´ that Harris¶ whole statement (including the part that incriminates Williamson) is a statement against interest.´ coupled with evidence that the declarant and the defendant were driving together Friday morning and that two people robbed the bank. Williamson v. and 6.Downloaded From OutlineDepot. Harris refuses to testify. Instead. and prosecutor calls the agent to relate Harris¶s statements under FRE 804(b)(3).: Entire Statement or Just Parts? Harris arrested with 19 kilos and gives several stories about source of the drugs and about defendant Williamson¶s role. the nature and strength of independent evidence relevant to the conduct in question. the party or parties to whom the statement was made. including: Is the statement even handed OR attempting to shift blame? How connected are the declarant and the defendant? (for example. so it would be admissible under FRE 804(b)(3). ***BUT!!! Some self-inculpatory statements that implicate -. Williamson appeals. Here. If Harris testified.the defendant ARE admissible. right? He could describe the conspiracy and Williams¶ admissions. Does the statement make sense if you eliminate references to the defendant? Remember: Self-inculpatory statements will be admissible only if . the relationship between the declarant and the opponent of the evidence. then the court will need to consider various factors to determine whether it is admissible. U. 473): ³I was robbing the bank Friday morning. RATIONALE: Because self-serving statements that tend to shift blame to another person are inherently untrustworthy. the prosecution will want to admit it as evidence of the defendant¶s guilt. Yet. we let statements in that are so against their interest because people don't usually lie in these situations. 5. This is the ³collateral´ statements rule: Non-self-inculpatory parts are not admissible. More on the Analysis: The court needs to look to context to see if the portion that inculpates the declarant ALSO inculpates the defendant.

the existence of a privilege. Also. Why in homicide cases? The one witness is dead. In prosecution for homicide or in a civil action or proceeding. ALWAYS PROCEED TO CC ANALYSIS. Shepard poisoned me.´ Gets worse on May 27. a statement made by a declarant while believing (subjective?) that the declarant¶s death was imminent. Elements/Analysis: 1.´ (RB 234) Exception: Party-Opponent admissions: If you make a statement.Downloaded From OutlineDepot. and neither this rule [FRE 803] nor Rule 804 dispenses with the requirement of first-hand knowledge. Shepard has poisoned me´ a dying declaration? No. there is sufficient corroboration. 1929. On May 22 she is much better and says ³Dr. Who decides and under what standard? 104(a) "Preliminary questions concerning the qualification of a person to be a witness. In this case it's merely speculative. ACN: ³In a hearsay situation. Statement under belief of impending death. Side Note: FRE 806 A hearsay declarant's credibility can be attacked in most of the same ways . Remember Bourjaily: The question here is "whether or not" it's a dying declarations. What does Justice Cardozo say is the test? ³A settled hopeless expectation of death´ and the statement is made ³in the hush of its impeding presence. or the admissibility of evidence shall be determined by the court. 2. a witness. Thus. 5. subject to the provisions of subdivision (b). Made while believing death is imminent. Concerning the causes or circumstances. This is a question of admissibility. OOC statement by the declarant. Shepard v. it's going to be held against you. of course. concerning the cause of circumstances of what he believed to be impending death. there's a necessity. In making its determination it is not bound by the rules of evidence except those with respect to privileges. 3. Shepard did NOT have personal knowledge: Rule 602: Witnesses must have personal knowledge. United States: Facts: Ms. Declarant is unavailable. Any civil case or in a criminal case for homicide.´ Rationale? There's heightened reliability. Dying Declarations: 804(b)(2) & 806 Language: And 804(b)(2) says«. it's going to be a question for the court. even if there's no knowledge. dies on June 15. So is ³Dr. Shepard gravely ill on May 20. 3. Ms. the declarant is.

F. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition. even though the declarant is available as a witness: "Present sense impression.Excited Utterances (MORE BROAD): Which says« The following are not excluded by the hearsay rule. 4. Hearsay Exceptions Under 803: "Availability of Declarant Immaterial" Intro: DOESN'T MATTER whether the D is available to testify. contradiction by inconsistent statements. and there's a extrinsic evidence bar. Gray: 3 elements: (1) opponent engaged in wrongdoing. This is "extra credit" territory. and ARGUE BOTH! 803(1) . In other words. Specific acts suggesting untruthfulness will probably not be allowed since the declarants aren't at trial. the hearsay is better than live testimony! 1." Excited Utterances compared with Present Sense Impressions: . Big on immediacy here. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Rule 803: Declarant¶s availability immaterial because these types of statements are presumptively reliable. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to.Downloaded From OutlineDepot. and evidence of untruthful character. The thinking is that this exception is necessary for certain statements that have an indicia of reliability. and (3) that did render declarant unavailable. Can't attack a declarant's testimony under 608(b): Can prove bias. Forfeiture By Wrongdoing: 804(b)(6) Language of 804(b)(6): ³Forfeiture by wrongdoing. 803(2) . 803 Exceptions compared with 804 Exceptions: Rule 804 ONLY applies when declarant¶s testimony unavailable.Present Sense Impressions (VERY NARROW): Which says«The following are not excluded by the hearsay rule. contradiction by other evidence. and did.´ US v. OR immediately thereafter. even though the declarant is available as a witness: "Excited Utterance. (2) intended to render the declarant unavailable as a witness." The declarant is describing it AS IT'S HAPPENING. Present Sense Impressions 803(1) AND Excited Utterances 803(2): Tips: 803(1) and 803(2) closely overlap! EXAM TIP: Look for them together. procure the unavailability of the declarant as a that are available as any other witness. EI . She denies at trial. or physical condition. The "state of mind" exception) Language: The following are not excluded by the hearsay rule. A statement of the declarant's then existing state of mind. design. was a victim of physical abuse. identification. never returns.33 Kidnapping: F: A leaves his friends at restaurant and walks into parking lot..Downloaded From OutlineDepot. 2 friends testify that A earlier said that he was going to meet D to get pot. Was still suffering under the excitement or stress of it.g. revocation. and bodily health). Elements (Analytically): Was there an external stimulus? Was there an excited reaction? Did the statement relate to the stimulus? 2.´ Should A¶s statements be admissible to prove he did not disappear voluntarily? Should statements be admissible to prove D was the one who kidnapped A? "State of Mind" Analysis: Step 1. E. Don¶t get fooled into believing it¶s not relevant simply because the declarant¶s state of mind isn¶t the ultimate fact. she was stressed. emotional. Applies to statements that ³relate to´ the startling event or condition (broader than 803(1)) Problem 7.803(2): Limited to the length of time of the excitement (measured by the subjective state of the declarant.´ and a person who says he intends to return is more likely to do so than someone who doesn¶t. if you have a "moment" to reflect. Statements of Then-Existing Condition: 803(3) (a.. pain. 803(2)?: There's an exciting event. even though the declarant is available as a witness: (3) Then existing mental. it is offered to prove that the declarant acted consistent with her state of mind. PSI . 803(1)?: Probably not going to fly. Adell said he¶d be ³right back. then we're past the time for subdivision 1.803(1): Limited to statements made during or immediately after (³moments later´) the event or condition. motive.k. Applies only to statements ³describing or explaining´ the event or condition. Problem 7. emotion. plan. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution.31: Domestic Violence V: We're the prosecution. mental feeling. or terms of declarant's will.. Remember. an indirect assertion is still a statement if it¶s part of the . or physical condition (such as intent. and that when he left he said ³I¶ll be right back.a. Is it relevant? Usually.

it has independent relevance as proof of the matter asserted. E. for statements of the declarant¶s then-existing state of mind..e. But that¶s not enough to justify exclusion.g. He might have misperceived what was said when they agreed to meet. ³The car was red´ is really ³I recall that the car was red´ .g.g. the declarant¶s past state of mind). Adell¶s statement that he planned to meet the defendant in the parking lot: He might have misremembered the time they were to meet. E. Rationale for 803(3): Nobody knows a declarant¶s state of mind better than the declarant. Adell¶s statement that he was going to meet with the defendant to get pot. Step 2. since all statements are of memory or belief. i. there is less risk of unreliability because there are no dangers of faulty memory.Downloaded From OutlineDepot.. E. If 803(3) applied to statements of memory or belief.g.g. Is it a statement of the declarant¶s memory or belief to prove the fact remembered or believed? If yes.´ That¶s still a statement about his intent to return. At the time Adell said ³I¶ll be right back. The statement itself is better evidence of the state of mind than later testimony about it (think how hard is it to remember what you were thinking in the past).g. Adell¶s statement is direct evidence that he intended to return. In other words. He might not narrate well. Now all 4 of the hearsay dangers are present. which of necessity was a statement about the past . or that he misperceived whether he would be right back. not admissible (unless relates to a will). Step 3: Does it meet FRE 803(3)? Is it a statement of the declarant¶s then existing state of mind? If yes. Is it hearsay? Is the out of court statement being offered as direct evidence of the declarant¶s state of mind. E. E. Also don¶t get fooled because the statement needs to be interpreted. there is always the danger that the declarant is lying. then it would destroy the hearsay rule. He might be lying. just made in a more fact-specific way. assume Adell said ³Let¶s go to a movie after we leave here.. Of course. Contrast this with statements about one¶s memory of belief (ie.´ there is no danger that he forgot that he¶d be right back.that he and the defendant had agreed to meet at 9:30pm. NOR dangers of misperception. Adell statement ³I¶ll be right back´ is a present statement about his future conduct. then it is admissible. It¶s still an implied assertion about state of chain of inferences that leads to the ultimate fact. In other words. meaning no inferences are required? e.

Hillmon (1892) (it¶s in your casebook) TODAY. Backward looking statements (a/k/a memory or belief) NOT admissible to prove the fact remembered. And therefore. If last week I said. ³last week I had planned to shop. there is some corroborating evidence of the future conduct. So Adell¶s statement that he is going to meet Angelo. NOT the future conduct of another person. For example: A court would permit Al¶s statement to be admitted to prove that the D was the person who would be in the parking lot at FRE 803(3) AND 3rd Parties: Before the FRE (ie. although it¶s hearsay if offered to prove that he did not disappear voluntarily. Problem 7. then it is hearsay and not admissible under FRE 803(3) (at least if a court follows the House Report interpretation of 803(3)). If so. E. E.33 Kidnapping SUMMARY: ³I¶ll be right back´ is direct evidence of A¶s then-existing state of mind. ³I plan to go to the store. if based on a prior conversation with Angelo.´ (RB 237) The House Report is the better view because conduct of a third party will almost inevitably depend upon the declarant¶s memory or belief.33) . it is NOT HEARSAY because the statement is not being offered for the truth of the matter asserted! SUMMARY: Forward looking statement (a/k/a then existing state of mind) is admissible to prove future conduct. "Circumstantial" Evidence of State of Mind: If the statement is direct evidence of state of mind. Comes from a very famous case: Mutual Life v.Downloaded From OutlineDepot.g. its relevance to prove future conduct is often minimal. Rule 803(3) is intended to limit the doctrine of Hillmon so as to ³render statements of intent by a declarant admissible only to prove HIS future conduct.g. But. according to the House Report.. in the rare case the statement is offered as circumstantial evidence of the declarant¶s state of mind. 1975). a statement by a declarant about his state of mind could also be used to prove what another person did. then we are in the world of FRE 803(3).´ the statement is not admissible to prove that I did.´ The statement is admissible to prove whether I went to the store. ³I¶m going to meet [the D] at 9:30 pm to get pot´ is direct evidence of Adell¶s memory or belief.g. If offered to prove the fact asserted (that the defendant is the one who kidnapped Adell). at least not by itself. should not be admissible (Problem 7. E. "Direct" vs. Otherwise. In most cases. it fits FRE 803(3) and is therefore admissible. Some courts nevertheless follow the Hillmon rationale. Declarant¶s statement about another person that disguises backward looking inferences to prove the behavior of the other person is not admissible. If I say today.

Statements to hospital attendants. The doctor¶s testimony that Browning said he fell and hit his head? Yes. Admissible? Statements to lawyer? Under this rule.´ the court will usually allow the statement. NO." US v. then couldn't talk at trial. Why? Because the statement can be admitted to prove the declarant¶s state of mind. pain. Advisory Committee Notes: "Statements as to fault would not ordinarily qualify under this latter language. But if there is sufficient corroboration. ambulance drivers. his doctor. Statements for Medical Diagnosis: 803(4) Language: Statements for purposes of medical diagnosis or treatment. Under excited utterance? No. or sensations. Needed to know why he hit his head in order to provide diagnosis and treatment. Told lawyer. But only as to what. Elder Abuse F: V claims he was pushed down by D. Not a medical diagnosis. Under the exception the statement need not have been made to a physician. Statements made for purposes of medical diagnosis or treatment and describing medical history. Need to know the reason for the fall. Opponents: Always think FRE 403! 3. Under present sense? No. Problem 7. Other Thoughts: Child abuse cases: Courts are very liberal. he called a day later. No evidence that he was still Yet. or even members of the family might be included. Thus a patient's statement that he was struck by an automobile would qualify[. Iron Shell (1980): When doctor testifies that knowing ³what happened´ (i. but there is a limit.Downloaded From OutlineDepot. NOT as to who. Most commentators (and I) think this is bad law. then it¶s probably ok. Some courts will exclude . the cause of injury) is important ³in the examination and treatment. or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.] but NOT his statement that the car was driven through a red light. or past or present symptoms.e. some courts still allow disguised backward looking inferences. The corroborating evidence proves what the third party did. It was Maples who pushed him? Can make the argument that is relevant: Since she is his care giver.34. there may be other signs of neglect OR abuse. The doctor¶s testimony that ? Someone pushed him? Yes..

38: License Plate Facts: R¶s husband dies by hit and run driver. Memo must accurately reflect knowledge (which means that the witness must now be able to vouch for its accuracy in some way). Memo can be read. Lawsuit against B.Downloaded From OutlineDepot. Sullivan writes it on an envelope. attempts to refresh recollection. but doesn¶t help. the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. ADDITIONALLY: The rule does not require that the speaker be the patient. however. so offers envelope into evidence.and even to Good Samaritans. some allow. but NOT admitted unless offered by adverse party. NOW can¶t remember* (*which means that an effort should first be made to refresh the witness¶s recollection). If admitted. Refreshing Memory/Recollection 612 AND Recorded Recollection 803(5): Recorded Recollection . 239): When two people are involved in creation of the record: one sees and other writes. Some courts will allow naming the abuser on the ground that it¶s necessary to treat the psychological damage caused by the abuse. Problem 7. There have been cases where the doctrine has been applied to statements by family members -. the writing can be admitted as recorded recollection if both testify as follows: . ³Who´ committed the abuse. Q #2: Can the envelope be admitted? The Two-Person Documents Rule (see ACN p. Q #1: Anything improper about attempting to refresh recollection? No. Can¶t remember plate. courts require that the patient be unable to speak for him/herself BEFORE this exception is applied to such speakers. 4." Breaking it Down: Record or memo Made or adopted when witness had knowledge AND memory was fresh. Doctor statements to patients: Courts are split. Lawyer shows her the envelope. Generally. 2 witnesses: (1) Menandier. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately. anything can be used to refresh. At Trial: Sullivan testifies first. shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. some do not. retains envelope.803(5): "(5) Recorded evidence if its clear the child does NOT understand the doctor¶s role. (2) Sullivan Menandier: Bystander calls out license plate number to Sullivan. tells police officer.

or diagnoses. BUT. report. of acts. Judicial discretion in civil cases Criminal cases -. occupation. But. Courts have read into the rule a requirement that the ³person with knowledge´ be a member of the business (see ACN p. Layer 2: Sullivan¶s writing. it fits the rule. can't be read aloud because they are now testifying as to their recollection. 5. if Menendier testified. The writer must testify that they recorded it properly. or data compilation. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. If NOT.strike testimony OR maybe mistrial. If kept in the ordinary course of business activity. made at or near the time by.Downloaded From OutlineDepot. if kept in the course of a regularly conducted business activity. The term "business" as used in this paragraph includes business. By or from someone with knowledge. or from information transmitted by. all as shown by the testimony of the custodian or other qualified witness. in any form. report. record or data compilation. profession. Can be described as both present sense impression AND excited utterance. Regular practice to make such record. but NOT the envelope itself. a person with knowledge. The observer must testify that s/he once had knowledge and accurately described the event while fresh in mind." Break Down of Rule: Record. whether or not conducted for profit. Refreshing Memory/Recollection . association. institution. 1. 242). but no longer remembers. or a statute permitting certification. then: Double hearsay problem Layer 1: Menendier to Sullivan. opinions. and if it was the regular practice of that business activity to make the memorandum. Introduce those portions that relate to the witnesses testimony. . Made in a timely manner. IF both so testify. 2. If the offering party fails to produce the writing. record. IF the witness says they now remember after seeing the writing. Contents can come in. it meets all of the requirements and there's NO double hearsay problem. or by certification that complies with Rule 902(11). It can be read aloud.612: Adverse party has a right to: See it and cross-examine about it. conditions. A memorandum. Rule 902(12). and calling of every kind. Business Records: 803(6) & 803(7) 803(6): Language: "(6) Records of Regularly Conducted Activity. Demonstrated by custodian of records.

Evidence that a matter is not included in the memoranda reports." 6." Notes: Public records setting forth activities of public agency. to prove the nonoccurrence OR nonexistence of the matter. Public Records & Reports: 803(8) & 803(10) 803(8): Language: "(8) Public records and reports. court refuses to include the interview report despite defendant¶s claim that it fell within the business records exception. Public records setting forth matters observed pursuant to duty to observe and report. records. report. of public offices or agencies. 803(7): Language: "(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). which is to admit records that are ³routine reflections of the day to day operations of a business. Hoffman: Exception to 803(6) (1940): Facts: AFTER train accident where newlyweds are killed and disfigured. however.Downloaded From OutlineDepot. factual findings resulting from an investigation made pursuant to authority granted by law. At trial. bills of lading Although this case was decided prior to the FRE. Records. the rationale STILL applies. or data compilations. .com Rationale: Want to limit the amount in the record. Palmer v. record. if the matter was of a kind of which a memorandum. UNLESS the sources of information or other circumstances indicate lack of trustworthiness. in criminal cases matters observed by police officers and other law enforcement personnel. in any form. unless the sources of information or other circumstances indicate lack of trustworthiness. or (C) in civil actions and proceedings and against the Government in criminal cases. Truth can be inferred from regular practice. kept in accordance with the provisions of paragraph (6). reports. railroad company conducts an investigation by interviewing the train¶s engineer. excluding.´ Examples of business records: Payrolls.´ To admit the report would DESTROY the purpose of the rule. setting forth (A) the activities of the office or agency. who explains that neither he nor the railroad company was negligent. excluding matters observed by law enforcement in criminal cases. statements. in any form. thus NOT in the ³regular course of business. Holding Court concludes that the interview report is NOT a business record because the report was prepared in anticipation of trial. or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. or data compilation was regularly made and preserved. accounts payables. or data compilations.

Washington!). Family records. if the court determines that (A) the statement is offered as evidence of a material fact. However. Statements in ancient documents. U. Other 803 Exceptions: Records of vital statistics. the proponent's intention to offer the statement and the particulars of Factual findings resulting from investigation made by public authority !!!! IMPORTANT! !!! !!!! POLICE REPORTS !!!!! 803(8) expressly EXCLUDES. from the public records hearsay exception.Downloaded From OutlineDepot." Points/Analysis of 807: 1. Learned treatises. Question: Does this mean police reports are inadmissible. and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Proper notice? [5. Residual Exception: 807 Language: "A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness. including the name and address of the declarant.S. Is there sufficient corroboration? E. Reputation as to character. G. Laster (6th Cir. (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. Others limit it to adversarial reports.. Do the ³interests of justice´ so require? 5. 2001): Where the court found applicability of the exception. ³Near miss´ to FRE 803(6). police reports offered in CRIMINAL cases. 3. a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. Is the statement regarding a material fact? 2.B. v.] Hearsay and the Confrontation Clause: . or might they come in under 803(6)? Some courts apply 803(8)¶s ban to ALL law enforcement reports. Is the statement ³more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts´? 4. is NOT excluded by the hearsay rule. Are there ³equivalent circumstantial guarantees of trustworthiness´? Courts heavily rely on two factors: Is the declarant available to testify? (especially important since Crawford v. 7. Records of religious organizations.g.

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A. Confrontation Clause and Hearsay

Introduction: (6th Amendment, U.S. Constitution, ratified 1791) Language: ³[I]n all criminal prosecutions, the accused shall enjoy the right . . .to be confronted with witnesses against him.´ NOT applicable in civil cases. The CC is separate from the hearsay rule. Answer: The Constitutional right to confrontation and statutory rules under the FRE are independent of each other: Each can be a basis to exclude hearsay. BEFORE Crawford: That there might be a conflict between 6th Amendment right and hearsay rules was pretty much ignored. And it was easy to ignore for three reasons: 1. 6th Amendment didn¶t apply to states until 1965. 2. Declarants usually testified. And if they didn¶t, the defendant usually had an opportunity to cross-examine at the time the pre-trial hearsay statement was made. 3. Ohio v. Roberts (1980) California v. Green, 399 U.S. 400 (1970): Where declarant IS present, and prior OPP. to cross-examine. When the declarant is present, testifies at trial, AND responds to questions about the out-of-court statement (³OOC´), there is NO Confrontation Clause violation. If, despite best efforts, the prosecutor cannot produce the declarant, NO Confrontation Clause problem when the OOC was made under oath & subject to cross-examination (this looks similar to 804(b)(1); need opp. to C-X). KEY POINT: Also, NO CC problem IF the OOC is NOT being offered for the truth of the matter asserted! WHY? The entire point of seeking to confront/cross-examine is to figure out if they're telling the truth or misperceived the truth. If the statement is NOT being offered for its truth, we don't care whether the declarant was telling the truth, so there's NO CC issue. ONLY where the OOC is being offered for its truth (where it's hearsay) do we run the risk of a CC violation. CC Question epitomized: What about cases where declarant didn¶t testify at trial AND there was no prior opportunity to confront? ENTER Ohio v. Roberts (1980): The Right to Confrontation NOT violated IF: Witness is truly unavailable; Statement is independently reliable OR firmly rooted in a hearsay exception. For the most part, IF hearsay exception applied, the Confrontation Clause was satisfied. 1. Crawford v. Washington Roberts' reliability standard is gone: "The [Confrontation] Clause¶s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in

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a particular manner: by testing in the crucible of cross-examination.´ (p. 583) With Crawford, the Court threw ³a boulder into the placid waters of Confrontation Clause jurisprudence.´ Facts: Justice Scalia's Opinion: ³Petitioner argues that [the Ohio v. Roberts] test strays from the original meaning of the Confrontation Clause and urges us to reconsider it.´ Historical Analysis: What was the ³principal evil´ that the 6th Amendment was responding to? (Part III(A) & (B)) Ex parte examinations that are not subject to cross-examination and that are introduced against accused. What are those? Ex: Sir Walter Raleigh¶s treason trial. Main witness (accomplice) testified at pre-trial proceeding (Privy Council) and wrote an incriminating letter, neither of which were subject to cross-examination, either before or at trial. The accomplice did not appear at trial, so the evidence was read to the jury. Raleigh found guilty and executed. Key: Pre-trial statements of witnesses who are unavailable at trial and that were not subject to cross-examination before trial. But NOT all hearsay is covered by the CC. "The text of the 6th Amendment tells us what's not covered." Textual analysis: The Confrontation Clause refers to ³witnesses.´ (Part III(A)) How does Justice Scalia define ³witnesses´? Webster¶s Dictionary: Witnesses ³bear testimony,´ so the evidence must be ³testimonial´ OR its functional equivalent. HOLDING: Under Crawford: The 6th Amendment bars hearsay evidence that is ³testimonial´ or its functional equivalent, UNLESS: 1. The declarant testifies; OR 2. The declarant is really unavailable AND the D had a prior opportunity to cross the declarant. Performing a Crawford Analysis: 1. Are we in a criminal case? 2. Is the government seeking to introduce evidence against the defendant under a hearsay exception? 3. Is that hearsay evidence ³testimonial´ OR its functional equivalent? Statements that ARE testimonial: 1. ³[S]olemn declaration[s] or affirmation made for the purpose of establishing or proving some fact´ (p. 579) 2. Statements made in response to police interrogation, even if not sworn (p. 579) Note: Need not be ³sworn´ 3. Statements produced with ³the involvement of government officers . . . With an eye toward trial´ (p. 581, n.7) 4. Prior testimony at a preliminary hearing, grand jury, former trial

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(p. 585) Crawford Language: ("³We leave for another day any effort to spell out a comprehensive definition of µtestimonial.'" (i.) Testimony or functional equivalent (affidavits, custodial interrogations, prior un-cross-examined testimony)«that declarant would reasonably expect to be used prosecutorially. (ii.) Extrajudicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony, confessions) (Justice Thomas¶s definition in White v. Illinois, 502 U.S. 346 (1992)) (iii.) Statements made under circumstances which would lead an objective witness to reasonably believe statement would be preserved for trial. Statements that are NOT testimonial: 1. ³An off-hand, overheard remark´ (p. 578) 2. ³Casual remark to an acquaintance´ (p. 579) 3.³Statements in furtherance of a conspiracy´ (p. 580-81) 4. At least some business records (p. 580) 3(a). If YES, it¶s inadmissible UNLES declarant testifies, OR declarant¶s unavailable but defendant had prior opportunity to cross. 3(b). If NO, the Confrontation Clause does NOT apply and the statement can be admitted. 2. Davis v. Washington AND Hammon v. Indiana: Facts of Davis:
911 Call; Was he drinking? What's his name? Would probably have been admissible under excited utterances or a present sense impression exception.

Facts of Hammon:
Wife said nothing had happened. Then, police saw the furnace had been broken. Then she put her statements into a battery affidavit.

HOLDING - "Primary Purpose Test" ³Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.´ "Statements are testimonial when the circumstances objectively indicate that there is NO such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Factors: 1. Whether there's an ongoing emergency? 2. Whether the questions were focused on the present or past? 3. The "formality" of the question. Scalia doesn't think the 911 call question is "formal." In Crawford, it was at the station house; it was much more formal. What's the primary purpose in both cases? Davis: Needed to know his name to figure out whether he was a convicted

She was sequestered. 604). 3. involving a ³series of questions´¶. there's no way of telling where he is. She would know at that point whether or not she'd be subject to criminal sanction. so it could be an ongoing emergency. Scalia thinks that the ongoing emergency is over. being taken in the stationhouse. What about the separation of the police and the abuser? This is sufficiently formal. and 5. involving separation of the declarant from the suspect (see Davis. The CRAWFORD . p. 602). The statement served as ³an obvious substitute for live testimony. being recorded by the police interrogator (Davis. 600. Factors Under Primary Purpose for deciding whether a statement is NON-testimonial: 1. The statement was needed ³simply to learn . The declarant ³was [not] facing an ongoing emergency´ (Davis. . 604). The statement bore indicia of ³formality. 602). She asked about the restraining order. and the purpose is information gathering for a prosecution. Statements that are testimonial: SAME as in Crawford ABOVE: Primary Purpose: Statements ³made in the course of police investigation .When the circumstances objectively indicate that there is no . p. and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution´ (p. 602). Hammon: Scalia thinks that she was being prompted. . 3.Downloaded From OutlineDepot. .com felon so that the police know what to expect when they try to apprehend him. 603). what had happened in the past. because [it did] precisely what a witness does on . 2. 602). 602). 600-01). p. p. . is this an eye toward litigation? But. and being made in circumstances in which ³deliberate falsehood´ risked ³severe consequences´ (Davis.´ not ³to resolve the present emergency´ (Davis. . 602. . p. The statement ³¶describ[ed] past events. Ongoing emergency. 4. following custody and Miranda warnings (Davis.¶´ rather than ³events as they were actually happening´ (Davis.DAVIS AFTERMATH: ANALYSIS Statements that are non-testimonial: Same as in Crawford ABOVE.´ such as: being taken in calm circumstances when the declarant was out of danger (see pp. . p. p.

with a concurrence by Thomas (so it¶s really 4-1-4). Illinois (p. prior testimony. From whose point of direct examination´ (Davis.´ (p.RB 405) Note: The primary purpose test is missing! Other Interesting Points: 1. 2. Forfeiture: Giles v. Statements to doctors. prior un-cross-examined testimony)«that declarant would reasonably expect to be used prosecutorially. Specifically reiterates: Thomas¶ test from White v. Illinois. MA and Afterthoughts: Found IN RB p. But how about cases where the hearsay is not the product of custodial interrogation? Blurted out statements? FN. social workers. Statements made under circumstances which would lead an objective witness to reasonably believe statement would be preserved for trial. 403. Is the affidavit ³testimonial´? Yes. RB 406) What test does Scalia use? Says the three formulations are now the definition of the ³core class of testimonial statements. etc. RB 405-06) His definition From Webster¶s Dictionary: ³solemn declaration[s] or affirmation made for the purpose of establishing or proving some fact´ (p. ³[N]ear-contemporaneous´ statements to the events reported can be testimonial (p. as with FRE 804(b)(6). 604). Extrajudicial statements contained in formalized testimonial materials (affidavits. doing µprecisely what a witness would does on direct examination.Downloaded From OutlineDepot. or some objective spectator? Probably objective. How easy is it to decide the ³primary purpose´ in cases when there is some evidence (even small) of an emergency? 4.¶´ (p. Scalia writes 5-4 opinion. RB 405) Davis¶s definition: The affidavits are ³functionally identical to live. Melendez Diaz v. Sort of.´ (pp. p. or all as one definition? 1. Testimony or functional equivalent (affidavits. Facts: Certificate (³Affidavit´) by forensic analyst that the material seized by police is cocaine. RB 408) 2. the speaker or the listener. because ³affidavits´ are testimonial is a ³straightforward application of Crawford. 5. California: Giles v. confessions) (Justice Thomas¶s definition in White v. the declarant is unavailable because of the defendant¶s conduct and the defendant acted with the purpose of preventing the declarant from testifying. RB 405) Another formulation: An ³[O]bjective witness to reasonably believe statement would be preserved for trial. friends. Analyst doesn¶t testify at trial. in court testimony. 502 U. depositions. 346 (1992)) 3. ³Testimonial statements´ can come from witnesses who are not .S. 1 suggests they might be covered. Unanswered Questions: Davis clarifies when police interrogation is testimonial. custodial interrogations. Whose primary purpose? Probably the police.´ No longer just possibilities! Each as an alternative. California (2008): A defendant forfeits his/her rights to confrontation if.

It was admissible. court says it was error for it to come in against . in a criminal case. there's a good chance the jury will infer that the other person is the person being tried alongside. Statements that are not the result of ³interrogation´ can be testimonial! (p. The Bruton Doctrine Bruton kicks in when. you must state the law. E confessed. What was the limiting instruction? (FN2) Don't listen to E's confession as evidence against B. Key evidentiary question: Whether one conspirator's confession can be used against the other. then nonetheless is there a violation of Bruton's confrontation rights because it came in against E. apply it. Redaction: By definition. RB 409) 3. Child witness who tells a social worker about past sexual abuse. RB 414) !!!! EXAM STRATEGY: !!!! If the question addresses a settled issue (clear emergency/911 tape. so the PP test might not apply«"). Under these circumstances. collaterally. but not all. statement against penal interest). Even though it came in against Evans. HOLDING: . is it admissible against Bruton? If E's statement is NOT admissible against B. "I've committed a crime with _______ . TRIED JOINTLY. The CC is too important under these circumstances to let these types of statements come in without the right to confrontation. This is a case where there's NO WAY that the jury can understand the eyewitnesses (p. Here's the best conclusion/here's the best argument. but that's a side issue.. RB 409) 4. and move on). The typical Bruton case is a confession case. or former testimony. Under these factors it would be non-testimonial. There's WAY too much risk that the jury will use this in the wrong way. Reiterates that business records/public records/coconspirator statements are generally non-testimonial (p. B. Analysis: Under these factors it would be testimonial. On appeal. What if it's more ambiguous? E. there's no way that that a jury can follow this.Downloaded From OutlineDepot. Court issued a limiting instruction." and two people are on trial.g. Isn't it true that all limiting instructions therefore are suspect? Court says no. How did this come in? Admissible against Evans because it's a statement by party opponent (or. Make an argue from the available factors. Primary purpose: ("It doesn't seem to be an emergency. evidence is admissible against ONLY of multiple defendants. someone usually says. F: Coconspirators to a bank robbery.

Additionally. despite instructions to the contrary. . The pre-trial statement was subject to crossexamination. then there's no confrontation clause problem. Dealing with Bruton: Some solutions. What if Sylvia made her statement at a preliminary hearing and was crossexamined by Michael¶s lawyer? Green again. And. then a judge is presumed to be able to separate this information out. Examples/Questions: Some Crawford/Bruton Hypotheticals: 1. If the statement is admissible against the D. as a matter of constitutional law. it's a Bruton violation. Under those circumstances it's a violation of Bruton. and not against Michael. as long as it's non-testimonial. if co-defendants are tried together. . Can Sylvia¶s statement be admitted if all references to Mike are redacted? . Sylvia testifies at trial? Green. It's her statement. If it's independently admissible against the D.Downloaded From OutlineDepot. A coconspirator's statement is NOT testimonial. This is admissible because he can cross-examine her. What if Mike and Sylvia are tried together and . If it's only admissible against the co-defendant. D. C. it's only admissible against her. Empanel two juries. In Summary: The Bruton doctrine applies when codefendants are tried jointly before the same jury and the prosecution attempts to introduce a confession by one codefendant that incriminates (but is inadmissible against) another codefendant. No joint trial. A. It violates the CC. This is NOT 403. and the statement of the co-defendant is being offered. no limiting instruction is adequate to protect the D's right to confrontation. will look to the incriminating extra judicial statements in determining the defendant's guilt. Then. It's a custodial interrogation statement. 2. Can Sylvia¶s statement to the police be admitted into evidence if Michael goes to trial alone? These are the facts of Crawford. What if Mike and Sylvia are tried together? This is a straight Bruton application. there is too much risk that the jury will disregard a limiting instruction that the jury not consider the confession against the non-confessing codefendant. In such circumstances. Sylvia made her statement before her arrest as a co-conspirator? Under Crawford it¶s admissible. She doesn¶t testify at Because of the substantial risk that the jury. B. do a separate Crawford analysis. there's NO Bruton violation. the admission of D's confession in this joint trial violated D's right to cross-examination. It's non testimonial if it's made in furtherance of a conspiracy. if the D is willing to waive their right to a jury. Under Bruton. 3.

" it's probably okay. This is NOT a Bruton violation. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to . Hearsay. Rule Language: 602: "Rule 602. Crawford violation? Was Noel's statement testimonial? Under the primary purpose test: Scalia says that this is the classic statement that's NOT a violation. Problem 8. [6. No criminal in that position would think about "preserving the evidence" against them. Declarant spoke during the course of. 703. If the jury can reasonably infer that it involves the D. seven people involved. in a criminal case. Then. we need to tell him what the clear cut answer is (The definition that the court has used that's clear cut (to show testimonial v. Noel writes letter to inmates: "Knoller likes to refer to their scheme as 'Dog O' War' operation. Statement by party opponent. Bank robber. but not all of them." Assume it's offered for its truth. Note: If it's a clear cut If the reference by the D is being redacted. Bruton kicks in when. evidence is admissible against one defendant. non-testimonial) that co-conspirator statements are non-testimonial). Redactions might work in some situations where there's no way that a jury can infer the blanks. Bruton violation? Noel takes the 5th. 406). BUT: Admissible under the co-conspirator exception (p. Against Knoller.] Reliability: Lay and Expert Opinions: 701. Conspiracy included the declarant (Noel) and the party against whom the party is being offered (Knoller). ALWAYS consider whether there's a FRE 403 reason to keep evidence out. E. Conspiracy existed at the time the OOC was made. then there MAY not be a CC violation. the conspiracy.g. 702. 704(?). Lay Opinions: 701 (and 602 again).6: "Dog O' War" Facts: Noel/Knoller tried jointly as associates of Aryan Brotherhood gang in dog mauling operation and death of Whipple. and in furtherance of.Downloaded From OutlineDepot. Admission. Is it admissible?: Against Noel? Yes. then it's a CC violation. and all you have after redaction is "I was a getaway driver in a bank robbery. It's a conspiracy. 705(?) A.

technical or specialized knowledge. 179): "Courts have permitted lay witnesses to testify that a substance is a narcotic. degrees of light or darkness. Evidence to prove personal knowledge may. weight. relating to opinion testimony by expert witnesses. Summary: Lay opinions are fine IF: Rationally based on witness¶s perception. Not based on scientific. it's NOT a lay opinion. the manner of conduct." If you NEED to have specialized knowledge. because FRE 702 allows experts to do things lay witness can¶t. If scientific. and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. White Powder: 21-y. Found cocaine.3. must have a proper foundation under FRE 901: Evidence sufficient to support a finding that the matter in question is what its proponent claims ACN: The ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(es) to the appearance of persons or things." As with all evidence." Personal knowledge: "Results from a process of reasoning familiar in everyday life. where the cocaine was manufactured? Or. general impressions. physical characteristics. Helpful to the jury. or other specialized knowledge involved. and an endless number of items that cannot be described factually in words apart from inferences. temperature. need to qualify as an expert. technical. competency of a person. sound. the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness. size. This rule is subject to the provisions of rule 703. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert. also. Had been using it since 14. identity." Compare: What if the question was.180): How it was manufactured. .'' Problem 9." 701: "Rule 701. Proper basis? Answer is in ACN (p.. as long as there is a sufficient basis. Based on rule. lighting. courts have allowed lay persons to testify about: speed. and (c) not based on scientific. consist of the witness' own support a finding that the witness has personal knowledge of the matter.Downloaded From OutlineDepot. etc. Very important. appearance. tasted it.o. there are certain notice and discovery provisions relating to expert testimony that do not exist for lay testimony. or other specialized knowledge within the scope of Rule 702. technical. distance. distance. the purity of the cocaine based on its chemical composition? ACN (p. or the distribution network. Specialized knowledge: "Results from a process of reasoning which can be mastered only by specialists in the field. FRE 702 applies. FRE 701 seems liberal in admitting simple opinions. but need not.

Must have special knowledge. training. training. Just nothing that seems ³expert. Expert Testimony: INTRODUCTION: 1. skill.´ B. experience. a witness qualified as an expert by knowledge. 3. training. however. Who Qualifies as an Expert?: 702 Language: Rule 702. is over the ³expert¶s´ qualifications.. Court COULD rule it inadmissible under Daubert. or education on topic of testimony This can be anybody.3 (that was lay testimony). Smoked it more than 1.g. and sold it more than 20 times. identified it more than 100 times. but the qualifications probably wouldn't be an issue. may testify thereto in the form of an opinion or otherwise. Jinro America Jinro v. and "high" he got. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Testimony by Experts. he probably has enough of a basis.5: Horticulturalist (p. skill. 1. What is Pelham¶s expertise based on? Observing Korean businessmen. Based on experience alone. training. training. Compare with 9. technical.Downloaded From OutlineDepot. skill. "If scientific. or education" Knowledge/skill? Yes. Training? No. Must be the product of reliable methods. you'll probably have sufficient qualifications to be qualified as an expert. Could tell by look. experience." Problem 9. 4. Remember Colombian marijuana expert? But must be expert on topic of testimony. skill. Must be based on adequate facts. Is he qualified? (knowledge. 2. Who qualifies as an expert? Almost anyone who has sufficient ³knowledge.000 times. but also whether the expert is qualified to give the . smell of smoke. Experience? Yes. (2) the testimony is the product of reliable principles and methods. Must concern a topic beyond the understanding of average juror and assist jurors. experience. America: The debate. The rule is VERY LIBERAL: If you have specialized knowledge.´ Example: Fine: ³He looked crazy. and (3) the witness has applied the principles and methods reliably to the facts of the case. experience. 693): F: Testifying against trafficker. skill. experience. or education. or education´ to give the opinion rendered First Requirement: Must have special knowledge. if (1) the testimony is based upon sufficient facts or data. or education on topic of testimony.´ Probably not fine: ³He¶s clearly schizophrenic. Does that make him qualified as expert to opine on honesty of Korean businesses? Key: The question is not only whether the expert has sufficient qualifications.

.´ In other words . . 2. Expert does an analysis of the evidence before the trial. 697) Experts are allowed to testify based on hearsay and need not base their opinions on personal knowledge (see FRE 602). Testimony that merely tells jury what result to reach. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Hygh v. ." Language: "Bases of Opinion Testimony by Experts:" FRE 703 "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. Expert testimony CAN ³embrace´ ultimate issue but NOT supplant the role of the judge or jury.´ Summary: Must concern a topic beyond the understanding of average juror and ³assist´ jurors. ³Whereas an expert may be uniquely qualified by experience to assist the trier of fact. What is the expert qualified to testify about? (p.2d 359 (2d Cir 1992).´ FRE 704(b): ³No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Testimony that states a legal opinion. Jacobs. Testimony that passes on credibility of witness. expert¶s testimony can ³embrace´ the ³ultimate fact. out of bounds. ." Adequate Basis: Facts or data perceived by OR made known to the expert at or before hearing. out of bounds. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. 961 F. It MUST concern a topic beyond the understanding of average juror and ³assist´ jurors. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.Downloaded From OutlineDepot. Improper & Proper Topics of Expert Testimony: 702 & 704 Opinions on Law AND Ultimate Issue: FRE 704(a): Except for 704(b). he is not qualified to compete with the judge in the function of instructing the jury. Such ultimate issues are matters for the trier of fact opinion rendered. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue . out of bounds. Expert opinion tends to carry special weight with the jury. Third Requirement: "Must be based on adequate facts.´ Second Requirement: "Must concern a topic beyond the understanding of average juror and assist jurors." FRE 702: ³If scientific. then testifies. technical. .

FRE 803(18): Exception to FRE 703: Learned treatises are admissible as substantive evidence if the expert (or someone else) establishes their reliable authority. Ex: Gray¶s Anatomy (1918) Read to the jury. not shown to the jury. 1983) 705: Disclosure of Facts or Data Underlying Opinion FRE 705: On cross-examination.2d 238. but what experts in the relevant discipline deem it to be. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.´ In re Japanese Elec. 276 (3d Cir. if so. 611 F. Prods. "Facts Made Known to" Expert Before Hearing: If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. Proper Bases of Opinion Testimony: 703 & 705 [7. the hearsay. if inadmissible. must be based on type of fact or data ³reasonably relied on by experts in that field. the opponent can ask about the underlying hearsay that is the basis for the expert¶s opinion. But.. ³The proper inquiry is not what the court deems reliable. or on hypotheticals put to him by attorneys. FRE 501 . Antitrust Litig.´ One Wrinkle!! "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. the judge CAN admit those facts for the limited purpose of ³assisting the jury to evaluate the expert¶s opinion´ (but not for their truth!) Test: ³[P]robative value must substantially outweigh prejudicial effect´ (Reverse 403!) Limiting instruction! 703 Reliability Analysis: WHO Decides? What Standard? 104(a)!!!! ³If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion upon them." For expert testimony based on ³[hearsay] facts made known´ to the expert. 723 F.´ In re ³Agent Orange´.Downloaded From OutlineDepot. Expert¶s opinion CAN be based on hearsay! OR An expert bases his testimony on either evidence he observes at hearing. an opinion which rests entirely upon them must be excluded. J.). remains inadmissible by proponent. Supp. 1223 (1985) (Weinstein.] Privileges: 501 A.. Why? C.

E. AND the notion of confidential information. Problem 11. as a public policy matter. Language: "Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority. . Jaffee v. Rationale for privileges. Redmond**** (1996): Issue: Whether it is appropriate for federal courts to recognize a "psychotherapist privilege" under Rule 501 of the FRE. Confidentiality: Duty exists irrespective of court proceedings. We want therapists to disclose to help avoid threats. that you don't. government. person. Remember: FRE 501 left the evolution of federal privileges to federal courts based on ³reason and experience. and prevent the violence. A-C privilege vs.1: Relayed Threats The essence of confidential communication is that there's a subjective expectation that the information will be kept confidential. . Difference between "Privilege" and "Confidentiality:" Privilege: Holder of the privilege cannot be forced to disclose information that is privileged in court proceedings. in civil actions and proceedings. Familial Privileges .Downloaded From OutlineDepot. Upholding confidentiality encourages people to go to them. Decision is based on "reason and experience. person." Introduction: Advisory Committee recommended several privileges (501-513) The only one enacted is 501. AND to clinical social workers." The goal of protecting confidentiality has to serve a public good: We want people to be mentally healthy. the privilege of a witness. duty of confidentiality C. government. We'll apply this across the board. This goes to whether there's a right to confidentiality.g. The court says. or political subdivision thereof shall be determined in accordance with State law. State. Here we're just dealing with the issue of whether there can be a forced disclosure in court proceedings. the privilege of a witness. There's a difference between recognizing the existence of a privilege. For OUR purposes (gross over simplification): Federal common law applies in all cases except diversity cases . or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. Conclusion: We're not going to balance case-by-case to determine such a privilege. However. Psychotherapist Privilege Proposed 504.´ B. State. he KNEW that the information was being disclosed.. with respect to an element of a claim or defense as to which State law supplies the rule of decision.

Spousal Testimonial Privilege): 505 Life After Trammel: General rule: Spouse in criminal case CAN'T be compelled to testify against defendant-spouse.a. The "Privilege Against Adverse Testimony" (a. Could have rendered issues in Trammel moot. The Marital Confidences/Communications Privilege: General rule: Confidential marital communications are privileged. Rationale: To promote marital harmony. The prosecution subpoenas Hank's wife to testify against him. Holder: Both spouses. this doesn't lapse. but if witness spouse wants to. Communications between ex-spouses are NOT privileged. So. and Hanks is charged with her murder. just confidential marital communications. (2) Joint Criminal Activity: Some federal courts say that joint criminal activity eliminates the adverse testimony 1. but is now held solely by the spouse-witness. is the testimony barred by the marital communications privilege? (MCP) Civil or criminal: Both Requirement: Valid marriage (civil union/domestic partnership).Downloaded From OutlineDepot. Ditto for Crawford. the privilege still exists. 2. s/he can. Other federal courts don't. The Marital Communications Privilege: 2 Questions ALWAYS ASK: (1) Is the testimony barred by the adverse testimonial privilege? (ATP) (2) If it's not. Waiver: Both spouses Duration: Forever Even IF they get divorced. The phone call? . Exceptions? (1) Spouse or Child Victim: Doesn't apply when the crime is against witness spouse or child victim. Applying the ATP AND MCP: Bon Fire of the Vanities Hypo: Facts: Maria is found dead.k. The Privilege Under Federal Common Law: Civil or criminal: Criminal Requirement: Valid Marriage (civil union/domestic partnership) Prohibits testimony about: Everything Holder: Witness spouse Waiver: Witness spouse Duration: Marriage only Exceptions? (1) Spouse or Child Victim: Doesn't apply when the crime is against witness spouse or child victim. [Possible Exception] (2) Joint Criminal Activity: Some federal courts say that joint criminal activity eliminates the adverse testimony privilege. Prohibits testimony about: Not everything.

Marital communication privilege? (MCP) Wife? Yes. it's NOT confidential. But she CAN waive Marital communications privilege? (MCP) Wife asserts the privilege. It is a conversation between her and her husband. What's her expectation? She can. And. it might be an issue. He knows he's speaking to his wife. It was a communication that happened during the course of their marriage. Because it happened during the marriage. What if wife/Hanks gets divorced before trial? Spousal Privilege? (ATP/STP) Wife? No. same reasons as before.1: Office Emails Facts: E sends email describing extortion to his wife from work computer that has a "no privacy warning. She CAN intervene to protect her privilege. Prosecutor would argue that this wasn't a confidential communication. Most courts would probably say that this doesn't fly. where there's a non-holder of the privilege in the room. How about his wife?: No evidence that she had the same warning. Marital communication privilege? (MCP) Wife? Yes. and it was confidential. there's no expectation that what he was doing is private. She can still assert the privilege." Spousal privilege? (adverse testimony privilege): Husband wants to assert the privilege. Problem 13. Husband? Yes. or that it will be used in court? Husband asserts: He can't. She can assert it. No proof that she had a pop-up. she CAN waive it. Conversation at home? Spousal Privilege?: (ATP/STP) Wife? Spousal privilege? (ATP/STP) Yes. He thought he was speaking to his mistress. Defense: The warning is pro forma. Confidentiality: Does she have any reason to believe that someone is listening in. Can E assert martial confidences privilege?: Under this privilege. and would have to waive it. BUT. and it was confidential. It ONLY lasts during the time of the marriage. Side Note: If there's evidence that he told her in the past that the stuff was monitored. she can assert. People don't read them.Downloaded From OutlineDepot. . during the course of their marriage.

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