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Adversarial system—requires lawyers to act (object, present evidence, respond to objections, etc.) to work. Judge will generally not act unless asked to—like referees or case managers. Although judges may take a more active role under R 403 & R 611. ii. Rule 102—Purpose & Construction—rules shall be construed to secure fairness in administration, elimination of unjustifiable expense & delay, and promotion of the ascertainment of truth & proceedings justly determined. iii. Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time—relevant evidence may be excluded if probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. iv. Rule 611—Mode and Order of Interrogation & Presentation 1. (a) Control by Court—the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to a. (1) make the interrogation and presentation effective for the ascertainment of truth; b. (2) avoid needless consumption of time, and c. (3) protect witnesses from harassment & undue embarrassment. 2. Example: United States v. Reaves—prosecution wants trial one month for case in chief, court gives 10 days. Okay for judge to use discretion. v. To get evidence in MUST 1. Be one of the appropriate modes of proof a. ordinary witnesses & lay opinion; b. expert witnesses and opinion; c. hearsay witnesses d. documents e. authentication f. original documents g. judicial notice h. presumptions 2. AND be relevant a. condition of everything offered at trial b. waived if not raised 3. AND not be privileged vi. Common Law Common Sense Objections (rooted in R. 403 & R. 611) 1. Narrative—“Tell us what you know.” or “What happened the day of the murder.” Needs to be more specific so judge, jury, and opposing counsel knows what is coming & whether or not to object. 2. Non-responsive (only Questioner can use this objection)—used after the witness answers and says much more than was asked (response objectionable).
3. Assumes a fact not in evidence—“When did you stop beating your wife?” or If witness testified saw Δ at bar, then ask “After the Δ had a few drinks, did you see the Δ leave the bar?” Anything NOT in evidence. 4. Compound Question—when a single question seeks multiple answers, b/c confusing what the questioner is asking and what the answer will signify to the jury. Hint—usually has an “and” in it… 5. Ambiguous—a question that is no reasonably clear & specific (also can say “vague,” “misleading,” “confusing,” or “unintelligible.” 6. Asked & Answered—under 403 judge can exclude waste of time evidence. 7. Cumulative—excessive evidence. For example, calling several witnesses to testify on the same issue or introducing numerous similar exhibits. 8. Misstatement of Evidence—confuses testimony (but usually loses). 9. Argumentative—usually made in response to a rhetorical question. 10. Badgering the witness—argumentative but real mean (loud, too close, etc.) about it. Behavior in an attempt to intimidate the witness.
DIRECT EXAMINATION i. Rule 611(c)—NO leading questions on direct examination UNLESS adverse or hostile party. (BUT should not shall—so judge has some discretion here.) 1. Exceptions to the rule (leading okay when…) a. necessary to develop witnesses’ testimony; i. examples—preliminary matters not material to case (help expedite trial and little harm to other side), or w/ child witnesses or adult w/ communication problems, or leading questions of a witness whose memory has been exhausted. b. when a party calls a hostile witness; i. refuses to answer questions, ii. consistent hedging on answers, OR iii. surly conduct. c. when a party calls an adverse party; d. or when a party calls a witness identified as an adverse party. 2. Example: United States v. McKenna—Judge told defense counsel not to lead on cross unless witness became difficult BUT ordinarily leading Qs are allowed. ii. A leading question = one which clearly suggests the desired response. For example, questions that being w/ “Isn’t it true that…?” or end w/ “…didn’t you?” Also, many questions that call for only a yes or no answer are leading AND questions that start w/ 5 W’s generally not leading. 1. What did you do next? NOT leading. 2. How tall was the robber? NOT leading. 3. How heavy was the robber? in-between. C. CROSS-EXAMINATION i. Rule 611 (c)—leading questions should be permitted on cross ordinarily. 1. Exception—when witness friendly to cross-examiner (up to the discretion of the trial judge to determine who is hostile to whom). ii. Rule 611 (b) Scope of cross-examination—cross-examination should be limited to 1. the subject matter of the direct examination;
2. AND credibility of the witness (always fair game (w/ scope)!); 3. The court may permit inquiry into additional matters in the exercise of discretion (if don’t want to bring witness back later). iii. Example: United States v. Segal—cross examination may reach tapes not played on direct where Δ on direct testified about meetings and conversations generally. Scope is subject matter, NOT specific exhibits. D. RE-DIRECT i. Judge my find no re-direct necessary (up to judge’s discretion)
OBJECTIONS i. Rule 103 Rulings on Evidence: 1. (a) Effect of erroneous ruling—error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected AND a. (1) a TIMELY objection or motion to strike appears on the record stating the SPECIFIC GROUND of objection; OR i. don’t need rule # but do need specific basis for objection 1. Example of specificity: U.S. v. Wilson—relevance objection insufficient to raise R 403 objection ii. timely = means BEFORE the witness answers iii. Rationale for timely AND specific objections: Owen v. Patton—(1) waiver not sure did consent to the error; and (2) unfair to reverse a trial court on the basis of an issue that it had not had the opportunity to consider. b. (2) in the case of excluding evidence, an offer of proof was made or apparent from the context. 2. (b) Record of offer and ruling—the court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. 3. (c) Hearing of the jury—in jury cases proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury. 4. (d) Plain error—nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. ii. Rationale—appellate judge must know what would have been said to know if affected jury/substantial. iii. Types of offers of proof— 1. I would have elicited the following info..., 2. submit a prepared outline of testimony, 3. pages of deposition, 4. Q & A form during recess. 5. NOTE: Cross-examiner NOT req’d to make same offer of proof b/c did not prep witness. iv. Objection cannot be overturned on appeal IF court doesn’t know what the inconsistent statements are so cannot determine whether substantial right of party affected. U.S. v. Winkle
. 2. AND must affect substantial rights (prejudicial in the sense of affecting the outcome of the case) iv. Plain Error a. US. must be an error. Read Rule 103(d) —if you f*** up and forget to do one of the required things above. Generally. SAFER to renew objection (if anything at all has changed need to renew). Result—no judge would have let in had lawyer objected BUT fails plain error test (only review for particularly egregious errors that seriously affect fairness. Harmless Error a. United States v. Rule 104 (a) & (b): Who Decides Objections & How 4 . iii. California. NO hearsay objection. d. Civil Cases have varying standards iv. US (1984)—motion in limine judge says if Δ testifies conviction may be used to impeach him. NOTE: once court makes a definitive ruling on the record admitting or excluding evidence. United States v. Definitive Rulings = a. US (1967)). Young (1985)) b. hypothetical rulings ARE NOT definitive and may not be appealed (Luce v. v. Plain Error requires… (from United States v. BUT then Δ does not testify c. BUT be careful b/c not so sure what is definitive. not mandatory** c. United States. integrity or public reputation of justice). ii. **Puts defense attorneys in a sticky position b/c if bring out bad evidence on direct to soften the blow.1. iii. Supreme court has never put limits on plain error (only requires where miscarriage of justice would result. no error preserved.** vi. Types of Error (103(d)) 1. Ohler v. trial judge may say ruling definitive. AND must be plain (clear or obvious). do not need to object again. other criminal cases have varying standards (depends on the underlying merits of the case) vii. b. the record will ONLY be reviewed for plain error. fundamental rights NOT affected ii. i. Sprigs—sting operation for money laundering and cop testifies what learned from others. then NO WAY to appeal the admission of the evidence. Olano (1993) (interpreting plain error provision in Federal Rules of Criminal Procedure NOT Evidence) i. must be harmless beyond a reasonable doubt if Constitutional Issue (Chapman v. US (2000). Generally Harmless Error if… i. BUT if decide to bring out the objectionable evidence on direct (as strategy b/c know judge said it would come in) waiver of right to appeal from the ruling admitting the evidence. 1. **also permissive.
Rule 104 (e) Weight and credibility—this rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. Ps and Ds) iv. Same rules apply to ALL litigants (civil. (Subject to Rule 401(a))(reasonable juror standard) B. JUDGE DECIDES competency. Goal of evidence rules = justice and opportunity to achieve truth v. Rule 104 (a)—Questions of admissibility generally (most evidence disputes) —preliminary Qs concerning the qualification of a person to be a witness. subject to the provisions of subdivision (b). by testifying upon a preliminary matter. Conflicts between state and federal law can cause some problems. i. (JUGDE DECIDES) a. the existence of a privilege. Trial judges have discretion BUT balance individual assessment w/ uniformity vi. if leads to prejudice or irrelevant) II. ii. or subject to. ii. GENERAL RULE OF COMPETENCY (RULE 601)—every person is competent to be a witness EXCEPT as otherwise provided in the rules. More evidence does not necessarily = more fair (for example. BUT in civil proceedings. (JURY DECIDEDS) F. Hearings on other preliminary matters shall be so conducted when the interests of justice require. the court shall admit it upon. Δ does NOT waive 5th amendment privilege for testifying preliminary matters 5. a. Rules of evidence never trump/bar evidence required by law to prove a claim or defense. Test for R 104 (a) & (b)—Can a reasonable juror believe this? 3. w/ respect to an element of a claim or defense as to which State law supplies the rule of decision the competency of a witness shall be determined in accordance in State law. or the admissibility of evidence shall be determined by the court (JUDGE DECIDES). Rule 104 (d) Testimony by accused—the accused does not. III. Whoever invokes a rule or an exception MUST show entitlement to that particular rule or exception. or when an accused is a witness and so requests. Rule 104 (b)—Relevancy conditioned on fact—when the relevancy of evidence depends upon the fulfillment of a condition of fact. Rule 104 (c) Hearing of jury—hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. **generally. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. WHAT RENDERS A WITNESS INCOMPETENT? 5 . court). 2. State law often means Dead Man’s Statutes (not recognized in fed. 4. FUNDAMENTAL EVIDENCE PRINCIPLES i. In making its determination it is not bound by the rules of evidence except those with respect to privileges. iii.1. become subject to cross-examination as to other issues in the case. COMPETENCY A. criminal.
6. Lack of credibility does NOT make witness incompetent. Rule 606 1. E. 3. 2. U. case.i. Tanner. every witness shall be required to declare that the witness will testify truthfully. AND juror may only testify that the extraneous information occurred NOT whether it affected/persuaded the jury (that is for the court to determine). ii. 5. not the rule. Drug use/sale during the trial DOES NOT constitute extraneous information— no more extraneous than virus. a bailiff’s comments to the jury concerning the case. by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so. NOT incompetency issue BUT credibility issue. What constitutes extraneous prejudicial information? 1. Tanner v. 2. iii. US (1987). 1. Ballistic or other “tests” on evidence may count as external info. OATH OR AFFIRMATION (RULE 603)—Before testifying. D. lack of food or sleep. 6 . ii. Impermissible discussion of insurance of parties probably DOES NOT count. Mental examinations are the exception. Trial judge may order witness examined for sobriety (or lack thereof). COMPETENCY OF JUROR AS WITNESS (RULE 606) i. using drugs. (b) Inquiry into validity of verdict or indictment—juror MAY NOT testify as to any matter or statement occurring during the course of the jury’s deliberations or as to the effect of anything on any other juror’s mind EXCEPT on the question of extraneous prejudicial information improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.S. United States. iii. Drug use MAY temporarily render witness incompetent. or a bribe to a jury DOES constitute extraneous information. COMPETENCY OF JUDGE AS WITNESS (RULE 605)—the judge may not testify at trial as a witness (duh). Reading newspaper accounts of the case. v. 4. Pressure into “compromise” verdicts also probably DOES NOT count. Threats to juror or juror’s family COUNT. and drug sale while jurors for conspiracy to defraud U. C. a.S. (a) At the trial—a member of the jury MAY NOT testify as a witness before that jury in the trial of the case in which the juror is sitting. Jurors alleged drinking. Bedone—prior inconsistent statements DO NOT render witness incompetent. Problem (4 Dissenters but no one made this argument to court)—jurors committing felonies in jury room BUT prosecutor would not prosecute b/c of conflict of interest (want the jurors to hold the Δs guilty) BUT if came back w/ acquittal then prosecutor has incentive to convict the jurors.
Lack of Personal Knowledge (Rule 602) 1. An interpreter must qualify as an expert (under Daulbert. see below). Commissioner of Internal Revenue— state’s alternative oath is permitted. State—witness not shown to be able to communicate compounded by interpreter whose interpretation could not be tested. Minimal Standard—child must understand that must tell the truth. Some courts say may be waived if not objected to in a timely fashion.” ii. ii. May be difficult to prove child competency. Capps v. i. and to describe them for the benefit of the trier of fact. FOUNDATIONAL COMPETENCY i. ii. iii. United States v. Watson v. or education. Rule 702 requires interpreter must possess sufficient “knowledge. H. i. 1. Interpreter must take oath to make true translation. Phibbs—found witnesses with history of delusions who had spent time in mental health facilities competent b/c mental abilities were not so limited that they did not have sufficient capacity to perceive events. hearsay might be admitted (for example. MENTAL INCOMPETENCY—rigorous standard. iv. No particular oath is required. As long as it isn’t a clever way to permit perjury—for example “I would not lie to stay out of jail” b/c may lie for another purpose. God does not have to be mentioned—only needs to be calculated to awaken the witness’s conscience and impress the witness’ mind with the duty to tell the truth. Witness who cannot take oath IS NOT competent. but if don’t will lose (if victim is child). skill. (Questions about pages 74 to 78) INTERPRETERS (RULE 604)—an interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 1. experience.i. 1. training. to remember them. If child is incompetent. excited utterances). F. Most states at 10 or 12. Federal Rules strongly disfavor barring witnesses on competency grounds due to mental incapacity. Commonwealth. thus methodology must be reliable. No minimum age under federal rules BUT some states have presumptions. ii. Ferguson v. G. Lack of Personal Knowledge (Rule 602)—a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the 7 . 1. Interpreter-nurse who claims to be able to understand patient cannot testify where there is no objective test to show accurate interpretation. I. iii. CHILDREN i. iii.
Judge evaluates under R 104(b)—must be enough evidence to support a finding by a reasonable jury that the witness perceived the facts. Witness may not have personal knowledge of the ACT. e. Baker v. What is sufficient personal knowledge? a. It is standard practice to refresh a witness’ recollection. Generally a witness’s claim of own knowledge is sufficient. to cross-examine the witness thereon. one person cannot have personal knowledge of another person’s reason (what is going on in another’s person’s head). Evidence to prove personal knowledge. b. State v. Davis. if a witness uses a writing to refresh his memory for the purpose of testifying either — a. Inconsistency does NOT negate a claim of personal knowledge. ANYTHING may be used to refresh recollection. Absolute certainty is NOT required. Seeing something quickly is usually enough (Adkins v. (2) before testifying IF the court in its discretion determines it is necessary in the interests of justice. to inspect it. Lanci). f.” b. i.witness has personal knowledge of the matter. excise any portions not so related. Writing Used to Refresh Memory (612)—except as other wise provided. AND IF it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera. 2. ii. 3. (Effects weight not admissibility). (discretionary right to see document c. Refreshing Basics a. OR b. Generally speaking. Bouchard—mother of 3 year old heard child say “Grandpa did it” after found blood around daughter’s lower abdominal and vaginal areas. State—okay to use officer’s report BUT use to refresh may waive privilege and work product. i. United States v. “I saw it” that is enough UNLESS no reasonable person could believe the person actually saw it. consist of the witness’ own testimony. State—opinion as to drunk driving based on sufficient knowledge. (If someone says. Refreshing Recollection (Rule 612) 1. (1) while testifying (absolute right to see document). d.) 2. c. but had personal knowledge that the statement was made and the situation surrounding the hearsay exception (had personal knowledge that the utterance was excited. but need not. Lay opinion requires personal knowledge. ii.** d. i. Dirickson) BUT sheer speculation or “imagining” a fact is not sufficient personal knowledge (United States v. Rule 701. may. 8 . Rule 602 DOES NOT preclude (admissible) hearsay statements assuming the witness heard the statement being made. (Subject to R 703 relation to expert witnesses. Gladden vs. **An adverse party is entitled to have the writing produced at the hearing. and to introduce in evidence those portions which relate to the testimony of the witness.
AND d. AND b. A witness other than the defendant himself may not offer testimony to the extent that it is enhanced through hypnosis. 5. Rule 803(5)—the following are not excluded by the hearsay rule. 2. But now has insufficient recollection to enable the witness to testify fully and accurately. v. Williams—witness admits statement was accurate while memory was fresh but now is claiming cannot remember (unusual case b/c direct examiner is fighting witness—won’t say wasn’t accurate b/c it was a statement to the FBI and doesn’t want to be prosecuted for lying to them BUT reluctant to testify so saying don’t remember). AND c. US (1987) 9 . 6. 7. AND e. a. Shown to have been made or adopted by the witness. People v. United States v. U. Rock v. Meaning of “fresh” is a flexible standard (discretion of trial judge). Zayas. 2. even though the declarant is unavailable as a witness—a memorandum or record concerning a matter about which a. b. Senak—court admitted statement made 3 years after the events took place. Evidentiary Value of Refreshing Documents a. When the matter was fresh in the witness’ memory. a.S. (Question for whether foundation is satisfied is for trial judge—104(a). Made or adopted—witness need not record or sign statement (another person can) but may need BOTH people to lay foundation. A document to refresh used by refreshing counsel solely to refresh (NOT to prove or disprove truth of contents).3. the memorandum or record may be read into evidence but may not itself be received as an exhibit UNLESS offered by an adverse party (usually b/c of an inconsistency). A document to refresh used by opposing counsel is to show memory claim is false (NOT to prove or disprove truth of contents) iii. Witness can exclude the statement by claiming memory was not good or the statements were not accurate. 3. Recorded Recollection (Rule 803(5)) 1. Most jurisdictions say NEVER.) iv. Some say taint witness when hypnotize so witness CANNNOT testify. Except in criminal case where defendant has the right to testify on his own behalf and that right outweighs the State’s interest in excluding prejudicial evidence. Arkansas. Hypnotically Refreshed Memory 1. If admitted. b. to reflect that knowledge correctly. A witness once had knowledge. A minority of jurisdictions require the memo to be made or adopted by the witness at our about the time of the events. a. 3. Rationale—don’t want a forgotten recorded recollection to have more weight in the jury room than live testimony. May be used by a reluctant witness BUT witness must lay foundation. 4.
v. 1. Common law relevance—whether more or less probably to make things true ii. BASIC RELEVANCE PRINCIPLES i. Irrelevant—reversed. To be relevant. Foster—drug deal 2 people in car. AND may also be insufficient to meet the burden. Whether something is a “fact of consequence” may turn on substantive law— what must be proved (for example. iv. Evidence may be relevant AND admissible. vi. Whether a record of the session was kept. it must be any fact of consequence to the action (make it more or less likely one side will prove something needs to prove). Any tendency of a fact to make it more or less probable is relevant. v. Common law materiality—whether issues of consequence to action 2. RELEVANCE A. BUT evidence may be too remote (even if relevant) 1. iii. DEFINITION OF “RELEVANT EVIDENCE” (RULE 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 probably or less probably than it would w/out the evidence. causation or proximity for emotional distress 10 . iii. Conviction reversed—b/c officer’s inability to see into car casts doubt on to the officer’s ID of defendant. United States v. 1. 1. objection irrelevant sustained. a. III. expert testimony offered by both parties as to the procedures used. testified that often there is no other physical drug evidence when there is a kingpin or a conspiracy situation BUT neither of those things are true in this case (no other evidence to prove that). 2. Used the following non-exclusive factors to determine whether or not to allow hypnotically refreshed testimony (did not allow testimony): i. iv. Relevance includes materiality—current relevance requires that evidence must shed some light on those issues that are properly in dispute.4. For example. B. ii. Whether the witness was subject to suggestion. one arrested & convicted. Whether corroborating evidence exists to support the reliability of the refreshed memories. Hall—where government has no physical corroborative evidence of drug possession/distribution brings in DEA agent. Attorney asked officer if could see 2nd person in car and objection irrelevant sustained. United States v. Relevancy is not = to sufficiency. Some jurisdictions say maybe. Borawick v. Whether the witness was highly hypnotizable and more prone to suggestion. Danger—suggests agent may know something not telling jury. Shay. a. 2. Whether the hypnotist was sufficiently qualified. attorney asked officer if put out 2nd person ID over radio. barring testimony defendant wore seatbelt 1 week before accident or road was icy 2 weeks before accident (BUT this is really a 403 limitation). Whether used to refresh OR part of therapy. 1.
proves a point)—only question is whether it relates to an issue that is properly in dispute. Judge determines relevance (based on logic & experience). 3. 3. Still REQUIRES OBJECTION. Relevance of Circumstantial evidence (requires inferences)—where an inference is required between the proof itself and the ultimate fact o be established judge uses logic and experience to determine whether admission of the evidence will advance the case. long ago. i. ii. CONDITIONAL RELEVANCE i. Failure to introduce evidence may be relevant evidence. Direct & Circumstantial Evidence 1. Imagine large money draw and purchase of plane ticket before murder or standing over w/ smoking gun (circumstantial) vs. evidence which is not relevant is not admissible. **Must be sufficient evidence (preponderance) for jury to find ALL 3 facts.) ii. Personal knowledge (Rule 602). or by other rules prescribed by the Supreme Court pursuant to statutory authority. by these rules. Remember. Prosecution evidence that defendant’s cousin had shotgun 2.** iii. or subject to. Only relevant if shotgun is tied to defendant (ex. by Acts of Congress. When fact B is needed to make fact A relevant. 11 . 2. Neither is more powerful—judge instructs jury that both powerful.” (Trial judge has discretion to either require proof of the condition in advance OR to admit the evidence of the fact subject to “connecting up” by later proof of the condition. Tory—acceptable for defense attorney to bring up that prosecution did not show surveillance tapes in their possession during bank robbery trial. C. 1. 2. iii. Relevance of Direct evidence (if believed. Rule 1008—Best Evidence Rule iv. IRRELEVANT EVIDENCE GENERALLY INADMISSIBLE (RULE 402)—all relevant evidence is admissible. except as other wise provided by the Constitution of the United States. vi. far away eye-witness testimony (direct). cases are proved pieces at a time. Rule 104(b) applies in 4 situations: 1.claims or in statutory rape whether defendant thought victim was older is not at issue). Rule 104(b)—When the relevancy of evidence depends upon the fulfillment of a condition of fact. Evidence regarding the cousin’s shotgun and defendant’s access to it is ONLY relevant if there is also evidence that the defendant shot victim a. RELEVANT EVIDENCE GENERALLY ADMISSIBLE. defendant borrowed it from cousin on day victim shot) 3. the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Authentication (Rule 901). United States v. a. D. the court shall admit it upon. 4. Example: Homicide Case 1.
7. or misleading the jury. waste of time. 6.iv. ii. May admit the inference that destroyed document had bad stuff on it for destroyer as relevant (and not unduly prejudice) evidence if destroyer had reason to know litigation pending. or by considerations of undue delay. 3. a. asked & answer. a. Failure to let defense bring in deposition that plaintiff initially introduced to corroborate plaintiff (that later turned out to be impossible and therefore lies) withdrawn by the plaintiff was error (should have let in)—was 401 relevant AND NOT unduly prejudicial under 403 b/c suborning perjury is a serious offense and can be considered by the jury. For example. Marriot Int’l 12 . CONFUSION OR WASTE OF TIME (RULE 403)—although relevant. The federal statute that makes it a crime to promise anything of value for testimony DOES NOT prohibit plea bargain agreements. 4. 403 Balancing 1. evidence MAY be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 403 Basics 1. Blinzer v. a. (rightly prejudicial) 2. 2. State competency rules govern under Rule 601. E. Balancing should be on the record (for appeal court). or needless presentation of cumulative evidence. confusion or misleading. confusion of the issues. 5. Extremely probative of plaintiff’s desperate attempt to corroborate story with a liar (probably lying) AND not unduly or unfairly prejudicial b/c of the abhorrent conduct. Power to exclude is rarely invoked. Harm = unfair prejudice. McDade Amendment subjecting federal lawyers to state rules NOT intended to create rules of evidence or exclusion (only professional responsibility) 2. **Prejudice not a wise argument to make in bench trial—better to say undue delay. Error under 403 will be found ONLY if the trial judge’s decision cannot be supported by reasonable argument (much deference to trial judge). Wilmington Trust. and other common law objections). Notes that State Bar Rules (or any State Law) not sources of exclusion under Rule 402). undue delay or waste of time or needless cumulative evidence. State law governs. EXCLUSION OF RELEVANT EVIDENCE ON GROUPS OF PREJUDICE. But where State law has been incorporated. Most common objection (explains argumentative. McQueeny v. i. b. 8. Lowery (11th) 1. Credibility questions still for fact-finder. Interprets federal law to exclude plea bargain agreements. Harm must SUBSTANTIALLY outweigh probative value (There is a presumption in favor of admitting evidence). a. United States v. Requires explicit exclusionary language to exclude otherwise relevant evidence. ONLY unfair prejudice matters while ALL probative evidence matters.
Gay sexual materials and KY Jelly not admissible to so knowledge of illegal sexual acts b/c too prejudicial (and not probative of guilt or anything but homosexual desire). Ordinarily evidence of poverty is inadmissible to show motive to steal. and jurors could be prejudice b/c other type of sexual deviance (ky jelly. a. BUT the degree of similarity matters. People of the Territory of Guam v. Bifurcation may be in order for fairness (to not escalate the actual damages as well). Montgomery Ward ii. Unfair prejudice—anti-homosexual sentiment. Hall v. a. Hankins b. Found 6 sexually explicit magazines at his apartment (testimony about 2 stories out of the 6 magazines). Must know value of defendant’s wealth in order to access an appropriate punishment in the form of punitive damages. Poverty or Wealth—generally supposed to be irrelevant. Ability to pay should not determine amount plaintiff gets/does not get. Traditional Applications of Rule 403 1. & children’s underwear. City of Clarksburg where excised bullet from corpse could in wrongful death suit against the police was excluded from evidence (not an abuse of discretion. iii. Escape. Prosecutor alleged evidence knowledge of illegal acts and various forms of deviant sexuality. a. Bribing a juror. Evidence of escape admissible where escaped from custody 7 days after arrest—not unduly prejudicial to infer consciousness of guilt from escape. United States v. Note—only would be relevant if could connect up to other evidence— child testifies to use of surgical gloves or exact sexual act & words in article (but not generally). b. threatening a witness. Probative value—small b/c everyone knows child abuse is illegal AND everyone knows it is possible for adults to have sex with children (it does not show knowledge of a specific act). surgical gloves. c. 13 . Exception for punitive damages. Only okay in criminal cases to show sudden accumulation of wealth or motive d. connection of homosexuals w/ child molesters. K-Y jelly. b. 2. 3. and Cash—generally conduct admissible as an admission of consciousness of guilt as long as short period of time between crime (or cash surplus) and fleeing scene. Flight. Similar Events a. Shymanovitz (9th)— middle school guidance counselor charged w/ sexual abuse of boys. surgical gloves). c. i. But see Hinkle v. 3. giving a false exculpatory story is also evidence ordinarily held relevant to the defendant’s consciousness of guilt. Similar events may be relevant to prove product defect or negligence b.a.
Similar plane crash deemed insufficiently similar to justify admission by trial judge. Evidence of other lawsuits or claims by plaintiff generally NOT relevant (unless under Rule 404(b)—schemes). X-ray showing broken arm admissible b/c shows severity of the crime and illustrates testimony. Gruesome Pictures a. Gen. Absence of similar accident claims may also be relevant. d. Beech Aircraft—need SUBSTANTIAL SIMILARITY. Courts fear trials w/in trials (more complicated to jury. i. Accident reconstructions require substantial similarity and accident recreations must be different.—General motor’s tape was neither (too similar to just represent general principles and not similar enough to be a recreation). b. in must NOT APPEAR to be too similar to the accident UNLESS conditions are identical. Prior dealings between parties may be relevant. Nachtschein v. then the demonstration does not need to be substantially similar to the conditions of the accident BUT must be properly conducted and different. 6. Terry v. i. State. (Not probative of anything that the defendant did and extremely prejudicial b/c atrocious. Pictures of the crime scene are generally admissible for an expert to illustrate testimony as long as says will help testimony. Gilbert v. e. i. Other Related Acts a.) Terry v. Photos before autopsy—generally okay. c. Pandit v. When an experiment is entered to explain certain scientific principles to the jury (as demonstrative evidence) rather than to show how exactly the accident occurred. d. Experiments & Experience a.) Terry v. longer trial. In fact. Other sales may be relevant as the best evidence of value of property in a market economy. Rare case photos unduly prejudicial. State. upheld (much deference to trial judge). Photos AFTER autopsy—so horrible reversible error. Exception would be for history of false or fraudulent claims BUT just litigiousness will probably not get in. undue delay—less likely to be admitted b/c adds to the harm). Fusco v. c.—car seat placed on sled and sent down hill to show principle different enough from the car accident. 5. b. i. b. (course of performance and course of dealings) c. Lopinson (?) Alternative Perpetrator Evidence 14 . Cosco.4. Corp. (Probative b/c corroborate the verbal description of the crime and not UNDULY prejudicial. Motors. State. Am Honda Motor Co. 7. More likely admissibility of similar accidents to prove NOTICE. Inc.
b. BUT not the power of narratives “syllogism is not a story” AND the power of the prosecution to prosecute as it likes—but limit when Δs right to a fair trial is on the line. trial judge must consider substituting the alternative. b. No item of evidence is an island (would encourage offers of prejudicial evidence). McVeigh. a.a. United States v. ii. iv. & 4) John Doe 1 & 2 look a likes show up after bombing enough similarity to leave evidence of alternative perpetrator b/c relevant to show sloppy investigation AND that he was not the culprit BUT does not believe would not have reversed the result (b/c of the large amount of evidence). Efforts to cast another person as the actual perpetrator generally must be something more than remote or speculative (more than a red herring) BUT how much more depends on the jurisdiction. Reversed conviction. Saltzberg believes showing that 1) anti government group. 1. Δ offered to stipulate he had a felony conviction BUT prosecution refused to stipulate in order to bring out the specific type of felony conviction at trial. Generally gory details of the suffering okay in penalty stage BUT not in the guilt stage b/c has virtually no probative value on the issue of guilt. Evidentiary Alternatives & Stipulations 1. 2) acquired components of bomb. HELD. 3) planned to bomb Murrah building. Trial court did not err in excluding the evidence of another possible perpetrator OR the suspension of the investigation of another terrorist group. Trial judge let conviction in. Souter (majority-5) i. United States. Congress treated all prior felons alike in the statute (no specific provision for violent felons or felons who are charged w/ similar crimes later)—so the nature of the felony is irrelevant under the substantive law. US (1997)—Δ charged w/ felony in possession of a fire arm and assault w/ a dangerous weapon. Undue prejudice = propensity. letting the conviction in violated R 403 b/c probative value little (agreed to stipulate felony conviction) and prejudicial value strong b/c similar nature of the prior conviction (for assault causing serious bodily injury). If one item is extremely prejudicial and an alternative is not. ii. O’Conner (dissent-4) 15 . **Old Chief v. i. generalizing a Δs earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged. The use of the gruesome facts about people being maimed & injuries sustained are on the fence. iv. Practical effect—Stipulations rarely required. iii.
firing employees covered. BUT feasibility rarely implemented b/c Δs will concede feasibility but argue that even had the change been made the injury would have still occurred. NOTE—when lawyer says “lighting was SAFEST available. 407 Basics 1. feasible alternatives b/c they have not been implement. a defect in a product’s design. is NOT admissible to prove… a.) A. 2. 3. a defect in a product. control. SUBSEQUENT REMEDIAL MEASURES (RULE 407) i. if taken previously.) 4. Substantive tort law standard of care = know or should have know at the time accident NOT after. Rule 407—When. c. Impeachment exception applies when expert or witness says “safest” or “best” product. Broad coverage—changes in design or policy ARE covered. 2. 2. BUT if offered for another purpose then can make a 403 objection. after an injury or harm allegedly caused by an event. Repairs must be AFTER the harm. avoids confusing the jury (causation). d. (Basically saying in these circumstances the evidence is more unduly prejudicial than probative and don’t want to take the chance anyone will get it wrong. iii. 5. negligence. culpable conduct. (But Rule 403 may result in exclusion. OR impeachment. B. e. etc. 3. Cameron v. or feasibility of precautionary measures. would have made the injury or harm less likely to occur. OR a need for a warning or instruction. iv. to encourage (not punish) repairs. ii. a. Otto Bock Orthopedic.IV. Third party subsequent repairs are not necessarily excluded. COMPROMISE (RULE 408) 16 . measures are taken that. c. Then can impeach w/ subsequent remedial measure. This rule does not require the exclusion of evidence of subsequent measures (IS admissible) when offered for… a. e. Rule 407 IS NOT subject to balancing.” then controverts the feasible options AND opens the flood gates for subsequent measures that are safer. d. Covers customer letters to doctors who put in artificial leg part sent AFTER the injury properly EXCLUDED. Rationale of 407 1. a. another purpose (if controverted) b. b. such as proving ownership. ARTICLE IV GENERALLY—codification of the common law & the right result of Rule 403 exclusions. evidence of the subsequent measure(s) 1.
BUT comes IN IF a. a. Alpex Computer Corp. Cesnna Aircraft. no infringement. to prove liability for or invalidity of the claim b. sued lost who refused to licensee. 1. Split on whether settlement negotiations in CIVIL cases are admissible in subsequent CRIMINAL legislation. 3. Salzburg thinks this is going a little far w/ dispute—certainly in dispute when sued or when told will be sued. vii. Rule 408—Evidence of (1) furnishing or offering or promising to furnish. then put ad in paper for same settlement offer w/ the rest. NOT admissible IF a. v. Tripler & Co—Δ cannot enter into evidence that offered to settle case by giving job in different subsidiary. thought either patent invalid. Nintendo—Π sent letters to video game people asking to licensee patents (form letter). (?) What is the point of this case? (?) iv. Settlements show bias when that got something in exchange for testimony (or something in relation to the case). b. McShain v. Evidence of conduct or statements made in compromise negotiations also NOT admissible (if offered to…). 4. 1. 17 . District Judge says—implicit dispute B/C a. proving bias or prejudice of a witness. v. (1) Must be dispute BUT here judge finds implicit dispute AND (2) confidentiality of settlements not required. Note—why don’t say “sorry” after a car accident B/C admissible b/c no dispute yet (have not been sued yet). OR if it is offered for another purpose SUCH as… i. F.R. some settled. could get away w/ it. 2. Impeachment purposes—split over whether settlement statements/negotiations can be used for impeachment for prior inconsistent statements. Issue: Whether an offer can be made when ONLY one side believes there is a dispute? (Nintendo did not think infringing AND had not been sued. or its amount 2. NO distinction exists between the offeror and the offeree in 408. b. (of someone who tried to settle but failed) vi. Settlement let in when Π settled against one Δ in exchange for $10 AND a witness in case against other Δ. OR proving an effort to obstruct a criminal investigation/prosecution (obstruction of justice) ii. Rational of 408 (Compromise Exception)—to encourage compromise iii.) Evidence excluded. negating a contention of undue delay. otherwise discoverable merely b/c presented in negotiations. OR (2) accepting or offering or promising to accept.i. ii. Pierce v. iii. c. Salzburg agrees settlements/offers do not have to be confidential BUT cannot be marketing strategies. 1. a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity of amount.
says “I am guilty. ii. Rationale—to encourage good Samaritans BUT semantic trap for those who don’t know the rule. opened the door—rule of completeness). iii. (May lead to excluding evidence BUT cannot get evidence in. 1. When evidence being offered for another purpose (proving bias or prejudice of a witness. I will pay your doctor’s bills b/c it is all my fault—admissible. then 403 applies. 5. Encourages plea bargaining. a party to a completed settlement may sue to enforce it (valid K).” admission of all the elements of the crime charged (all guilty pleas are confessions) b. b. United States v. Udeagu 4. Plea Bargains. 2. C. a plea of guilty which was later withdrawn. any statement made in the course of pleas discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea later withdrawn. Rule 410 Analysis/Basics 1. any statement made in course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the above pleas. & Related Statements (Rule 410) i. negating a contention of undue delay. 2. d. a plea of nolo contender. Confession a. I will pay your doctor’s bills—not admissible.viii. hospital. BUT such statements (1 through 4) ARE admissible a. or similar expenses occasioned by an injury is NOT admissible to prove liability for the injury. 3. PAYMENT OF MEDICAL & SIMILAR EXPENSES (RULE 409)—evidence of furnishing or offering or promising to pay medical. NO dispute need to have arisen. evidence of the following is NOT in any civil or criminal proceeding. 3. OR in a criminal proceeding for perjury or false statement IF the statement was made by the Δ AND under oath AND on the record AND in the presence of counsel. OR 4. Remember. BUT statements admitting fault ARE admissible. NO impeachment use of the statements. OR obstruction of justice). plea = conviction. in any proceeding wherein another statement made in the course of the same plea or plea discussion has been introduced and the statement ought in fairness be considered w/ it (let the cat out of the bag. i. Applies in ALL subsequent cases (criminal AND civil) (vs. Plea vs. admissible against the Δ who made the plea or was a participant in the plea discussions: 1. Plea Discussions. 2. R 408 Compromise Rule which does not make clear if applies in criminal). ii. confession = talks only about facts (not all confessions are pleas) 18 . Rule 410: Except as otherwise provided in this rule.) ix.
Impeachment use = attempt to discredit witness’ testimony so witness looks unworthy of belief (liar). 2. “If you lie to the US. CHARACTER EVIDENCE BASICS i. (if contested) b. Impeachment use of character evidence 1. US (1995)— upheld gov’t agreement w/ Δ that said.” Bernier v. Some courts predicate on whether officers/persons have ability to bargain. (NOTHING to do w/ issues in the case) 19 . Substantive character evidence vs. CHARACTER EVIDENCE A. Dissent (2) iv. or control. IS admissible (this rule does NOT require the exclusion of evidence of insurance against liability) when offered for another purpose. DEA officer). Board of County of Road Commissioners. such as a. Rationale—to prevent liability insurance from making jury not decide case (who cares? insurance will pay). 4. V. or bias or prejudice of a witness. (if contested) d. Concurrence (3)—only allow statements in for impeachment AND not in prosecutor’s case-in-chief. Δ CAN waive plea bargain protection. we will stop talking to you AND everything you said is fair game for impeachment purposes. Rejected idea that waiver will frustrate bargaining. showing Δ in murder case is aggressive. Substantive = trait of a person’s character is relevant to an issue of the crime. BUT most courts say others don’t count (DEA. is NOT admissible upon the issue of whether a. proof of agency.” 1. the person acted negligently or otherwise wrongfully. Charter v. Rule 411—Evidence that a person was or was not insured against liability 1. Mezzanatto. Liability Insurance (Rule 411) i. Found imbalance of power BUT not coercion. United States v. Burch—Δ aggress to cooperate & waives Rule 410 protection in plea agreement AND colloquy w/ trial judge prior to entering plea. iii.” then judge will let in liability insurance coverage. (if contested) c. For example. Reserves judgment on the use of liability insurance coverage to come into evidence in a negligence action to prove that City can pay damages where city has put forth a “lack of funds” defense for not keeping roads in “reasonable repair. To prove bias may come in if an expert witness in a medical malpractice action was employed by the liability coverer. United States v. 2. a. officers) which makes the rule less powerful (Salzburg). showing that a witness in a murder case has several perjury convictions (crimes of untruthfulness). FBI. Slippery slope? iv.5. iii. *very fact specific*--if Δ-city focuses too much on “lack of funds. For example. 2. Extends Mezzanatto waiver of Rule 410 protection to prosecution’s case-in-chief. ii. ownership. 1. e. Chleborad. 3. Split on whether exclusion applies to ONLY the prosecuting attorney or the prosecuting attorney’s minions (for example.
or by the prosecution to rebut the same. iii. Steal when hungry. and *specific instances of conduct. Rationale of 404(a) 1.ii. Character “in issue” = when person’s character is a material fact under substantive law. in negligent entrustment cases (Van Houten-Maynard v. Child custody. 3. CHARACTER EVIDENCE GENERALLY (RULE 404(A)) i. AND jury may not care about bad person who is Δ or victim—barrier to justice. Negligent Hiring or Supervision. d. Rule addressed the propensity to act generally (Rule 608 will deal w/ the propensity to tell the truth specifically). f. Fraudulent Misrepresentation (example. misrepresentation as to qualifications as stock broker—but not simple fraud). Character “in issue” vs. Character evidence is unreliable—people act situationally. For example. 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 EXCEPT: 1. 3. AND may be proven by reputation. and Entrapment (I am not the kind of person to do this normally—to show entrapped. etc. e. (3) Character of witness.) 20 .” (also negligent entrustment) (allowed) 2. showing the aggressive victim attacked first. then admissible. in a libel/defamation case when truthfulness is a defense. or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under 404(a)(2). Circumstantial use of character evidence = introduce evidence to show Δ/person acted in conformance w/ her character generally. For example. evidence of the same trait of character of the accused offered by the prosecution. (2) Character of alleged victim—evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused. defamation (Schafer v. b. lie when serves them. ii. See Rules 607. & 609. 608. For example. What is Admissible? 1. Circumstantial use of character evidence 1. (generally not allowed) B. (1) Character of accused—evidence of a pertinent trait of character offered by an accused.* (*specific conduct only okay when character “in issue”* a. 2. If character evidence is “in issue” (element of crime or defense). then character is “in issue. ANR Pipeline Co. 2. a. Time—sues for defamation BUT has lots of prior convictions—must establish reputation defaming). c. or by the prosecution to rebut the same.—negligent to let driver drive b/c of driver’s character so must show driver’s character). 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.
6. In quasi-criminal-civil cases (assault/sexual battery for example) MOST courts do not allow propensity/circumstantial character evidence BUT some do. Defense = necessity to save brother. United States v. In a criminal case. proof only by reputation and opinion. the prosecution may then offer rebuttal evidence of the peacefulness of the victim. Ginter v. Northwestern Mutual Life Ins. if the Δ offers evidence that the deceased was the first aggressor. cutting type.) a. b. proof may be made by only reputation or opinion.2. 2001 Amendment expanded scope to rebut on Δ as well as victim’s character on specific trait. the prosecution may NOT offer character evidence concerning the Δ in its case-in-chief. b. victim threatened Δs brother in hallway. alias’ prejudicial. propensity/circumstantial use of character evidence inadmissible in civil cases (“the accused” interpreted to mean criminal). victim’s violent character admissible ONLY as reputation or opinion evidence B/C Δ said victim threatened. Williams—remand for new trial where “Fast Eddie” got in prosecution’s case-in-chief where there was little other evidence. Pertinent character traits under 404(a)(1) & (2) are often good moral character and law abidingness BUT NOT often truthfulness or honesty (exception for bribery & receiving stolen goods). Delpit 4. (NO specific acts. Prosecution may not anticipate character evidence (or sneak in back door w/ “What is your alias?” “Fast Eddie” for car theft trial where nickname can be relevant to prove ID) Often. character evidence of a pertinent trait of a VICTIM is admissible if first offered by Δ. State v. ?? b. Keiser—Δ shot victim. United States v. a. Language of the rule precludes the use of propensity character evidence in civil cases. In criminal cases. In a homicide case. Δ has the right to introduce character evidence BUT opens the door for the prosecution to rebut and cross-examine defense witness w/ regard to character. 5. Co. 7. **Both defense and prosecution can only use reputation or opinion (and NOT specific acts) when using proper pertinent character evidence. ?? So anytime claim self defense open self up to character attack AND open victim up for character +. a. a. Michelson. proof made only by reputation and opinion. Should have been 21 . Prosecution may rebut character evidence of defense AND may cross defense witness. Generally. i. United States v. In a criminal case. i.” then prosecutor asks witness whether they ever saw victim quarrel or engage in a physical violence at a bar. Hicks—defense opening statement calls victim “obnoxious. 3. a. Nickname may get in for ID where it is the only way jury can make sense of undercover tapes. after which the state may offer rebuttal evidence as to the VICTIM as well as the Δ on the SAME trait.
2. claim. On cross. when character is an essential element of a charge. opinion. inquiry is allowable into relevant specific instances of conduct. Michelson. **remember not admitted to prove substance only admitted to prove how well know Δ. Dahlin e. 8.” Prosecutor ask “did you know about finding of substantial neglect?” and “…supervision of Δ and spouse by child protective services?” i. In a criminal case. Time period of character evidence controlled by scope of DEFENSE—if defense (who controls scope of the testimony) takes the character evidence back 20 years. or defense. then the cross can go back 20 years. U. Any character witness may be cross-examined concerning that witness’s knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed.excluded b/c specific acts—not reputation or opinion BUT waived b/c did not object. Overturned conviction for weapons charges where character witness testified to “honest and law abidingness” and then prosecutor asked on cross about child support and sexual harassment charges (civil). 11. (Guilt-assuming hypotheticals are a no-no. the cross examiner must have good faith proof that the acts occurred a. Type of Evidence Admissible 1. AND cannot ask has your opinion of the Δ changed since charged w/ this crime B/C against the presumption of innocence. 12. Rule 405 (a) Reputation or opinion—In all cases in which character evidence IS admissible proof may be made by testimony as to reputation or in the form of opinion. Witness treated as a character witness easily—door may if ask about Δs reliability or responsibility or even family devotness. AND specific instances of conduct. Reputation & Rumors—examiner must have a good faith basis to ask about rumors w/ regard to reputation. may ALSO be 22 . Problem w/ character evidence—narrower frame question (good father) sounds like specific acts but broader (law abidingness) opens the door too wide. not considered propensity/character evidence. or defense.S. okay in United States v. Note: Training or ability or experience IS admissible always. 13. Did you know that the Δ was convicted 3 times last year for beating his wife? (Have you heard…if it is only a rumor) 10. proof. 9.) d. proof may be made by reputation. Rule 405 (b) Specific instances of conduct—In cases in which character evidence IS AN essential element of a charge. Holt b. v.** c. character witness testifies to law abidingness or good moral character. United States v. For example. BUT the questions must RELATE to the character trait in question. Example. Bruguier—Δ charged w/ sexual abuse of daughter and witness say “good father. iv.
wrongs. f. c. or during trial if the court excuses pretrial notice on good cause shown. 5. of the general nature of any such evidence it intends to produce at trial. W/ notice requirement (for criminal cases ONLY)—provided that upon request by the accused. 4 part test (most courts) for assessing bad acts evidence under 403 (US v. Notice requirement— 23 . 404(b) can be used in civil cases. e. b. intent. the trial court must make a 403 determination that the probative value of the bad act for the proper purpose is substantially outweighed by its unfair prejudice (if used as character evidence). OTHER CRIMES OR ACTS (RULE 404(B)) i. a. ii. Specific Act evidence has a greater probative value than reputation or opinion. such as… a. b. identity. etc. Exceptions. proof of motive. the prosecution in a criminal case shall provide reasonable notice in advance of trial. 2. ii. d. plan. Rackstraw): i. opportunity. preparation. Basic Principles of 404(b) (Specific Act Character Rule) 1. Other Crimes (Rule 404 (b))—evidence of other crimes. i.) versus likelihood it will be used as propensity. the trial court shall (upon request) instruct the jury that the evidence of similar acts is to be considered ONLY for the purpose admitted (limiting jury instruction). (MAY be admissible) It may however. g. to prove the character of a person in order to show action in conformity therewith. Most litigated rule next to 403. iv. knowledge. 4. OR absence of mistake or accident.made of specific instances of that person’s conduct. Character Evidence Not Admissible to Prove Conduct. (dynamite evidence b/c of misuse) 3. BUT then 403 applies—probative value of non-propensity purpose (plan. is NOT admissible… a. 2. opportunity. Only evidence offered for a NON-PROPENSITY PURPOSE admissible. be admissible for other purposes. or acts 1. h. evidence must be relevant for that purpose. evidence MUST be offered for a proper (not-for-character) purpose. (will ALWAYS make a 403 objection also). (**when character is “in issue”) C. iii.
v. v. United States v. not to smear Drs character 2. only criminal. U. Varoudakis a.—okay to let in glass drug use paraphernalia in Δs room when found drugs in mailbox b/c goes to (increases likelihood he controlled) control over drugs in mailbox.) 1. iv. Δs affiliation w/ prison gang properly admitted as MOTIVE for murder of stranger b/c needed to initiate into prison gang. Bad acts (shooting in air to help captors escape)—highly probative of absence of duress (innocent intent) which is the main a defense. d. Plan & Identity Exception 1. okay to let in sexual activity B/C showed motive of WHY doctor would improperly prescribe drugs. the gov’t needs to show Δ was not acting under duress so CAN ADMIT Δs involvement in a LATER robbery b/c it shows Δ willingly engaged in other criminal activity w/ persons of the same group. 4. robbed bank Tuesday. Error to admit arson of car 16 months earlier to prove arson of restaurant when financially down on luck NOT admissible in case for arson of restaurant. more likely to be admitted. Santiago. lack of good faith w/ legitimate medical purposes. When act tied in w/ motive. ALL need to show motive is INSURANCE—so not that probative. Not connected enough to show motive—really saying had the propensity to commit arson when needs money. Δ must request notice. Intent or Knowledge Exception 1. Carroll 2. b. For example.S. 24 . then act is admissible. United States v. e. Hearst—Δ used defense of duress (kidnapped heiress). and paid for drugs Wednesday. Muniz.” United States v. United States v. United States v. judge may delay notice until trial.a. iii. c. a. Motive Exception (Ask how specifically does the bad act tie up w/ motive—more specific and particular the connection. if tie to a particular drug transaction (and not just drug use generally)—ordered drugs Monday. only for government. Purpose = motive. a. (Generally) Drug use as MOTIVE for theft is suspect—although particular ties between drug use and events can exist. a. To be probative enough common plan evidence to show identity must be particular/special or connected in some way. Common plan can be used to show identity of Δ BUT use of stolen car and uses of nylon stockings on face w/ using a gun and vaulting over the bank counter IS NOT enough of a common plan to show identity to justify the use of specific act evidence. BUT it does not have to elevate to the level of a “signature crime. b. Potter—Δ accused of trading oral sex for prescribing. only general notice req’d. 3.
US v.” United States v. from 1945 to 1969 nine children to Δ had access suffered same death (crib death). Woods—Δ charged w/ murder of 8 month old foster son. To show intent or knowledge. defense is mistaken identity and willing to stipulate whoever DID possess the drugs intended to distribute. Prior drug convictions admissible to show KNOWLEDGE where Δs defense was “I didn’t know there was drugs in the car. Martinez a. Δ claimed sold goods on commission (pawn shop). Huddleston v. big shipment each time or small shipment each time to show knowledge). 4. Crowder—Δ arrested for selling crack. Gave Old Chief a very narrow reading. Unlikely Δ can stipulate to the INTENT (Woods—willing to concede whoever had the drugs had intent to distribute) element of the crime as opposed to the STATUS (Old Chief—willing to concede that Δ had a felony conviction making him status as felon and eligible for conviction under a statute barring felons from having weapons) element. Δ charged w/ selling stolen tapes. Supreme finds 404(b) a relevance rule—judge’s role to assess by a preponderance (if a reasonable jury could find that the TVs were stolen b/c of low price. 3. US v. the prior bad act/conviction must be 1) not too remote in time and 2) similar in character (example—drugs. then killed boss). United States v. Mejia-Uribe —found error where admitted previous drug convictions 15 years old and for on time single sale where current case involved large scale ongoing operation. b.b. United States. a. admissible even previous deaths not charged as crimes. Other Not-For-Character Exceptions For Previous Bad Acts 1. Wynn—connection between crime and threats (not threats against wife. Δ objected—not enough evidence selling stolen TVS (only evidence bought TVS for $28. Rule 404(b) Standard of Proof and Role of Judge a. vi. a. BUT not admissible to prove common plan (in power point) (Why?) 2. If say “I didn’t know what was going on” when charged w/ a crime— better not have committed a similar crime in the past b/c if close enough will be admissible to show KNOWLEDGE. Δs prior threats and acts of violence against his wife are admissible to show intent to have wife killed. Dissent—really being offered to show propensity (to deal drugs) and that majority reads first sentence of 404(b) out of context—requires the gov’t to ADMIT it is using prior conviction for an incorrect purpose to be excluded (which the gov’t will never do). 2. US v. US 1988. I was just driving someone to the airport. had previous arrest for drug dealing a few blocks away. Timing (after crime) does not disqualify evidence. Issue: What is the 25 . low price). Not required to stipulate to avoid admission of prior bad act evidence when used to show intent and knowledge. Multiple previous “mysterious” deaths admissible to show absence of mistake (b/c % wise this does not happen that often so something is up) and signature. then let in). 3. c.
a. habit = high % of (# of times act done/ # of total possible times). 4. Virginia Chemicals—auto mechanic’s use of immersion coil to heat refrigerant can is to level of habit and admissible. Judge determines probative & prejudicial effect AND utility of limiting instruction. etc.). Means NO notice requirement AND not exception explanation (theory of intent. and particularity. Robinson—a mere arrest w/out any showing of the underlying act or circumstances was not probative of intent. Dowling v. United States. A deliberate and repetitive practices on a regular basis is habit. knowledge. Perrin v. b. Habit: Routine Practice (Rule 406)—evidence of the habit of a person or of the routine practice of an organization. Arrest is generally NOT sufficient to prove act. ii. motive. (Minority) Δ had 4 prior incidents of violence in jail and responding to police officers.standard of proof for 404(b)—how much do you have to prove the bad acts occurred? i. US (1990) c. United States v. For example. Test is whether the acts inextricably intertwined w/ basic elements of the crime charged. c. whether corroborated or not and regardless of the presence of eyewitnesses. b. D. 3. then acts ARE not bad acts under 404(b). Burden of proving habit is on proponent—who wants habit IN. Character = general description of one’s disposition. Organizational habit—need routinized aspects of organizational activity in a structured organization. beyond a reasonable doubt). acts in a conspiracy case where gov’t proffers evidence of an act committed during the course and in furtherance of the conspiracy is inextricably intertwined. If INEXTRICABLY INTERTWINED w/ crime. Anderson. b. c. d. d. Habit = specificity and regularity. Judge uses 104(b)—not fact-finder (reasonable juror standard). Requires adequate sample. Halloran v. Some states require trial judge to find clear and convincing evidence of other acts. uniformity in response. Court finds habit to react violently on repeated occasions toward authority figures—admits prior acts (habit of acting violently toward police/authority). or any other permissible purpose. Distinguishing Character & Habit 1. Acts Inextricably Intertwined w/ Crime Charged a. 2. Acquittal DOES NOT preclude use of previous bad acts b/c the standard of proof is different (preponderance vs. 26 . ii. HABIT (RULE 406) i. is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit or routine practice.
(d) (Definition of Sexual Assault) For purposes of this rule and Rule 415. An offense of sexual assault means a crime under Federal law or the law of a State (as defined in section 513 of title 18. also difficulty to prove sex crimes. Rationale—believe sexual criminals & pedophiles much more likely to be recidivists. without consent. 3. Unclear whether 413 & 415 permit 403 to exclude sex assault evidence that is unduly prejudicial (but 414 IS subject to 403 balancing—US v. 3. (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)B(4). RAPE SHIELD (ONLY TESTED ON R. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION (RULE 901) i. (a) General Provision—the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (4) deriving sexual pleasure or gratification from the infliction of death. United States Code. Rationale—habit thought more reliable than character evidence. (b) (Notice & disclosure) In a case in which the Government intends to offer evidence under this rule. at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. Evidence of Similar Crimes in Sexual Assault Cases (Rule 413) 1. and NOT by way of limitation. (2) contact. including statements of witnesses or a summary of the substance of any testimony that is expected to be offered. FOUNDATIONAL REQUIREMENTS: AUTHENTICATION (RULE 901) A. b. 413. More liberal admissibility of Δs prior sexual offenses. Scope of the Rules Permitting Use of the Δs Prior Sex Offenses 1. between the genitals or anus of the defendant and any part of another person’s body. c. bodily injury. the attorney for the Government shall disclose the evidence to the defendant. ii. E. 2. or e. (1) Testimony of witness w/ knowledge—testimony that a mater is what it is claimed to be. (b) Illustrations—by way of illustration only. d. 1 QUESTION) i. (a) IN A CRIMINAL CASE in which the defendant is accused of an offense of sexual assault. 2. evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible.iii. and may be considered for its bearing on ANY MATTER to which it is relevant. ii. or physical pain on another person. LeMay (9th)) iii. 27 . NO limiting instruction is required. VI. (3) contact. the following are examples of authentication conformity w/ the requirements of this rule: 1. between any part of the defendant’s body or an object and the genitals or anus of another person. (1) any conduct proscribed by chapter 109A of title 18. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. without consent. United States Code) that involved a. 4.
and Recordings 1. B. Ohio Oil Co. a. taken in conjunction w/ circumstances.—possession of cocaine w/ intent to distribute overturned. iii. v. map. 5. Also.S. In usual drug case. or other distinctive characteristics. wide discretion to trial judge. Video Tapes. etc. NOT admissibility. internal patterns. Ohio Oil Co. Basic Foundation Questions a. Courts DO NOT assume that evidence is what the proponent claims. important chain of custody is from original seizure to analysis of substance—any substantial gap is fatal (b/c key evidence). Lockhart v. Chain of Custody—one form of authentication (that object passed through many hands before getting to court is actually the object claimed to be and wasn’t swapped out by a fake). 1. Photographs. Strictness of chain of custody may depend on importance of evidence. Judge is not fact-finder—but screener like 104(b). a. No chain of custody is required for a UNIQUE ITEM.2. Lots of ways to authenticate evidence. 4. Definition of Demonstrative Evidence 1. Also. therefore proponent MUST demonstrate what evidence IS and how it RELATES to the case. contents. 2. arrested and found bag w/ baggies looking like crack. REAL EVIDENCE (REAL STUFF—WALLET . ii. 2. McCotter —gov’t should have introduced evidence on chain of custody but since victim ID’d wallet and officer identified and sufficiently unique and did not appear altered okay. Tampering w/ evidence (moving) in violation of local rules will render evidence inadmisable. US v. DEMONSTRATIVE EVIDENCE i. Bail receipt w/ Edwards name found by prosecutor on first day of trial. but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness (a model. X-ray. U. conviction reversed b/c receipt should not have been admitted b/c prosecutor tampered w/ the bag by removing it from the courtroom in violation of local rules. C. A gap AFTER drug testing less fatal. Demonstrative evidence has no probative value in itself.) i. emphasis on gov’t need to keep accurate record of all evidence obtained and where it is at all times. police failed to inventory appears belonging to Edwards found in car. ii. girlfriend told police Edward left w/ black bag but refused to testify. Smith v. Demonstrative evidence must be 1) relevant and 2) the use of the object must actually be explanatory. Miller 3.) Smith v. Can you identify it? What is it? (Plus for photos add…) Is it a fair (or true) and accurate depiction of _______? 28 . BAG. (4) Distinctive characteristics and the like—appearance. BASICS OF AUTHENTICATION i. I Show you what has been marked Δs exhibit A. Most courts hold that break in chain of custody goes to weight. D. ETC. substance. Edwards.
Some say same is true for videos & tapes—enough for witness to say “This is what I saw. 4.2. no impermissible inducement. i. Brown v. no changes. May have to prove (US v. a. Barnes—pictures taken 1 year after accident showing the intersection in question w/ an obscured view of the stop sign in question are admissible to show witness’ view of stop sign was obstructed. 2. 2. BUT greater foundation for tape recordings may be needed. 6. based upon familiarity not acquired for purposes of litigation.). who ordered X-rays can testify to authenticate where saw X-rays after and technician not available. additions or deletions have been made. King v. No live witness needed. Rule 901(b)(2): Non-expert opinion as to the genuineness of handwriting. 7. 1. recordings preserved in the manner shown to court. Pictures must only show what witness says saw. technician. or circumstances. Williams—Dr. State v. Does not matter when photos taken or who took them or why. etc. 5. operator was competent to operate machine. X-Rays 1. Rule 901(9) Process or system—evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. 5. 3. Foundation usually laid by doctor. 3. Conflicts over whether or not fair & accurate depiction go to credibility NOT admissibility. HANDWRITING i. 3.” b. recording devise was capable of recording. injury. E. X-rays are demonstrative evidence. recording is correct rendition of occurrence. The witness who authenticates a photo DOES NOT need to have an independent recollection of the scene—enough knew they are were the pictures taken on the night of the crime/accident/whatever and in your possession. speakers are identified. Surveillance films—foundation may be laid as to the process (Rule 901(9) below) and chain of custody. Taylor. Does the limitation bind the trial judge (considering 901(b) says illustrations not limitations)? 29 . and other additional foundational factors to show tape accurate depiction of what is heard in court. 4. ii. Madison 6. Must fairly and accurately depict the thing (collision. US v. 7. iii. Branch): 1.
a. US v.) 30 . VOICE IDENTIFICATION i. In Re Diggins’ Estate—if seen enough that witness can form an opinion to testify. if (A) in the case of a person. Ranta 1. Familiarity must PRECEDE litigation. US v. by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business. Watson—familiarity w/ voice may occur before or after recordings. Agent may hear voice AFTER tape is made. taken in conjunction w/ circumstances. iii. the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. Pitts iv. Two meetings sufficient. then that is enough. US v. Trier of fact must know what inference a witness drew to determine it was the person in Q to decide whether the inference is persuasive. Reason for concern—if did not see how did know who was speaking? a. by opinion based upon hearing the voice at any time under circumstances connecting it to the alleged speaker. Saulter b. US v. Can also show info. 2. McMahon—where much evidence to show Δ author of incriminating note (observed passing it. 2. including self-identification. (b)(4) Distinctive characteristics and the like—appearance. 1. Voice Identification Basics 1. a. Circumstantial evidence or contextual evidence may produce authentication. Circumstantial evidence of handwriting okay. Any familiarity w/ Voice will suffice a. substance. circumstances. US v. 3. needed 3. in note ONLY accessible to author. Only need to see person write signature once to testify—goes to weight not admissibility. repeated Δs previous conversation. not expert testimony. (b)(5) Voice identifications—Identification of a voice. familiarity. Familiarity is enough BUT limitation on timing. or other distinctive characteristics. note used “I” suggesting passer was author) then circumstantial evidence enough to authenticate note handwriting. Attorney can give sample of handwriting (before legislation) for jury to compare. show the person answering to be the one called. US v. (b)(6) Telephone Conversations—telephone conversations. whether heard firsthand or through mechanical or electronic transmission or recording. internal patterns. Pastore v. or (B) in the case of a business. US v.ii. Mere assertion of identity is not sufficient evidence of authentication ii. Parker—context of the conversation can identify the speaker (IDed as husband of caller by calling wife calling her his “old lady” in conversation. Related Rule 401(b) Provisions—authentication by illustration… 1. contents. F. BUT the jury can compare handwriting even where expert is not conclusive (but attorney must show sample genuine).
would subject maker to criminal penalty under laws of the country where the declaration is signed. if falsely made. (11) Certified domestic records of regularly conducted activity—the original or duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) w/ a written declaration certifying the record a. AND (C) was made by the regularly conducted activity AS REGULAR PRACTICE. etc. statement. certified as correct by the custodian or other person authorized to make the certification. Rule 902: Self-Authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ respect to the following: a. acknowledge/notarized documents. (A) was made AT OR NEAR THE TIME of the occurrence of the matters set forth by. (4) Certified copies of public records—a copy of an official record or record or entry therein. 1. 31 .4. & related documents. in any form. ii. or data compilation. G. Affirmative presumption that the person answering phone can transact business for company. a person w/ knowledge of those matters. Only difference—must be signed in a manner that. Barrickman v. National Utilities & Rule 901(b)(6) 5. (12) Certified foreign records of regularly conducted activity—same deal but foreign records. is from the public office where items of this nature are kept. PUBLIC RECORDS (901 & 902) i. Rule 902—Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ respect to the following 1. Note—still may be hearsay or other evidence objection. H. periodicals. Rule 901(b)(7): Illustrations for authentication okay. including data compilations in any form. or from information transmitted by. 2.. 2. newspapers. **Requires notice and make record available for inspection. commercial paper. c. (B) was KEPT by the regularly conducted activity. Calls to a business and call was related to that business are generally admissible (no matter who answers) plus self identification. Rule Basis 1. report. BUSINESS RECORDS (RULE 902(11) & (12) i. or of a document authorized by law to be recorded or filed and actually recorded or flied in a public office. trade inscriptions (product labels). (7) Public records or reports—evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office. Documents that are self-authenticating (no testimony req’d)—official publications (statutes & regulations). b. by certificate complying w/ the Rules or any Act of Congress.. a. d. or a purported public record.
recording. or photograph if admissible IF (exceptions to original req’d): i. shown to reflect the data accurately. set down by handwriting. or photograph. or their equivalent. any printout or other output readable by sight. (1) Writings and recordings—consist of letters. (2) OR in the circumstances it would be unfair to admit the duplicate in lieu of the original. or other form of data compilation. photographing. that party was put on notice. 32 . (2) Originals not obtainable—no original can be obtained by any available judicial process or procedure. (4) Collateral matters—writing. printing. (1) a genuine question is raised as to the authenticity of the original. d. OR iii. typewriting. including enlargements and miniatures. ii. recording. FEDERAL RULES OF EVIDENCE 10001 TO 1008 a. magnetic impulse. OR iv. mechanical or electronic recording. (3) Originals of a writing or recording—is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. and that party does not produce the original at the hearing. RULE 903: SUBSCRIBING WITNESS (TESTIMONY UNNECESSARY)—The testimony of a subscribing witness is not necessary to authenticate a writing unless req’d by the laws of jurisdiction whose governs. and other evidence of the contents of a writing. OR ii. i. (4) Duplicate—is a counterpart produced by the same impression as the original. (3) Original in possession of opponent—at time when an original was under the control of the party against whom offered. unless the proponent lost or destroyed them in bad faith. iv. few federal cases—mostly in will cases (where substantive state law applies) VII. or by mechanical or electronic rerecording. video tapes. or from the same matrix. X-ray films.I. or by means of photography. recording. Rule 1002 Requirement of Original—to prove the content of the writing. recording. or by other equivalent techniques which accurately reproduces the original. b. photo not related to a controlling issue. photostating. (2) Photographs—include still photographs. or numbers. Rule 1003 Admissibility of Duplicates—a duplicate is admissible to the same extent as an original UNLESS i. iii. BEST EVIDENCE RULE (“ORIGINAL DOCUMENT RULE”) A. that the contents would be subject to proof at the hearing. Rule 1001 Definitions i. An original of a photograph includes the negative or any print there from. ii. If data are stored in a computer or similar device. and motion pictures. is an original. or photograph is required. (1) Originals lost or destroyed—all originals are lots or have been destroyed. c. Rule 1004 Admissibility of Other Evidence of Contents—the original is NOT required. EXCEPT as otherwise provided by Acts of Congress. the ORIGINAL writing. or by chemical reproduction. words. by the pleadings or otherwise.
recordings. or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission. General Rules & Summary i. Note—whether a document is essential to proving something is a question of substantive law rather than evidence. ii. iv. oral testimony is admitted (would not have been admitted had K been available). shall be made available for examination or copying. Judge cannot usurp jury’s role to decide merits 1. or both. & photos ONLY. by other parties at reasonable time and place. In real estate dispute. or duplicates. summary. if otherwise admissible. h. recordings. recordings. including data compilations in any form. when an issue is raised (a) whether the asserted writing ever existed. or photograph produced at the trial is the original. BUT where all 3 originals were destroyed and no bad faith. or (c) whether other evidence of contents correctly reflects the contents. b. may be proved by copy. ii. g. iii. Rule 1008 Functions of Court and Jury—When the admissibility of other evidence of contents of writings. What other evidence is credible? ii. However. Ohio Decorative Products. deed is the best evidence. Rule 1006 Summaries—the contents of voluminous writings. Rule 1007 Testimony or Written Admission of Party—contents of writings. then other evidence of the contents may be given. Rationale—anti-fraud. certified as correct in accordance with rule 902 OR testified to be correct by a witness who has compared it with the original. WITHOUT accounting for the non-production of the original. All other questions are for the judge under Rule 104(a) b. the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. f.e. the issue is for the trier of fact to determine as in the case of other issues of fact. Proving the Contents of a Writing or Recording i. recordings. The originals. Rule 1005 Public Records—the contents of an official record. No general rule REQUIRES best evidence—but adversarial litigation does. Applies to writings. Was there ever a writing? 2. or of a document authorized to be recorded or filed and actually recorded or filed. it is the best evidence in a K dispute. or calculation. 33 . If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence. The court may order that they be produced in court. If there is a written contract. 1. recording. or photographs under these rules depends upon the fulfillment of a condition of fact. i. Which is the original? (if two) 3. or photographs which cannot conveniently be examined in court may be presented in the form of a chart. Key—to prove the content thereof. DeMarco v. efficiency rule. or (b) whether another writing.
OR collateral matter? 1. b. typewriting. AND witnesses w/ personal knowledge generally may testify even though there is also a document available. original lost or destroyed (good faith)? ii. The original is NOT required simply b/c a document has been created. b. nothing relating to drawings (no testimony) is admissible. but truly independent). If no original OR duplicate. or other form of date compilation. vi. since Π has no originals or copies AND court finds bad faith. If neither & duplicate admitted. rule satisfied.iii. 2. c. 1. magnetic impulse. Lucasfilm. Best Evidence Analysis i. numbers or their equivalent set in handwriting. iv. Testimony to salary received is okay—books not required. If one of those is NOT found. See Rule 1001—consist of letters. Rule 1004: Other evidence of contents is admissible IF i. Rule 1003: A duplicate is admissible to the same extent as the original UNLESS i. If one of those is found. 2.— original drawings are required to prove infringement. If original. mechanical or electronic records. BUT need to ask whether the CONTENTS of the document are disputed. iv. a. c. Dispute over meaning of judgment or settlement. best evidence satisfied. printing. a party may use a document to prove a fact OR prove that fact through testimony that is INDEPENDENT of the document (not I saw the document and it said. best evidence is satisfied and other evidence comes in. Seiler v. 1. Testimony to being married is okay—certificate not required. Is the piece of evidence offered to prove the contents thereof? iii. Writing Defined i. d. genuine question is raised as to the authenticity OR ii. words. then best evidence rule applies. c. OR offer both the document AND the testimony. photocopying. photographing. photo-stating. other evidence DOES NOT come in. Does Proponent offer either the original or a duplicate? a. OR original not obtainable? iii. actual judgment or settlement best evidence. Is the piece of evidence offered a writing or recording? ii. Generally. ii. 34 . OR original in possession of opponent? iv. Drawings are writings and subject to Best Evidence Rule. v. If yes to BOTH. in the circumstances it would be unfair to admit the duplicate in lieu of the original. Testimony to receiving money okay—receipt not required. Will is best evidence of will (state law may require). If duplicate. Applying Best Evidence Rule 1.
Howard ii. written on it as a chattel and not a writing (NOT subjection to the Best Evidence Rule). things in the world w/ letters on them are all chattels and generally do not count as writings under the best evidence rule. Some things that may be a chattel & a writing up to trial judge’s discretion to treat evidence as one or the other. BUT the tape. 3. 1. There can be more than one original writing—parties intent controls. Pictures. 1. AND only one piece of evidence in a substantial case against Δ. United States v.F. Thummel e. Agent may testify to his recollection of conversations whether or not tape that exists is audible. 1. & X-Rays i. AND terms of writing were not central to the case against Δ—shirt was only collateral evidence of the crime. For example. transcript or record. City Laborers Pension Fund v. United States v. 1. iv. Motion pictures are within the ambit of “photograph” in Rule 1001(2).U. and an original of a motion picture includes the negative or any print thereof. the best evidence does NOT apply to photos b/c they are used for demonstrative purposes—to show what saw or a scene that is familiar and adopts picture as testimony or uses picture to illustrate testimony. transcript or record may be used by opponent to attack recollection. Greater Kan. iii. g.) films or videotapes created to show HOW an event occurred— demonstrative videos—not offered as evidence of the actual event NOT subject to the best evidence rule. but all (of the above) cuts of the film are considered originals. a carbon copy is also an original. BUT where no bad faith and no original copies testimony is admissible regarding K. Tape Recordings i. (Generally). US v. Rationale—too burdensome to produce actual thing. DeMarco iv. Generally NOT writings w/in the rule. Signs. Rationale—since writing short little danger of witness not recalling writing. iii. f. (Generally. Levine—film shown to prove the contents (porn allegations) of subject to the best evidence rule. ii. 2. Chattels (not subject to Best Evidence Rule) i. Witness w/ personal knowledge of a tape recording may testify to it notwithstanding the fact that there is a tape. ii. license plates.iii. Films. BUT if used to prove the contents thereof then best evidence rule applies. Not error to treat shirt w/ D. Duffy. the work print or cut negative. US v. Fagan—tape recording not required b/c testimony regarding recollection of conversation NOT content of tape. (? Confused—can someone clear up this distinction for me?) 35 . as well as the answer print and release prints of motion pictures (all) = originals.
Genuine issue when duplicate has key part missing or incomplete. v. a. 2. Genuine issue w/ checks where problem w/ matching fronts and backs of the checks. Rule 1003—tries to do away w/ technical best evidence objections (rationale—technology). v. Burden on party who wants the evidence IN to prove one of these factors. original in possession of opponent. Rule 1004 (much discretion to trial judge to determine if these have been filled) a. Duplicates NOT okay when genuine issue of authenticity is raised.iv. (Generally. Neville Construction Co. 2. 1. or collateral matter. Duplicates & Secondary Evidence v. Cook Paint and Varnish 3. Duplicates 1. US—most critical part of deep not completely reproduced. Duplicates need not be perfect. Where brochure destroyed in fire (caused by allegedly defective product). Pelullo 36 . 2. And as a mater of tactics. Summaries of writings or records ARE ONLY admissible IF the UNDERLYING WRITINGS or recordings would be admissible. Burden of showing genuine issue of authenticity is on the objecting party (who wants the duplicate to stay OUT). Rule 703 allows an expert to have an opinion based on matters NOT in evidence (present rule must be read as limited accordingly). original not obtainable. vi. no preferred degree of secondary evidence BUT judge may order search for original. c. North American Reporting— prosecutor introduced chart showing over-billing (from time sheets). US v. Commissioner b. witness may testify as to contents. Secondary (Other) Evidence 1. United States v. However. US v. Balzano d. Courts more concerned about altering of recordings—more foundation may be required for a duplicate recording. a. Amoco Prod. i. c. and these reports NOT excluded by the best evidence rule. d. If no duplicate or original. Hospital records which may be admitted as business records commonly contain reports interpreting x-rays by a radiologist (expert). Sinclair 3. Δ attempted to introduce chart proporting to summarize instances where Δ under billed hours (own word & memory). Rule 1003 (1). can bring in secondary evidence if prove originals destroyed/lost (in good faith). Summaries (Rule 1006) a. Generally. Chart based on out of court statements inadmissible. US v. Ruberto v. Duplicates are readily admissible. Δs chart inadmissible.) X-Rays ARE subject to the best evidence rule. party will try to offer most reliable form of secondary evidence.
Hoffner—since none of the witnesses were present when any of the patients received improper prescriptions their opinions were as to Δ’s intent were NOT based on any rational perceptions or observations. Gibson—witness not allowed to testify what “could have seen” if had binoculars if didn’t actually have binoculars. those opinions or inferences which are a. (a) rationally based on the perception of the witness. d. surveillance logs. the witness’ testimony in the form of opinions or inferences is limited to 1.. 3. BUT personal knowledge need not be perfect and 100% complete. a. b. Rivera —lay person could testify to meaning of records of an illegal drug operation even though she did not prepare ALL the records b/c she prepared some of them AND was trained by one of the bosses to prepare records. 2. c. 37 . technical. US v. ii. Summaries (clear way of submitting substantive evidence that is massive) NOT the same as summaries of trail evidence (“pedagogical” summary—aid to summarize already admitted evidence). Rationally based turns on 1st hand knowledge (witness is NOT 13th juror w/ a vote on the case—must have something more than trier of fact). Foundation—need to give opponent opportunity to examine summary so that adversary can object to accuracy. US v. Schneider Tank Lines—witness truck driver could not opine whether Δ did everything possible to avoid accident b/c did NOT see the accident NOR did driver have personal knowledge of truck’s safety features. iii. phone call summaries. LAY OPINION (RULE 701) i. (a)Except as provided in subdivision (b). Rationally Based on Perception (R 701(a)) 1. or other specialized knowledge w/ in scope of 702. testimony in the form of an opinion or inference otherwise admissible is NOT objectionable b/c it embraces an ultimate issue to be decided by the tried of fact. employer’s personnel records. etc. Opinion Testimony by Lay Witness (Rule 701)—If the witness is NOT testifying as an expert. OPINIONS TESTIMONY A.b. (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. AND (c) NOT based on scientific. Gorby v. loan applications part of fraud. Common summaries—anything as long as fairly representative of underlying info. Witness does not have sufficient personal knowledge where could not rationally perceive (see or experience) the event in question. c. b. Opinion on Ultimate Issue (Rule 704) 1. United States v. (b) No expert witness testifying w/ respect to mental state or condition of Δ in a criminal case may state an opinion or inference as to whether the Δ did or did not have the mental state or condition constituting an element of the crime. c. medical files. 2. VIII.
Where the witnesses testimony amounts to nothing more than a vote. Lay witnesses may draw reasonable inferences from the facts they know. v. Kostelecky v. Witnesses cannot simply make legal conclusions. NL Acme Tool—evidence that merely tells the jury how to vote/what results to reach is not sufficiently helpful to be admissible. US v. ii. There is NO ultimate issue restriction…only personal knowledge restriction. the testimony is not allowed—needs to ADD something more. Lay opinion can come close to legal conclusion (and actually be the ultimate issue) and still be admissible. b. US v. Kostelecky v. US v. 4. Torres v. Witness in no better position to observe everything observed by Δ (stuff jury already knows). a. US v. a. 2.4. (close call—depends how small or large the office was and how well they knew their boss whether or not reasonable). i. Fowler (?) compare w/ Fowler on PPT c. Santos—employees could testify to boss’ management style (dictatorial and intrusive) BUT could not testify that believed (inference) boss ordered 3rd party to fire the contractors (b/c they did not have ANY personal knowledge of that). a. 38 . Krueger (?) compare w/ Kreuger on PPT? d. Yazzie—improper to exclude lay witness’s testimony on how old girl looked (at least 16) in statutory rape case. BUT evidence that merely tells the jury how to vote/what results to reach is not sufficiently helpful to be admissible. Rea—admission of testimony that Δ MUST have known was participating in a tax evasion scheme (intent of Δ) error where attempt to introduce meaningless assertions that amount little more than choosing up sides—exclusion for lack of helpfulness under 701. Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue (Rule 701(b)) 1. 6. Whether rationally based w/in discretion of trial court. 3. personal. 5. BUT complete speculation is NOT permissible (not rationally based on perception under 701(a)). County of Oakland —witness cannot answer whether believed Π was subject to racial discrimination but question could have been phrased to ask witness about treatment of Π and other things to elicit similar information that DID NOT ask for a legal conclusion. Ultimate Issue 1. NL Acme Tool—Coworker’s accident report that said accident was Π’s fault should not have been admitted. iv. More helpful if witness draws inferences from more than observed events already in evidence—but from job history.
2. ii. b. or education. a. iii. reliable application of principles and methods. skill. 39 . experience. specialized knowledge that will assist trier of fact. 3. Testimony of Experts (Rule 702)—if scientific. Berry v. Expert provided a non-scientific opinion (not based on scientific norm)—“junk science” plus credentials did not qualify as expert. NATURE of testimony matters (ex. Koon—witness can testify that officer was “out of control” at time of beating and that officer went to office to report use of excessive force at time where ultimate issue was whether Δ willfully used unreasonable force. EXPERT OPINION TESTIMONY i. AND the witness has applied the principles and methods reliably to the facts of the case. experts specialized in some way. Qualification of Experts 1. 2000 Amendment—lay witness CANNOT give testimony based on scientific. Lay witnesses use reasoning familiar in everyday life vs. 4.a. the testimony is based upon sufficient facts or data. reliable principles and methods. ask what ordinary people would know (must be common knowledge). technical or other specialized knowledge. US v. technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. B. Π needs to prove responsibility of city. Espino—error where prosecution asked Δ on cross whether he was admitting the conspiracy—BUT could have asked “Did you have an agreement to sell cocaine?” vi. Figueroa-Lopez—error to call agents to testify as lay witnesses to practices of experienced drug traffickers. testimony that Δ was a steerer = expert. 3. experience. testimony that Δ dropped drugs = lay) b. training. a witness qualified as an expert by knowledge. skill. senior citizen sees drug deal. sufficient facts or data. Line Between Expert & Lay Testimony 1. training OR education. qualifications by knowledge. Comments— i. Witness can be lay and expert witness BUT IF expert must lay expert testimony foundation. ii. 2. 2. US v. Summary of Expert Requirements 1. the testimony is the product of reliable principles and methods. may testify thereto in the form of an opinion or otherwise IF 1. c. 5. US v. City of Detroit— officer shoots traffic suspect in back.
vi. c. Cruz—testimony that drug dealers use intermediaries for drug deals NOT helpful. State v. AND testimony that relates to matters w/in the common knowledge of the trier of fact has been held inadmissible. Others refuse to permit w/out a showing of NEED. 2. US v. McCullock v. Specificity & Specialty IS Req’d: A witness may be an expert in a subject BUT NOT as to the particular subjection. Question is not whether witness has qualifications generally BUT whether has training/experience/whatever w/ respect to the ISSUES being tried. Castillo—testimony that drug dealers force buyers to use drugs at gunpoint found not helpful b/c NY juror would know this to be case. Courts generally hold that expert testimony is on a proper subject matter if it deals w/ an issue that is not of common knowledge to the trier of fact. b. Satcher v.Expert Opinion—city’s failure to train officers was cause of accident— inadmissible (no connection to City. a. Sears & Roebuck—slip and fall case in VA (which places duty of care upon persons on sidewalks open to the public). v. Gibbs—OKAY for Agents to testify to code words. Error to instruct Jury that Spalling of concrete even if Distracting was not an excuse for Π under VA law (when expert testified that Spalling was an effective distraction and an “accident waiting to happen”). Police officers may have expertise regarding vehicles or investigating auto accidents. BUT don’t want TOO super specialized b/c danger that specialization can be so stringently applied to exclude most objective experts. a. Assist the Trier of Fact 1. Honda Motor—no error in allowing former police officer testify that motorcycle crass guards are effective in reducing injuries. Requirement that Expert be RELIABLE 1. iv. 4. Some courts permit expert to be called BUT prohibit reference to fact originally obtained by adversary. c. a. a. Proper Subject Matter for Expert Testimony 1. JML for city). (Saltzberg questions this?) b. BUT reference to previous retention can become admissible if counsel attacks the qualifications of the expert (to rebut). HB Fuller—expert on unventilated glue pot not admissible b/c need for ventilation system/dangers of glue not in dispute —issue was failure to warn. 40 . NEW scientific evidence test: requires 1) scientific knowledge must rest on a reliable foundation (reliability) AND 2) “fit” to facts of the case (relevance). Expert testimony CANNOT override the law. US v. b. a. a. 3. Scott v. A witness may be an expert on the basis of EXPERIENCE. Experts who switch sides in litigation. 2.
2. 2. iii. where no one knows exactly how much exposure but evidence suggests LOTS and Π 41 . Supreme Court Reverses a. epidemiological studies—no statistical showing (problem multiple toxins…not only that no PCB expert except in Japan) 3. General Acceptance Test (Alone) Rejected—the thing from which the deduction is made must be sufficiently established to have general acceptance in the particular field. Abuse of discretion is the appropriate standard of review for excluding/including evidence of scientific expert testimony under Daubert— trial judge is the GATEKEEPER. Do NOT need ALL of the Daubert factors to have reliability. c. admissibility of evidence review not same a summary judgment. Rate of error. animal studies—mice massive dosages. no peer review. Fry v. some limited interest (or if too narrow) may not be published. Court of Appeals Rev’d. Expert can show that one thing CAN cause the problem AND then exclude/rule out OTHER factors (differential diagnosis).Daubert v. no lab data. No studies. Can theory be tested? Hypothesis tested (falsified)? ii. judges are the gatekeepers BUT they are not scientific experts (here toxicologists). Stevens (concurring and dissenting)—would remanded for consideration under new standard of appellate review. General Acceptance good AND skepticism bad (Fry lives on as one of the Daubert Factors) b. Conclusions and Methodology not entirely distinct b. only 1 expert on causation. Subject to peer review & publication? 1. c. District Court granted Summary Judgment. Joiner US (1997)— lung cancer alleged to be caused by exposure to PCBs. Westberry v. Gislaved Bummi Ab (4th)—suit by worker for failure to warn about danger of breathing airborne talcum powder that allegedly caused several sinus surgeries. 3. law—trial judge gatekeeper. ii. ABUSE OF DISCRETION proper SOR. 2. Expert not a. US—overruled by Daubert. No one knows EXACTLY how much exposure a. Daubert Factors i. new techniques may not be published. Judge makes 104(a) determination of admissibility of expert. iv. Breyer (concurring)—emphasis on court-appointed expert (under 706). General Electric v. Strict Standard of Review for Exclusion. as applied—court finds no abuse of discretion by district court in excluding expert witness 1. Majority i. Merrell Dow US (1993) (important)—Πs suing chemical company for benedictin drug causing birth defects.
would change mind. v. 42 . Trial judge may consider Daubert Factors BUT has discretion. saw tire on morning of deposition. Gatekeeper role applies to ALL expert testimony (not just scientific experts). inconsistent b/c filed report but never saw tire. 2000 Amendment to Rule 702: added if (1) the testimony is based upon sufficient facts or data. granted SJ. whether the expert is being as careful as would be in regular professional work outside paid litigation counseling. ONLY discretion to choose among reasonable means of excluding expertise that is junk science. Kumho Tire Co v. Carmichael US (1999)—tire made in 1988 installed before 1993. discretion of trial court in choosing manner of expert reliability is NOT discretion to abandon the gate-keeping function. Supreme Court reverse Court of Appeals—proper to exclude evidence. codifies Daubert & Kumho. failure to apply them in a particular case could be unreasonable and therefore an abuse of discretion. ii. ii. subjective analysis. IMPORTANT that expert uses same level of intellectual rigor inside courtroom as used outside in particular field. 5. Court of appeals rev’d. peer reviewed lab/work data BUT still proper expert under Daubert. (2) the testimony is the product of reliable principles and methods. b. ii. Even though no studies. expert could not say whether tire went 5K or 50K miles. no evidence that is the industry standard (that others in the industry do the SAME thing) b. dist. whether expert has adequately accounted for obvious alternative explanations. whether expert has unjustifiably extrapolated from an accepted primes to an unfounded conclusions. Breyer (majority) i. whether field of expertise claimed by expert is know to reach reliable results for the type of opinion the expert would give.was exposed to LOTS. More adherence to Daubert factors—while not holy writ. identifies OTHER FACTORS in Note i. iv. Scalia w/ O’Conner & Thomas (concurring) i. AND where Δ expert says if Π is right. same latitude to determine how to assess reliability as to ruling (discretion as to procedure AND discretion as to decision). driven 7. 4. b. iii.000 miles since installed. court excluded evidence. a. and (3) the witness has applied the principles and methods reliability to the facts of the case. Here. iii. a. whether experts are developed opinions out of independent research OR research for litigation purposes. iv. iii.
f. c. Metz d. 703 Breakdown a. Experts may listen to testimony OR hypothetical Qs may be posed. 4. 43 . e. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. If of a type reasonably relied upon by experts in the particular field for forming opinions or interferes upon the subject. UNLESS the court requires otherwise. Disclosure of Facts or Date Underlying Expert Opinion (Rule 705)—expert may testify in terms of opinion or inferences and give reasons therefore w/out first testifying to the underlying facts or data. 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. 5. (added in 2002—for hearsay for example) 3. 705—may reveal admissible facts or data AND 703—restricts revealing inadmissible facts or data b. Fairchild Aircraft. Cross-Examiner may explore facts and Data—opens the door to facts that would otherwise be inadmissible c. Use of expert does not mean jury should be told someone expert (how do you establish foundation?) vii. Engebesten v. When inadmissible evidence is let in b/c of expert. The expert may in any event be req’d to disclose the underlying facts or date on cross. a limiting instruction should be given upon request that information is not being let in for its truth. Amendment states rejection of expert should be exception. Basis of Opinion and Underlying Data 1.c. Experts may attend trial. the rule (not necessarily true in practice. 2. (1) Experts MUST get information related to case. 6. (2) permits experts to rely in court on data used out of court. Bases of Opinion Testimony by Experts (Rule 703)—facts or date in particular case upon which an expert bases an opinion or inference may be those perceived by or made know to the expert at or before hearing. b. Effect of Daubert (should be none) a. The reasonable reliance requirement of 703 is much more narrow that the inquiry into whether expert’s opinion is helpful under 702. Thomas v. (3) reverse 403 analysis test for telling jury inadmissible facts and data. 705 & 703 Read Together a.) d. Typical of experts to read and rely on depositions (no error). An expert CAN be called upon to answer a hypothetical question BUT hard to do b/c of discovery rules.
2. A witness so appointed shall be informed of the witness duties by the court in writing. a copy of which shall be filed with the clerk. the witness’ deposition may be taken by any party. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed. on what to make of it) ix.b. US v. (b) Compensation. Problem—jury wants to know what are the usual characteristics and how do they relate to THIS Δ—AND cannot get to info about specific Δ w/out testifying to the ultimate issue (mental state of criminal Δ). 703 = quality of info. including a party calling the witness. c. DOES not go to methodology or reliability—that is still up for challenge under 702 if necessary. Proper delineation is Rule 703 is satisfied once there is a showing that an expert’s testimony is based on the type of data a reasonable expert in the field would use. The witness shall be subject to cross-examination by each party. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. (a) Appointment. The court may appoint any expert witnesses agreed upon by the parties. i. and the witness may be called to testify by the court or any party. ii. 2. Thigpen a. A witness so appointed shall advise the parties of the witness’ findings. if any. The compensation thus 44 . BUT cannot ask thinly veiled hypotheticals w/ Δs characteristics. and may request the parties to submit nominations. OKAY for gov’t to ask if schizophrenic can appreciate wrongfulness of acts B/C general nature of disease and typical effects ARE admissible. Court Appointed Experts (Rule 706) 1. adequacy of basis. AND Δs expert’s explanations of mental state in a criminal case do not get in either. (although the mental states DO get in—jury left w/ no info. c. 702 = foundation req’d. Ultimate Issue Rule 704 (b)—No expert witness testifying w/ respect to mental state or condition of Δ in a criminal case may state an opinion or inference as to whether the Δ did or did not have the mental state or condition constituting an element of the crime. US v. An expert witness shall not be appointed by the court unless the witness consents to act. relied upon by expert (if inadmissible) viii. BUT not okay to testify as to Δ in particular. Brown—okay to ask whether major depressive order makes a person unable to understand the wrongfulness of acts when Δ had a major depressive order. or at a conference in which the parties shall have opportunity to participate. Distinction between 703 (regulates expert’s use of inadmissible information) and 702 (regulates helpfulness. 3. (part of insanity defense reform after Hinkley) 1. b. and may appoint expert witnesses of its own selection. and reliability of the expert opinion) also made in Daubert—held 702 and 703 not the same exclusions.
a report on what people in the office said their favorite lunch spots were. 6. (1) an oral or written assertion OR 2. increase cost of litigation. (?) c. DEFINITIONS (RULE 801): The following definitions apply under this article: i. ii. 1. computer generated printouts can be hearsay—declarant is the generator of the assertion. 5. 1. may have own idiosyncrasies. HEARSAY DEFINED A. NOT hearsay.fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the Fifth Amendment. For example. offered in evidence to prove the truth of the matter asserted. When law attaches significance to utterances. leases. gives judge lots of power—cannot force someone to be an expert BUT can pick whoever judge wants. ii. 2. and thereafter charged in like manner as other costs. People v. In the exercise of its discretion. (a) Statement. Declarant i. if it is intended by the person as an assertion. rarely used. 45 . Truth of the Matter Asserted i. (2) nonverbal conduct of a person. 7. Rule 706 Basics 1. BUT people can use machines to generate hearsay. 4. iii. 2. judges know most cases will settle—reluctant to appoint one. Hearsay is a statement. b. A declarant is a person who makes a statement. 3. Centolella—bloodhounds who barked out of court are NOT declarants (may be a question for an expert regarding reliability BUT not hearsay). promissory notes. wills. other than one made by the declarant while testifying at the trial or hearing. (b) Declarant. the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (c) Hearsay. (c) Disclosure of appointment. parties don’t like them. IX. Experts of own selection. For example. Nothing in this rule limits the parties in calling expert witnesses of their own selection. (d) Parties. 1. x. For example. A statement is 1. 3. Declarants MUST be human. Should tell jury court appointed? Up to judge. and assignments are all NONhearsay when offered to show existence of legal relationships. City of Webster v. legal relationships—words spoken to create agency relationships. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs. 4. Quick—radar guns/machines are not declarants.
Vinyard Funeral Home—that listener had notice of the problem (slip & fall case) and did not act. etc. Out of court statement to show effect on the listener (state of mind). treaties. 2. Norwood—where Δ received credit card and was told by declarant it was okay to use b/c had permission admissible b/c it is offered for state of mind (NOT to prove there was actually permission to use the card). State—husband shoots wife. 2. Sadler—Δs lawyer’s testimony was that 46 . Creaghe (also has legal effect) 3. i. Fraud. Note—depends on legal standard. US v. a. b. US v. perjury. if no difference if wife was cheating in jurisdiction (no provocation) then not admissible. Offeror controls purpose—may offer out of court statement for another purpose other than to prove the truth. statements of wife’s infidelity non-hearsay b/c admissible to show effect on listener (listener-husband’s state of mind where lower crime for provocation). 1. are admissible. Jones. Statements offered to prove they were said (such as false or misleading statements) NOT that they are actually true. 2. only what a reasonable person would assume/expect based on the oral terms)—insured statement to cancel policy has legal effect. For example.) d. securities fraud. Adkins 3. vi. Order to cancel insurance policy admissible. Fraudulent statements NOT hearsay. 1. Laws. Threats are NOT hearsay. United States v. Iowa Home Mutual Casualty (and note objective theory of K does not care if words spoken were true. Orders and questions usually NOT hearsay (UNLESS contain a factual assertion). a. b. US v. Even if the ultimate issue is to prove later that the statements were false —must FIRST prove they were said. BUT “Where is the store b/c I have to get some wine for my hot date?”—end of statement can be stricken. McClure v.ii. 1. e. iv. Statements that create substantive rights and liabilities are not hearsay. 1. If a party must prove a statement to prevail or a claim or defense. c. Cantru—statements made by DEA agent where Δs defense is entrapment are admissible (goes to state of mind—how statements effected listener-Δ AND to legal defense AND not offered to prove truth but to prove they were SAID. United States v. regulations. Offers and acceptances of oral K not hearsay—b/c key to legal issue in case. like a written K. Creaghe v. v. defamation. Vinyard v. US v. Anfield—false statements (perjury) are not offered for truth and are admissible (trying to prove statements FALSE). iii. etc. Statement offered to prove Δ in no state of mind to confess (to show officer was lying). “Where is the store?” Not hearsay. Bellucci—FDIC certificate insuring bank no hearsay b/c affects the legal rights of the parties. NOT hearsay. slander. Demands are admissible b/c not truthful or untruthful—they are effective or ineffective. statement NOT hearsay. are NOT hearsay (not true or false just are). US v.
moments before confession. 47 .— obscure unpublished report 1947 report on the dangers of asbestos not admitted for a non-hearsay (NOTICE) purpose. Statement offered to prove Δ in no state of mind to confess (to show officer was lying). 7. BUT must be out of court statement Δ knew or should have known about (negligence duty of care standard). (**excluded but Saltzburg disagrees**) Out of court statement to impeach another witness (show another witness is lying). (?) Out of court statement to explain action of witness. 4. a. for example. Police statement RELEVANT at suppression hearing BUT NOT at trial. just circumstantial evidence. b. US D. 3. a. 403 objection may be made where evidence will surely be used for its truth DESPITE the limiting instruction. drug records w/ names. Wicks—recipe for making drugs found in Δs house NOT hearsay. Shepard v. Vinyard Funeral Home b. a limiting instruction will be given (105). a. Statement to prove notice must be BEFORE (not after) an accident. Complaints offered to prove NOTICE not hearsay. US v. 9. $. 801(a)—a “statement” is (2) non-verbal conduct of a person. a. Response to a question w/ action is assertive conduct w/in 801(a)(2). receipts (not for truth) but to link various Δs together.’” (note—relevant at suppression hearing but not at trial) Out of court statements to prove notice. Vinyard v. Δ spoke to the attorney and unequivocally asserted innocence. (**excluded but Saltzburg disagrees**) Out of court statement to explain state of mind of declarant. Celotex Corp.2. BUT if offered for another purpose. 6. 2. George v. Out of court statement to prove intent to commit crime (think of circumstantial evidence). Assertive Conduct 1. 8. ASSERTIVE AND NON-ASSERTIVE CONDUCT i. US v. & beeper #s (where amounts and #s were excluded). NOT true or false (no one cares if the recipe works). if it is intended by the person as an assertion. Other examples. that purpose MUST be RELEVANT. Δ spoke to the attorney and unequivocally asserted innocence. a. Sadler—Δs lawyer’s testimony was that moments before confession. police officer said “I arrested the Δ b/c X said ‘The Δ robbed the bank. Depends. Where out of court statements offered for another purpose. spouse’s statement “I hate you” in front of large group not admissible to prove hatred BUT b/c said in front of large group may be admissible for state of mind of declarant as circumstantial evidence. a. drug ledgers. For example. 5. c. a.
When officer asks wife to give clothes husband bore day of the murder and wife gives officer clothes. Nodding is assertive conduct. A bet is NOT offered for its truth and does not assert anything (it is like an order). Inadmissible where out of court statement assumes involvement in crime. i. then hearsay. US v. Caro—Δ pointed at location of drug source to DEA agents. For example. d. US v. Note—“Yeah. Non-assertive conduct 48 . Reynolds—“I didn’t tell them anything about you (Δ)” in conspiracy to steal a social security check. Ybarra—wife’s statement that husband won’t come home while police are there IS hearsay. c. a. BOTH types of statements must be excluded if they are offered for the truth of the matter asserted b/c have same effect on jury (think Bob is a good shot w/ a rifle) and neither can be crossed or verified (BOTH types subject to hearsay justifications). Implied assertions are assertions w/in 801(a)(2). he lives here and he won’t be coming back until the police leave” clearly hearsay. Katsourgrakis—friend nodded affirmatively when asked whether he had been paid by the Δ to burn the dinner = hearsay (BUT still admissible b/c declaration against personal interest). Prosecution claims not offered to prove that he didn’t say anything to them. Rationale—must exclude implied assertions b/c if only excluded express assertions it would swallow up the whole hearsay rule (b/c people don’t talk in express assertions all the time). b. c. implied = “Bob can shot a tick of a running jaguar at 200 yards. assertion = “Husband wore these clothes on the day of the murder. US v.” Stevenson v. Pointing at something is assertive conduct. US v. IMPLIES that Δ-husband lives there (and offered to prove husband lived there where a firearm was found).*) i. 1. (*Court got it wrong. (INTENT based approach— Saltzburg) i. NO substantial difference b/c conveying same thing. ii.” 2. Ask—Did the Δ INTEND to communicate an assertion? If yes. Commonwealth—subject to hearsay rule.a. express = “Bob is a sharp shooter.” or “Have you ever seen anyone shot a rifle like Bob?” ii. Statement should be treated as hearsay whenever it is offered to prove the truth of either an express OR implied assertion so long as the trial judge finds that the declarant intended to communicate that assertion when he made the statement. b. Zenni e. US v. 3. BUT problem IS offered to prove Δ was involved.
US v. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR 4. Note—problem is foundation (?) e. and was given under oath subject to the penalty of perjury at a trial. A bet is NOT offered for its truth and does not assert anything (it is like an order). Is the statement offered for the truth of the matter asserted? g. Zenni a. i.1. (1) Prior statement by witness. is (A) the party’s own statement. Is the assertion OTHER than one made while testifying in the trial or hearing? iii. made during the existence of the relationship: OR 5. in either an individual or a representative capacity. OR 3. only officer knows what informant told him. Did witness understand? [narrative] iv. US v. (C) one of identification of a person made after perceiving the person. Did the declarant actually see/hear the event clearly? [perception] vii. or in a deposition. what did you say after X spoke to you?” if purpose is to INFER what X said from context. (A) inconsistent with the declarant’s testimony. Did the declarant actually remember the event? [memory] X. Did declarant say what intended to say? [narrative] iii. NO getting hearsay in the Back Door—cannot escape the hearsay rule by asking witness. Did declarant make a statement? ii. OR ii. (B) a statement of which the party has manifested an adoption or belief in its truth. or other proceeding. Ask… i. Did the declarant have good knowledge? [perception] vi. (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment. Hearsay Concerns—the witness cannot answer the following questions b/c no cross possible. prosecutor cannot ask about police officer’s end of the conversation b/c = transparent attempt to incorporate into the officer’s testimony information supplied by the informant who did NOT testify at trial. The statement is offered against a party AND 1. OR 3. f. Was declarant being honest. (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement. “Now. AND the statement is 1. Check—informant not there. Is there Hearsay. The contents of the statement shall be considered 49 . RULE 801(D): A STATEMENT IS NOT HEARSAY IF… i. STATEMENTS THAT ARE NOT HEARSAY A. Did the Declarant believe what s/he said? [sarcasm—narrative] ii. hearing. OR 2. i. kidding or lying? [sincerity] v. OR 2. (2) Admission by party-opponent. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Some states (CA) admit all prior inconsistent statements for their truth. or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Statements admissible under R 801(d)(1)(A) can be given the same weight as trial testimony. NO prior opportunity for cross-examination is required. 7. b. Inconsistency IS found if witness is feigning lack of memory b/c witness is trying to use lack of memory as a lame excuse to distance self from previous statement—then previous statement comes IN. 4. Pre-trial interview w/ adverse witness even though transcribed by a court reporter was not admissible b/c not trial-like proceeding. US v. inability to recall. 2. Definition of other proceeding includes deposition. INCONSISTENCY does NOT require diametrically opposed statements— may be found in evasive answers. US v. silence or changes in position. hearing. (says in power-point but rules seems to say prior cross opportunity IS req’d b/c allows grand jury testimony IN?) 3. a. Prior inconsistent statements that do not qualify under 801(d)(1)(A) MAY be used to IMPEACH witness under 613 (even though not admissible as substantive proof)—when a prior inconsistent statement is offered ONLY for impeachment and not for its truth the judge should instruct the jury accordingly (that it cannot be considered for the truth of the matter asserted b/c did not fall properly under 801(d)(1)(A)). Prior inconsistent statements while admissible are not SUFFICIENT as the sole proof of an allegation central to litigation. Statements made to investigative agents did not qualify as “other proceeding” even though made under oath. a. trial. the agency or employment relationship and scope thereof under subdivision (D). 5. a. PRIOR STATEMENTS MADE UNDER OATH (DECLARANT IS A WITNESS UNDER 801(D)(1)(A)) i. but the federal rules do NOT. 1. 6. a. Grand jury testimony is admissible if inconsistent. Prior INCONSISTENT Statements—prior inconsistent statements given under oath ARE admissible (to prove the truth of the matter asserted). Livingston. Williams. US v.but are not alone sufficient to establish the declarant’s authority under subdivision (C). Day. b. US v. Rationale of 801(d)(1)(A) Admission of Prior Inconsistent Statements 50 . Orrico. c. B. US v. and grand jury hearing. Sworn statements to postal inspectors NOT a proceeding. BUT NOTE—Saltzberg’s power point says whether sufficient to prove case w/out supporting evidence doubtful but possible. Perez. b. Inconsistency IS NOT found if a witness genuinely lacks memory of the underlying facts previously spoke/testified about—previous statement DOES NOT come in.
51 . Prior CONSISTENT Statements—prior consistent statements offered TO REBUT an express or implied charge against the declarant of recent fabrication or improper influence or motive ARE admissible. Trial judge decides whether a charge of fabrication has been made. a. An express or implied charge against declarant of recent fabrication or improper influence exists when… a. Breyer w/ Rehnquist. statements was made under oath subject to penalty to perjury. US v. hearing. (Therefore. b. US v. 3. claims daughter lied to stay w/ mother.a. same witness testified previously AND was subject to cross. then inadmissible. statements made before custody battle admissible but once child had motive to lie to live w/ mother. iv. Tome does not bind state courts (evidence Rule decision. Tome v. d. Rule reaches a compromise by admitting PIS for their truth and excluding others. statement was made at a trial. Cherry—extensive cross challenged core of victim’s testimony in a sex abuse case constituted an implied charge of fabrication justifying admissibility of prior consistent statements. Prior consistent statement must be made BEFORE alleged improper motive or influence (motive to lie) arose. oath made. Hebeka— gov’t choose to have 3rd party witness testify to rehabilitate credibility of star witness (after implication of fabrication to avoid prosecution). Montague—then can bring in prior consistent statements.) a. b. O’Conner & Thomas (dissenting)—NO absolute rule that post-motive statements are not relevant. A prior consistent statement may be introduced/corroborated by a 3rd party witness. iii. Kennedy (majority)—relies on advisory committee’s notes. May be a far more powerful motive to tell the truth working during the time of the postmotive statement c. Okay b/c record made. Literal requirements of Rule 801 can be met even when a 3rd party witness testified to what attacked witness told him. all prior inconsistent statements [PIS] were hearsay b/c usually requires reliability AND PIS’s cast doubt on reliability. b. US. 1. 2. ii. 4. US (1995)—Δ accused of sexual abuse of daughter. US v. there is excessive cross examination. Believe okay to come in IF (check these off for INCONSISTENT to come in) i. ii. proceeding or deposition. justice wanted it for witness intimidation. c. statement is inconsistent. gov’t witness asked whether witness hoped to secure clemency from testimony. presumption that legislature did not intend to change settled law. not constitutional rights decision). At common law.
ii. 3. US (1988)—prison counselor assaulted 4/12. unable to recall assailant 4/19. Owens. BUT “subject to cross examination” does require testifying at trial. Rationale of 801(d)(1)(B) Admission of Prior Consistent Statements a. AND even if witness cannot recall making ID. waste of time to call witnesses to testify to repetitive story. at trail cannot remember seeing assailant BUT recalls 5/5 ID. US v.5. c. Rule 801 (that motive to lie must not have existed before the statement were made) NEED NOT be met in order to admit prior consistent statements which are offered solely to rehabilitate a witness rather than as evidence of truth of the matter asserted. B/C lies often told not more truthful. i. 801(d)(1)(B) Essentially assumes that i. Majority i. US v. 5. At common law. PCS will be believed. Lewis c. US v. prior identifications are MORE reliable than trail ids. prior consistent statements (PCS) only admissible to rehabilitate a witness BUT not for truth. Court distinguishes Rule 803(a)(3) definition of unavailability of witness to include memory loss. recalls Δ 5/5. Criminal Δ may use prior consistent statement to rebut gov’t allegation that defense was an afterthought. If trial testimony is believed. 4. Moskowitz 6. certain prior consistent statements are especially important. iii. “Subject to cross examination” does not require memory. Rationale of 801(d)(1)(C) Prior Identifications a. 2. ADMISSIONS BY A PARTY 52 . b. Confrontation clause satisfied if witness is present for cross examinations. no reason to encourage witness to practice testimony. To explain the circumstances of an inconsistent statement. Identification based on sketch admissible as a prior identification. US v. If trial testimony is disbelieved. 3rd party can testify that witness did make identification. a. ii. Prior consistent statements may be offered for a NON-hearsay use w/out satisfying Rule 801. 1. A witness who refuses to testify at trial is NOT subject to cross examination. C. b. US v. Identification may be consistent or inconsistent w/ trial testimony. PCS will be disbelieved. a. a. triers will use them for their truth anyway b/c they are same as trial testimony (no prejudice). Blackman—FBI agent took stand to testify that bank teller had previously ID’d the Δ from a photo-spread so bank teller’s previous ID was admissible even though bank teller could not ID Δ at trial. Prior IDENTIFICATIONS—made AFTER perceiving the person ARE admissible. Harris 6.
Turner—Δ made statements to gov’t in misguided attempt to exculpate himself. BUT a counter or cross claim in a civil case could make co-Πs party opponents. made during the existence of the relationship: OR 5. OR 3. US v. No showing of personal knowledge is required (unlike other hearsay). a. Admissions still subject to 404(b) and 403. Admissions are NOT declarations against interest. Rule 801(d)(2) Admission by party-opponent. 5. 53 . Co-Δs or co-Πs generally are not party-opponents. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C). The statement is offered against a party AND… 1. ii. Statement that wolf bit child by keeper of the wolf admissible against keeper EVEN THOUGH keeper did not see wolf bite the child. Admissions Generally 1. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR 4. Mahlandt v. or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Statement need not have been incriminatory at the time it was made for the statement to qualify as an admission. Properly admitted as admissions. statements proved false and gov’t admitted them at trail as evidence of Δs consciousness of guilt. a. a. OR 2. Trial judge decides whether a statement is admissible—may have to find facts under Rule 104(a). the agency or employment relationship and scope thereof under subdivision (D). 4. (B) a statement of which the party has manifested an adoption or belief in its truth.i. 6. Admissions are ONLY admissible AGAINST parties who made or are responsible for statements—limiting instructions are giving in muli-party cases (Brutton important below). US v. in either an individual or a representative capacity. 3. b. (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment. is (A) the party’s own statement. Harwood—statement by co-Δ in which co-Δ admitted sole responsibility for crime could not be admitted in favor of the other Δ. Wild Candid Survival & Research 2. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The gov’t is the party-opponent and only gov’t could have offered the evidence.
Δs statement to accountant admissible against him BUT Δ may not elicit statements he made. Ordonez—possession of drug ledgers not sufficient to constitute adoptive admissions. Admitting statement as adoptive admission is dependent upon a showing that party heard statement and understood it (under rule 104(b)). Admissions by a Party (801(d)(2)(A)) 1. b. b. State v. BUT can use silence before Miranda warning to impeach Δ. Self-serving statements to accountant not admissible. US v. Ohio. 2. transactions described corresponded w/ the Δs activities observed by police. Hoosier—Δ convicted of armed bank robbery. then it is an adoptive admission. b. a. Southern Stone v. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR 54 . US v. Rule 801(d)(2)(C) & (D)— a. Johnson—willfully failing to withhold taxes. witness testifies that Δ told witness plan to rob bank. a. a. US v. Rule 801(d)(2)(B) = a statement of which a party has manifested an adoption or belief in its truth. BUT see US v. Joshi. Party also needs opportunity to deny accusation. Authorized Admissions & Admissions By Agent 1. Constitutional limitations to adoptive admissions (not on test?). witness saw Δ w/ money and diamond rings. If a normal/reasonable person would have denied an assertion. girlfriend refers to sacks of money in room—all together = adoptive admission. Mere possession of documents PROBABLY not enough to adopt statements as true. Admissions only admissible AGAINST party. 4. Rationale of 801(d)(2)(B)—fair to hold someone to statements s/he adopts. 6. 2. Adoptive Admissions (801(d)(2)(B) 1. v. a. judge must determine that a reasonable juror could find that the Δ comprehended and acquiesced in the statement. and entries corresponded w/ a separate ledger prepared by Δ. at common law admissions were exceptions to the hearsay rule. Rational of 801(d)(2)(A) Admission by a Party—people are accountable for their own statements—based on responsibility NOT reliability.iii. Gil—drug ledger properly admitted for its truth as adoptive admission where ledger found on Δs coffee table. 5. Before admitting a statement as an adoptive admission. 7. Singer—Unreasonable to assume failure to respond to letter is an adoptive admission UNLESS it was reasonable under the circumstances for the sender to expect recipient to respond and to correct erroneous information. 3. iv. Doyle v. a. Cannot use silence after Miranda warning.
b. Ketchickan—court admitted report on Δs business that had been prepared by an agent at the request of Δ despite fact that report had not been delivered to anyone other than the executives in the Δs business. Pappas v. Poos Orally tells president same thing. Poos statements are admissible Against Poos (himself) under (d)(2)(A). a. person said walkway was icy and poorly maintained—admissible b/c unlikely under the circumstances person was just a passing by stander or that he was not an employee acting w/in the scope of employment. Kirk v. Middle Earth Condo—person slipped and fell. Π sues Poos and WC. made during the existence of the relationship: OR Agent’s statements are admissible against Company (one in control) BUT Company’s statements are not admissible against agent. Spiegel—age discrimination case. AND witness at previous trial AND b/c expert giving expert testimony fail to see how expert is an agent for the party who called him or her. Wild Canid Survival & Research—Poos keeps wolf at home and belongs to WC. 4. Difference of opinion on whether rule applies to gov’t employees. or (E). 6. Poos talks w/ person who found child and sister & child’s mother. (D). Π failed to demonstrate statements were w/in scope of employment. b. a.2. 3. IRRELEVANT that Poos lacked person knowledge The agent does not have to make the statement in front of a 3rd party to be admissible. a. Employers statements that Π was fired b/c of age were OUTSIDE scope of employment (b/c hiring and firing not part of their job)—would be different had authority to hire & fire. Logging v. a. Raymark—expert witness not an employee. person who came to fix walkway. BOD minutes reflect wolf bit child. called condo office to complain. US v. he is theirs—no authorization (C) and no agency (D) d. c. Scope of employment is KEY. no witnesses to injury. b. Hill v. Reid Bros. Poos goes to WC and leaves President a note that says “Sophie bit a child”. BUT circumstantial evidence is okay to establish the agency/employment relationship. 5. There must be some other evidence of the agency relationship OTHER than the hearsay statement itself. Poos’ statements are admissible Against WC (b/c agent) under (d)(2)(D) —within scope of employment AND during existing relationship. Minutes are Admissible Against WC—under (d)(2)(C) BUT not admissible against Poos b/c they are not his agent. 55 . (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment. An expert witness retained by a party is not admissible against the party as an agency admission.. 3 year old Daniel found w/ wolf (Sophie) and injured. 7. Spiegel employees said Π fired b/c of age. Mahlandt—Poos’ note to president was admissible. Bensinger—contents of statement alone are not sufficient to establish the declarant’s authority under (C). b. a. Mahlandt v.
the agency or employment relationship and scope thereof under subdivision (D). agents and employees unlikely to say untruthful negative things about employers while working for them. US (1987)—Greathouse is an informant. 8. cops arrest Bourjaily and Lonardo. Judge decides whether agent was w/in scope of employment—preponderance standard.c. 2. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C). Issue: Whether Lonardo’s statements on the phone were admissible against Bourjaily? b. Rationale of C & D—fair to hold persons to statements authorized. Greathouse speaks w/ friend about quality and price. court should determine by a preponderance of evidence that the prosecution seeks to draw a fair inference from the inconsistency and that no innocent explanation exists. One employee can be the agent of another employee if the relationship between the two was tantamount to principal/agent. ii. Boerer d. 56 . Admissions of Co-Conspirators 1. Who is a Co-conspirator: the out of court statement MAY be considered when the judge is determining whether the two parties are co-conspirators (and whether or not to let the co-conspirator’s out of court statement in for its truth). or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Greathouse & Bourjaily both in cars. Lonardo calls Greathouse to say has gentleman w/ some Qs. Rule 801(d)(2)(E)— a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. respondeat superior notion. agrees to sell a kilo of coke to Lonardo. vi. deal arranged for hotel parking lot. McKeon i. Zaken v. US v. a. Lonardo takes drugs to Bourjaily. McKeon Court found to get in a criminal case need to examine 1. Judge decides whether declarant was authorized to make statement— preponderance standard. 10. need true inconsistent statements between arguments. (Remember Poos & Sophie) 9. that statements were equivalent to testimonial statements of Δ (Δ authorized statements). Rehnquist (majority) (3 main points) i. A lawyer’s statements may be admissible against the client as agency admissions BUT the court uses caution in criminal cases. Bourjaily v. Personal knowledge IS NOT req’d of an agent. 2. 3. US. preponderance of evidence standard applies to factual disputes (re: evidence rulings). 11. NOTE—attorney-as-agent admissions are often found in civil cases where pleadings are superseded or inconsistent positions are taken in separate litigation.
Harris—statements in hospital of two people who happen to stage accidents to defraud insurance companies discussing how to better stage accidents enough to consider co-conspirators B/C furthers conspiracy. giving information on a drug deal to an undercover cop—YES. US v. Evidence must be at least ‘fairly incriminating’ on its own—US v. ii. 6. ii. a. 7. IN FURTHERANCE OF is read VERY broadly—anything that helps conspiracy. contents of challenged statements CAN be considered [under R 104(a) judge can consider anything NOT privileged]. keeping other co-conspirators abreast of what is going on.3. In practice. Silverman—brother-sister association too innocent to connect Δ to conspiracy. Statements to law enforcement admitting guilt will not be in furtherance even if made during the conspiracy. i. iii. 4. US v. casual admissions or attempt to stage accidents better? b. How much independent evidence (that the parties are coconspirators) is needed to get the co-conspirator’s statement in? i. d. c. It is not necessary that the gov’t charge a conspiracy to take advantage of R 801(d)(2)(E) allowing into evidence admissions of co-conspirators out of court statements. 1. what went wrong—YES. DURING THE CONSPIRACY—conspiracy ends when all the goals or met or all conspirators are arrested. iii. AND the mere fact that the declarant has been acquitted of criminal conspiracy charges does not render the statements made by the declarant inadmissible under 801(d)(2)(E). The statement must be made w/ intent to further the conspiracy (statement to blame or point the finger on other co-conspirators or to blow off steam will NOT be admissible). blowing of steam or anxiety to girlfriend—NO. US v. Statements made in furtherance of ANOTER conspiracy may be admitted. Stratton. statements that satisfy a firmly rooted hearsay exception satisfy confrontation rule (if longstanding way to get evidence in. Need SOME amount of independent evidence to get coconspirator’s hearsay in (1997 amendment to rule 801(d)(2) itself). ii. then no constitutional problem exists). 57 . Peralta Courts may admit the evidence of a co-conspirator’s out of court statement for its truth conditionally—that will connect up and prove is a co-conspirator later in the trial. c. courts almost ALWAYS find independent evidence. i. Must be at least “suspicion” of conspiracy” iv. 5. rejects bootstrapping argument iii.
ii. a. Common law called everything exceptions. Tse—gang members statements made 8 months after attempted murder not DURING conspiracy b/c by then clear plan abandoned. no longer DURING.) vii. BUT usually when acts of concealment are done after the central objectives have been attained. Mojica-Baez—bank robbery conspiracy not over until all $ divided. (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.a. Otherwise the SOL on conspiracy cases would never end. HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE A. NOT admissible against other Δs b/c NOT in furtherance of the conspiracy (to brag to friends). could be to spouse. RATIONALE OF “EXEMPTIONS” i. Serrano. (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement. US. Unavailability as a witness includes situations in which the declarant 1. said ‘We are fixing prices. US v. c. US. Late CEO of 1 Δ-company admits conspiracy to friends. RULE 804. Double Hearsay—widow of sales manager says. or 2. SJ for Δ on all claims. ii. undercover cop. City of Tuscaloosa v. US v. d. or 58 . NOTE—the person to whom the statement is made does not have to be a co-conspirator. (just needs to be said BY a co-conspirator (declarant = coconspirator). HEARSAY EXCEPTIONS i. XI. No practical difference between exemptions and exclusions—if an out of court statement fits into EITHER it is admissible (and if it fits into NEITHER it is excluded).’” i. too iii. US v. If plan abandoned not during conspiracy. D. Husband’s Statement Fails—NOT involved w/ product being price fixed so NOT w/ scope of his employment (if was then (d) (2)(D) would apply to husband. (a) Definition of unavailability. “My husband told me that Ragusa (VP for Harcros). ii. US v. admission is admissible against HIS company under 801(d)(2)(D) scope of employment. for the purpose of covering up the crime they are inadmissible. Ragusa’s Statement is (d)(2)(D) w/in scope of employment. i. etc. Relationship Between Agency and Co-Conspirator Admissions 1. b. Grunewald v. After all conspirators arrested. Harcros Chemicals—price fixing conspiracy alleged. b. Statements made to evade detection may be DURING conspiracy. The conspiracy may continue if all the proceeds have not been distributed. SO Inadmissible. 8. Perez-Garcia —error to admit statement mad after Δ and all co-conspirators had been arrested and conspiracy had been terminated.
A party cannot claim privilege AND unavailability at the same time. (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. For hearsay exceptions that require unavailability. When trial judge determines witness’ memory is gone. more than just asserting the privilege in open court. claim of lack of memory.) PRIVILEGE & REFUSAL (804(A)(1) & (A)(2) i. the declarant’s attendance or testimony) by process or other reasonable means. then witness is unavailable under 804. refusal. 1. or 5. Trial judge decides factual questions under Rule 104(a) (preponderance standard for judge). 1. B. D. iii. US v. (3) testifies to a lack of memory of the subject matter of the declarant’s statement. ii. LACK OF MEMORY (804)(A)(3)) i. or 4. iii. 1. inability. A declarant is not unavailable as a witness if exemption. US v. C. (3). or (4). US v. must establish (1) unavailability and (2) the exception. 59 . Kimball—Δ cannot claim 5th Amendment privilege and that therefore that Δ is unavailable so wants to offer transcript of own testimony at first trial—a Δ seeking to testify and make exculpatory statements must face cross examination. MacCloskey—privilege of unavailability requires a ruling by the court. 804 GENERALLY i. US v.3. 6. or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 1. Judge must exempt witness from testifying OR order witness in contempt for improper refusal in order to be unavailable under 804(a)(1) or 804(a)(2). Δ wanted continuance to permit expert testimony as to likelihood of memory recover (trial judge has a lot of discretion in memory b/c trial judge determines availability under 104(a) and review for abuse of discretion)—no guarantee of memory recovery. The party who asserts privilege has the burden of proving it. MUST call the witness and witness must invoke 5th Amendment right against selfincrimination in order to have witness be “unavailable” under 804(a)(1). (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2). Burden of proving entitlement to a rule is on the proponent (whoever wants to invoke the exception to get the hearsay in has the burden of showing (1) unavailability and (2) elements of the exception. Pelton & Rich—cannot assume witness will invoke 5th Amendment right against self incrimination). ii. Amaya—witness losses memory after auto accident. iv.
BUT Court of Appeals rev’d b/c Hays was not ABSENT w/in the meaning of 804(a)(5). then statements falling under 804(b)(3) are NO LONGER available for their truth AND can be used to impeach declarant under 806. and threw the lantern out of the house on the children. (? why is conviction affirmed? b/c admitted hearsay at trial and wanted real witness?) 2. Requires serious condition and corroboration. Procurement or Wrongdoing (804(a)(5)) 60 . **Depo preference creates anomalous results. ABSENCE: NO DEPOSITION (804(A)(5) i. US v. Requires attempt to depose for (b)(2) [refuses to come]. Coleman—minor Πs alleged were severely burned by a defective gasoline lantern that exploded. North Miss. (b)(4)[death or disability] but not (1)[proper privilege] or (6) [wrongdoing]. **Odd to punish Coleman for deposing babysitter—due diligence. Memory doesn’t need to be permanently gone forever but must be gone for the most part. 1. trial judge did not weigh factors (exercise discretion)—remand for trial on the issue of whether key witness would be available to testify at a new trial. b. 1. a. only matters in declaration against interest cases (b/c others fall under exceptions that do not require unavailability. (b)(3) [memory]. 3. F. 804(a)(4)—death or then existing physical or mental illness or infirmity. Coleman deposed babysitter where babysitter denied anything to do w/ accident. hung jury. E.ii. Practically. Surgery that would leave indisposed for one to weeks sufficient—Mutuelles Unies v. Jones—insufficient lack of memory for unavailability where witness remembered the general subject matter of a conversation but could not remember certain details. Faison—wire fraud case involving stolen checks. Hayes also made statements to various people implicating himself in the accident and they were introduced as declarations against interest. ii. Rationale—deposition as prior testimony is better than hearsay b/c opportunity for cross AND recorded. 2. Section concerned w/ the absence of TESTIMONY not the absence of the declarant—thus since depos existed declarant’s testimony was available AND hearsay statements b/came inadmissible. panicked. 1. if not conviction affirmed. key witness testifies. Coleman contended Hays was unavailable on the gound of absence b/c they made a good faith effort to find him. defense says will wait for key witness. US v. v. Trial court admitted. g.** c.** iii. If deposition made. Comm. Campbell v. suffers heart attack and is currently in hospital. ii. Acosta. BUT uncorroborated statement of Δ counsel that witness’ child’s illness insufficient to permit introduction of prior testimony. Kroll. Coleman’s theory was that babysitter overfilled the lighted lantern w/ gasoline. DEATH OR DISABILITY (804(A)(4)) i.
2. that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. Mathis—accidentally let the wrong person out of prison. or 61 . had an opportunity and similar motive to develop the testimony by direct. US v. 2. In a prosecution for homicide or in a civil action or proceeding. a statement by the witness is admissible AGAINST the party regardless. or in a deposition taken in compliance with law in the course of the same or another proceeding. Dolah—refusing to grant immunity is not positive action to prevent a witness from testifying that counts as wrongdoing under 804(a)(5). or to render invalid a claim by the declarant against another. or so far tended to subject the declarant to civil or criminal liability. Requires POSITIVE conduct—not simply failure to act. concerning the cause or circumstances of what the declarant believed to be impending death. (3) Statement against interest. If you free witness from a subpoena. Negligently making someone unavailable does not bar hearsay exceptions for unavailability. 3. a statement made by a declarant while believing that the declarant’s death was imminent. adoption. if the party against whom the testimony is now offered. marriage. H. (b) Hearsay exceptions. or. (1) Former testimony. 1. Not unavailable as a witness if absence is due to procurement of wrongdoing or proponent of statement for the purpose of preventing the witness from attending or testifying. in a civil action or proceeding. adoption. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest. 4. relationship by blood. Government can use their immunity power selectively and unfairly—but the witnesses who invoke their 5th Amendment rights are still unavailable for the purpose of the hearsay rule. 1. (A) A statement concerning the declarant’s own birth. UNAVAILABILITY EXCEPTIONS (804)(B) i. would be different if the gov’t juggled the sentencing dates to make sure the Δs still had to invoke their 5th Amendment rights at trial so hearsay testimony will get in. v. legitimacy. threatening the witness w/ death to him or his family does not make the witness unavailable. ii. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. End result is LOSE-LOSE situation—if a party wrongly procures or acquiesces in conduct that results in the unavailability of the witness… 1. Testimony given as a witness at another hearing of the same or a different proceeding. a. iv. divorce. that party cannot claim unavailability to get in desired/good hearsay for self. (4) Statement of personal or family history. US v. 2. or redirect examination. a predecessor in interest. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. then it is considered wrongdoing and witness is not “unavailable” for hearsay exception purposes. iii.i. cross. For example. (2) Statement under belief of impending death.
(B) a statement concerning the foregoing matters. 2. Grand jury testimony is not admissible under 804(b)(1) against a criminal Δ b/c the Δ had no opportunity to cross examine a witness in a grand jury proceeding. similar motive to develop the testimony by direct. BUT a grand jury proceeding may be admissible against the government on a case by case basis. iv. makes it fair to admit hearsay. REMEMBER. adoption. In the Matter of Johns-Manville/Asbestos Cases—finds entities so similarly related— overlapping officers & Board of Directors that are same entity. testimony admissible. 5. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to. ancestry. NOW cases brought by employees BUT court says both cases involved the issue of whether a warning label was appropriate on asbestos products. Expansive reading: similar motive = predecessor in interest. hand an opportunity AND 6. in a civil action or proceeding a predecessor in interest. Drs. DiNapoli J. MUST PROVE (A) UNAVAILABILITY FIRST. (6) Forfeiture by wrongdoing.marriage. if the declarant was related to the other by blood. Suppliers not predecessors in interest—but only received limiting instruction. (5) [Other exceptions. or b. 2. Predecessor in Interest & Similarity in Motive 1. even though declarant had no means of acquiring personal knowledge of the matter stated. US v. procure the unavailability of the declarant as a witness. Key: the party who the evidence is offered AGAINST needed to have an opportunity to examine the declarant and that party needed to have a similar motive at the previous examination. and death also. UNAVAILABLE. former testimony a hearing OR deposition. a. or marriage or was so intimately associated with the other=s family as to be likely to have accurate information concerning the matter declared. 5. 3. Before cases brought by end users. the party against whom the testimony is offered 4. RULE 804(B): UNAVAILABILITY EXCEPTIONS GENERALLY I. Rationale—prior opportunity w/ similar motive is sufficient. 1. it will suffice that a predecessor in interest had an opportunity & motive to examine the testimony similar to that of the party against whom the testimony is now offered. 62 . cross & redirect. iii. I. In civil cases. 2. FORMER TESTIMONY (804(B)(1)) i.] [Transferred to Rule 807] 6. of another person. ii. and did. Narrow Alternative—requires some juridical relationship between parties. 3. or other similar fact of personal or family history. Requirements 1.
a. Sometimes the prosecution will have a similar motive at trial and at the grand jury AND sometimes it won’t. b. BUT DiNapoli court found dissimilar motives—RARE that exculpatory grand jury testimony will be admissible against the gov’t under Rule 804(b)(1). c. Supreme Court rejected Δs right to use exculpatory grand jury testimony b/c of plain meaning of rule means ONLY allowed to use the testimony if there was a similar motive. US v. Salerno—court rejected “adversarial fairness” argument that gov’t shouldn’t be able to only offer immunity only if witness gives good testimony and if give exculpatory then no immunity AND then Δ can’t use grand jury exculpatory testimony.
DYING DECLARATIONS (804(B)(2)) i. Requirements 1. UNAVAILABLE; 2. prosecution for homicide OR civil proceeding; 3. believes death is imminent; 4. concerning cause or circumstances of what declarant believes to be impending death. ii. Declarant’s belief in impending death (hard to prove) 1. US v. Quintana—manslaughter conviction; deathbed statement of Lopez; describes May 21 Event; May 26th made dying declaration to Lopez’s family attorney; trial judge did not abuse discretion in finding that death was imminent. 2. Must be a settled hopeless expectation that death is near at hand. People v. Nieves 3. Relevant (Nieves) factors to determine belief in impending death are a. statement by declarant as to condition or expectations; b. statements made by medical personnel to declarant as to severity; c. nature and severity of wound as apparent to declarant; d. whether condition appeared to be declining or improving when statement was made; e. whether actions normally associated w/ imminent death such as asking for last rites, disposing property or attempting to make arrangements for care of family members. iii. Personal knowledge is required by the declarant. Shepard v. US, US 1933— suspicion or conjecture is insufficient. iv. Dying declarations can be used by the Δ or the prosecution. v. Rationale—will not die and meet God w/ a lie on lips. vi. Practically—BETTER to go w/ exited utterance—b/c almost all dying declarations (not Quintana) are excited utterances under 803(2). STATEMENT AGAINST INTEREST (804(B)(3)) i. Requirements 1. UNAVAILABLE; 2. statement which at the time of making was so contrary to declarant’s
pecuniary OR proprietary interest; OR tended to subject declarant to civil or criminal liability; OR that a reasonable person would not have made believing it to be true; BUT a statement made to expose Δ to criminal liability and offered to exculpate the accused is NOT admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ii. Income tax statements are declarations against interest to prove a floor AND each deduction on return is declaration against interest to prove a ceiling. Ghelin v. Johnson. iii. When Sufficiently against Interest 1. Williamson v. US, US (1994) (plurality)—Harris stopped on Highway; consents to search and drugs are found. Harris says cocaine belongs to Williamson in telephone conversation (says got cocaine from Cuban and delivering to a dumpster); Harris meets agents and reiterates the telephone conversation; Harris recants, admits lying, and said Williamson was traveling with him in another car—did not want statement on record and did not sign it. Harris invoked 5th Amendment immunity and was held in contempt. a. O’Conner—Narrow reading of statement against interest—only declarations or remarks w/in a narrative that are self-inculpatory. i. O’Conner & Scalia—each statement must be examined (remands for statement by statement analysis) (only O’Conner & Scalia); ii. Ginsberg w/ Blackmun, Stevens, Souter—statements inadmissible B/C not against interest here; criminal Δ was trying to cooperate and make a deal and nothing he said was a declaration against interest. iii. Kennedy w/ Rehnquist & Thomas—collateral statements should be admitted EXCEPT 1) self-serving statements (blame-shifting statements) should be excluded and 2) if statements said b/c of motivation to obtain favorable treatment then entire statement should be excluded. iv. Case remanded b/c 5 justices do not agree w/ Ginsberg—5 votes for statement by statement analysis; 4 votes for statements NOT against interest. b. Statement “I did it” and that son had nothing to do w/ it IS a statement against interest (even if exculpating son). US v. Paguio—father makes statement to exculpate son; transfers all handled by father; now father on the lamb; FULL statement admissible b/c was against father’s interest to criminally implicate himself. 2. “So far contrary to” language in Rule suggests statement need not be totally disserving—BUT interpreted to require more directness. a. Not disserving where Δ did not admit anything remotely criminal but only admitted to being in the room w/ weapons. US v. Butler b. Statement not sufficiently disserving to qualify under 804(b)(3) where the statement did not explicitly expose self to criminal liability— declarant must squarely and unequivocally implicate self or expose to civil liability. US v. Hardwood—two guys in van w/ drugs; both blamed other; declarant says that other guy “in the wrong place, at the
3. 4. 5. 6.
wrong time” and that it would have happened to anyone driving w/ him. Excluded statement and found no error. c. Must look at context to analyze how “disserving” a statement is. US v. Silverstein—declarant’s statement that killed prison guard NOT sufficiently disserving b/c already serving 3 life sentences. d. Statements implicating 3rd parties may qualify as sufficiently disserving BUT unlikely for post-arrest statements made to police. 3. After Williamson, statements like “Joe and I robbed the bank” questionable for how admissible they are when offered to implicate Joe. Lower courts have tended to distinguish between statements made to police officers after arrest (self serving) and statements made to other people before arrest (disserving). a. US v. Moses—declarant admitted statements to friend before arrested that friend said he was giving another guy (Δ-Moses) kickbacks and taking care of him money-wise. Statements of declarant implicated him and Δ. 4. Requirement of corroboration to prove not just trying to get off BUT telling truth (when make a blaming & disserving statement in one) ONLY imposed on Δ. a. some courts look to independent evidence to see if supports or contradicts declarant’s statements; b. other courts look only at circumstances of the declarant’s statements; c. Some factors from the case law to determine whether declarant’s exculpatory statement against interest is truthful are… i. timing & circumstances statement made; ii. declarant’s motive in making statement and whether reason to lie; iii. whether declarant repeated statement and did so consistently; iv. party or parities to whom statement was made; v. relationship between the declarant and the opponent of the evidence; vi. nature and strength of independent evidence relevant to the conduct in Q. vii. **Credibility is NOT a proper factor to consider.** 5. BUT has resulted in some courts requiring corroboration for all parties. iv. Declarations Against Interest vs. Party Admissions 1. Admissions exception covers statements by party or agents. Admitted b/c of responsibility (not reliability). 2. Declaration against interest is made by a non-party to the action AND the declarant must be unavailable for trial. Admitted b/c thought to be reliable. v. Rationale—declarant’s don’t make such statements unless they are true, except one Δ w/ nothing to lose may spare another.
Remanded for determination of whether murder was w/in scope. 66 . For example. Inadmissibility 2. N. Hepburn—does not allow family pedigree evidence b/c Πs are slaves. Relationship by blood 1. and reasonably foreseeable as a necessary and natural consequence of an ongoing drug distribution conspiracy involving the Δs. furtherance. concerning declarant’s OWN birth. Inadmissibility 2. a. Co-conspirators waive confrontation of witness when witness was murdered in furtherance of the conspiracy and was foreseeable witness would be murdered and co-conspirators did not stop it. relationship by blood. prosecution or Δ—party who acquiesces in wrongdoing w/ intent to render declarant unavailable forfeits right to object to the unavailable declarant’s hearsay statement. Rationale: necessity and practicality FORFEITURE BY WRONGDOING (804(B)(6)) i. 4. ii. OR 4. IF declarant was related to the other by blood. engaged in wrongdoing. within the scope. marriage or was so intimately associated w/ other’s family to be likely to have accurate info. 3. adoption. statement concerning another person regarding the above. Requirements 1. Waiver of 6th Amendment Confrontation Clause and Rule 802 by misconduct. Requirements 1. divorce or legitimacy. Duval dissent—important to admit pedigree evidence especially when freedom hinges on it. 5. ancestry. 5. Actual knowledge IS NOT required. 2. adoption. succeeded in getting the witness NOT to come. or other similar fact of personal or family history 3. or marriage. Cherry 1. iii. marriage. FAMILY HISTORY (804(B)(4)) i. if prosecutor intentionally intimidates a Δ witness so that witness refuses to testify. 1. Applies in civil cases. ii. Queen v. 2. Decided under 104(a)—preponderance of the evidence standard. Co-conspirators waive 6th Amendment confrontation clause AND hearsay exceptions when as a result of certain actions that are in furtherance. prosecution loses right to interpose hearsay objection w/ respect to any statement that he witness may have. III. adoption. even though declarant had no means of acquiring personal knowledge. US v.M. ANY—criminal or civil. 3. and reasonably foreseeable as necessary or natural consequence of an ongoing conspiracy.
Several minutes okay. caused by the event or condition.XII. iv. Testified that Δs acted in a very intimidating manner and that Δs and declarant briefly met in the back of the shop and Δs came out looking satisfied. Gov’t through hearsay statement and corroborative witnesses together can prove that an “event” occurred as the declarant described it sufficient to satisfy 803(1). US v. as to the time lapse. while declarant under stress or excitement 3. the description must be substantially contemporaneous w/ the event.” Even though declarant unavailable and no one else knew what went on in the back there was sufficient circumstantial evidence— witnesses could testify to events leading UP to and FOLLOWING the meeting in the back of the shop. Statement made 15 to 45 minutes after event no contemporaneous enough and thus inadmissible. Requirements 1. 1. ii. Campbell. 1. 2. 23 minutes okay (in other outline couldn’t find in book—?) 3. 2. HEARSAY EXCEPTIONS NOT REQUIRING DECLARANT UNAVAILABILITY a. to reflect. Requires personal knowledge—witness must have perceived the event. 1. Medler v. statement is inadmissible. Excited Utterance (803(2)) i. or immediately thereafter. Everest & Jennings—court properly refused to admit testimony by police offer about what he was told by witness since there was insufficient evidence that the witness had actually perceived the event. Most federal courts read a corroboration requirement into 803(1)—may be found in in-court testimony of the declarant or testimony from another person who also saw some of what the declarant saw or circumstantial evidence that the event occurred. iii. Present Sense Impression (803(1)) i. circumstantial or otherwise. 67 . the declarant must have perceived the event he is describing. US v. US v. Parker—Δ told bag handler bag was his several minutes before confiscated. REQUIRES EVIDENCE OF TIME LAPSE—if there is no evidence. Rationale—not enough time to lie. v. Victim said. Blankey—Δs charged w/ extortion. 1. b. 3. “stuff like tonight cost me a hundred dollars. statement must describe or explain the event prompting it. ii. Howat Concrete 4. (2) Excited utterance—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. Hilyer v. vi. statement made relating to a startling event or condition 2. Time period for “substantially contemporaneous w/ event” not exact BUT short amount of time—case by case determination. 3 requirements of Rule 803(1). (1) Present sense impression—a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.
vii. vi. Statements too for removed in time to be an excited utterance. Factors to determine if a significant amount of time has passed between the event AND the utterance. 1. then the element of surprise may create excitement when the event occurs.iii. 2. 1. Proof of the event can be established w/ the declaration itself. Marrowbone—even where sexual assault victim went home and told his mother what happened immediately. fact that statement is self-serving to declarant (not dispositive). Some courts allow longer amounts of time for SMALL children who allege sexual abuse b/c of belief less likely to fabricate story. 1. 1. US v. or independent testimony such as that of an eye-witness. SUCH AS… 1. the appearance. Some courts have held that the event CANNOT be startling if the declarant planned for the event to occur. 4. Miller v. behavior. e. then called police. BUT if not all of the factors are up to the declarant’s control. Keating—here no proof unknown declarant actually witnesses the accident. v. 2. a. b. if statement describing a previous event also predicts a future event —“something bad is going to happen” shows deliberative thought and not excited-ness. and condition of the declarant may establish that a STARTLING event occurred. US v. Medico—bystander ID of license plate to security guard admissible where bystander never found BUT personal knowledge established by fact that the guard saw him look in the direction of the getaway car as he relayed the license number. c. 5. nature of startling event—more startling longer time okay. nature of declarant—children longer time. Rule 104(a)—allows trial judge to rely on inadmissible evidence BUT ordinarily more will be required. (present sense impression) iv. Knife—pre-planned shooting of a police officer cannot be a startling event when it occurs. f. whether declarant was unconscious for all or part of the time between— time short if the declarant is unconscious b/c no time to fabricate. 2. 3. more likely the excited utterance rule will apply. Moore—secretary planned to expose her boss as a bribe taker if and when she found evidence. actually finding the evidence was starling event b/c the 68 . Must be so close in time as to have continuous excitement or stress from the time of the event to the time of the statements. police did not arrive for 3 ½ hours and then child victim gave statement to police officer. US v. d. then called police again. US v. NO hard and fast rule—shorter after event. whether declarant in fact appeared to be excited in between. BUT not impossible if declarant’s personal knowledge CAN be established. When the declarant is unknown and absent it is almost impossible to establish the requirements for admitting the statement especially personal knowledge and spontaneity. 3 ½ hours too long of time for an excited utterance.
Mutual Life Insurance Co of NY v. who intends to start a sheep ranch….” 2. [necessity] The existence of a particular intention in a certain person at a certain time being a MATERIAL FACT to be proved. 4. emotional. OR 2. identification. or mental condition. viii. 1. or terms of declarant’s will. 803(3) codifies Hillmon. “…I never expected to see when I left home. motive. (3) Then existing mental. 69 .…” and one girlfriend received. need to know what person thought) a. as I am going w/ a man by the name of Hillmon.event was not within the declarant’s control. 3. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution. emotion. mental feeling. emotional. Emotional or Physical Condition (803(3)) i. “My leg hurts” is admissible. 2 mistrials where jury could not agree. spoken. ii. A statement could fall under both. Statement of Existing Mental. [practical requirement] A man’s state of mind or feeling can only be manifested to others by countenance. no express contemporaneous requirement—time can be a little longer. Gray (Majority) a. motive. Walter’s sister received letter she lost. BUT statements looking backwards NOT admissible. Hillmon. intent. BUT “My leg hurts b/c Bob hit me” the following part is inadmissible. (exception wills b/c necessity—person who makes will is not longer around. MUST describe an event. or by sounds or words. MUST relate to a “startling” event or condition. and bodily health). b. revocation. or gesture. evidence that he expressed that intention at the time is as direct evidence of the fact as his own testimony that he then had that intention he would be. Hearsay—letters that Walter’s sister received that said “…I expect to leave Wichita on or about March 5 w/ a certain Mr. 803(2)—declarant MUST be excited. Requirements 1. YES express contemporaneous requirement—small amount of time allowed. My leg hurt yesterday is NOT admissible. states declarant’s THEN existing/present physical. attitude. or written. defense claims Walters was killed at crooked creek (not Hillmon). or physical condition (such as intent. pain. even though hoped for it was nonetheless a surprise when the event occurred. For example. all 3 cases consolidated. Present Sense Impression v. b. 3. iii. Excited Utterance 1. Hillmon. NOTE—803(3) DOES NOT permit a statement of memory OR belief to prove the fact remembered or believed. plan. c. design. sensation. or physical condition—a statement of the declarant’s then existing state of mind. US (1892)— Hillmon sues on 3 insurance policies. 2. Δ uses defense of fraud. 803(1)—declarant MUST be speaking so close in time to the event that he has no opportunity for reflection. plans—current intentions to do something in the future.
Senate did not say. Brown) Three classic cases where declarant’s state of mind is admissible… a.” Admitted as dying declaration. iv. 2. if Δ claims self defense. for example where Δ’s gun went off on accident. claim of accidental death. Victim says.” MUST analyze probative value of refuting self defense claim AGAINST prejudicial value that evidence will be used for its truth rather than state of mind. then deceased statement’s of fear as to guns or to Δ himself (showing would never go near Δ and guns) are relevant in that they would tend to rebut his defense. 2. 1.” 70 . 1. where Δ seeks to defend on the ground that the deceased committed suicide. 4. [reliability] while he is still alive his own memory of his state of mind at a former time is not more likely to be clear and true than a bystander’s recollection of what he said. Hearsay. Evidence of a declarant’s state of mind is admissible ONLY when it creates some inference w/ respect to a disputed issue AND then only if probative value of the statement in proving the declarant’s state of mind is not substantially outweighed by unfair prejudice suffered by the non-offering party. a. c. Shepard poisoned me. Δ was in love w/ other woman.c. d. Δ’s assertion that deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the Δ (thus rendering it unlikely that the deceased was in fact the aggressor in the first instance). then evidence is NOT admissible AND reversible error. “I feel Δ b/c he is a killer. “Dr. 2nd circuit took middle-of-road approach—allowing a declarant’s statement of intent to be admitted to prove the conduct of a non-declarant only when there is independent evidence which connects the declarant’s statement w/ the nondeclarant’s activities. If IMPOSSIBLE for jury to use the evidence for ANOTHER specified purpose other than for it truth. v. 803(3) statements by victims subject to Rule 403 analysis. Declarant’s state of mind (often fear of the Δ) is admissible in a homicide case if there is some substantial degree of relevance to a material issue in the case. United States (1933)—Δ charged w/ poisoning wife w/ bi-chloride of mercury. evidence that the victim had made statements inconsistent w/ a suicidal bent are highly relevant. Nurse heard. Evidence i. b. Letters were competent NOT as narratives as facts BUT as evidence that shortly before time when evidence of disappearance had the INTENTION of going w/ Hillmon. Shepard poisoned me. Overturned b/c no impending death or absence of hope. (US v. 3. When 803(3) codified disagreement over whether statement of declarant’s state of mind can be admitted to prove the subsequent conduct of a 3rd party. 3. House said—one person’s statement shouldn’t be admissible to show 3rd party intent. “Dr. Shepard v.
ii. cause pertinent to diagnosis iii. 2. D. developed severe case of trench mouth. A trial becomes unfair if testimony may be used for a nonproffered purpose. ALSO Saltzburg notes—no foundation that wife had personal knowledge that her husband poisoned her 5. emotional or physical condition]. (intent = okay state of mind) b. Hillmon—allows declarant’s state of mind statement to be offered to prove the SUBSEQUENT conduct of the declarant when probative (under 403). AND here there was no foundation of personal knowledge vi. MUST distinguish between declarations of state of mind about the future (admissible) and declarations of mind about the past (inadmissible) OR will swallow up hearsay rule. Statements must be made in order to CAUSE diagnosis. Still other evidence may cast doubt on sufficient mercury to cause death at all. said wife said she was going to di and prosecution offered testimony b. pain. 3. Some evidence may have tended to show suicidal intent. 71 . STATEMENT OF TREATMENT OR DIAGNOSIS (803(4)) i. Rationale—spontaneity? Necessity! How else would anyone ever know what anyone else was feeling/experiencing [often difficult to observe someone else’s mental. Discrimination so subtle is a feat beyond the compass of ordinary minds…evidence rules are for ORDINARY minds (must adhere to common sense). Shepard—prohibits the state of mind statements to be offered to prove PRIOR conduct of ANYONE (memory = okay state of mind). When the rist of confusion is so great as to upset the balance of advantage. iii. for medical diagnosis OR treatment. Other Evidence—wife became ill. Comparison of Hillmon & Shepard a. the evidence goes OUT. iv. or past or present symptoms. iv. present AND past symptoms come in [backward looking statements are in]. or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.ii. or sensations. may have absorbed enough to die. (4) Statements for purposes of medical diagnosis or treatment—statements made for purposes of medical diagnosis or treatment and describing medical history. 1. ii. Statements by non-patients are admissible IF for the purpose of getting a medical diagnosis/treatment for patient. used mouthwash containing mercuric chloride 5 times a day. iii. Decision i. c. Prosecution called nurse. iv. Requirements 1.
EXCEPTION for statements attributing fault that involve child abuse (and maybe spousal abuse and sexual assault). 2nd out 8 days. Rock v. returns to work. 3. said trauma was all that matter AND NOT details. Statements to medical experts in the preparation of litigation ADMISSIBLE—but jury may be told was told to expert only for purpose of weighing testimony. Dr. a. i. will see fraud. Statements said to treating physicians the strongest BUT statements to family members and social workers have been held admissible under the medical diagnosis exception so long as statement made for the purposes of obtaining medical treatment or diagnosis. 1.” Statement struck by car = in. treating injury i. i. Dr. Necessity.v. 2. ii. ix. Hearsay #3 = rock’s statements to Drs. 1. for “treatment motive” many courts require finding the child understood was speaking to medical personnel and needed to tell the truth in order to be properly treated. Dr. will mistreat the faker. not 803(3) ii. Huffco Gas—employee sues for injuries for 2 accidents. My back hurts b/c I slipped on some ice at a poorly maintained bus stop. viii. not an admissions against heirs. For example. so no 801(d)(2). US v. Adding red light does NOT effect treatment. and given plaster splint. Statement from child-declarant to medical personnel concerning abuse is ordinarily held admissible under the Rule. vii. b/c of possibility of STDs the victim’s ID of perpetrator is pertinent to victim’s treatment. vi. Rock is dead. Technically. 1st foot fell through rusted step. DOUBLE HEARSAY (805) 72 . some courts have extended child-abuse exception to spousal abuse. Hearsay #1 = 1 co-worker says rock told him he would fake an injury. then helicoptered to Dr. rationale—pertinence prong satisfied b/c pertinent to treatment of child-victim b/c must also be concerned w/ future safety. Hearsay #2 = another co-worker says rock told him he faked a slip and fall accident. Statements attributing FAULT are excluded by the rule. 4. and extended to adult-victims of sexual assault. Rationale 1. E. arguably declaration against interest c. 1. Statement is 803(3) Statement of Intent b. 2. 1. is retained for a diagnosis. but that car ran red light = NOT in. 3. Dr. Joe 5. therefore NOT 803(4) b/c NOT in order to cause diagnosis. and one month later claims slipped on grease.
iii. if the matter was of a kind of which a memorandum. or data compilation. record. BUSINESS RECORDS (803(6)) i. occupations. conditions. 1. or data compilation in ANY FORM 2.** 73 . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Rule 902(12). of acts. iii. Requirements for Business Records 1. made AT or NEAR the time BY or FROM information transmitted by a person WITH knowledge. as shown by testimony of the custodian or other qualified witness. a person with knowledge. to prove the nonoccurrence or nonexistence of the matter. or a statute permitting certification. IF kept w/ in the course of regularly conducted business activity. report. or data compilation was regularly made and preserved. whether or not conducted for profit. record. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6)—evidence that a matter is not included in the memoranda reports. ii. or diagnoses. ii. memorandum. or from information transmitted by. or data compilations. if kept in the course of a regularly conducted business activity. events. Rule 805. AND it was the regular practice of that business activity to make such compilations. and if it was the regular practice of that business activity to make the memorandum. institution. 5. 8. unless the sources of information or other circumstances indicate lack of trustworthiness. F. 4. report. calling of every kind whether or not for profit. record. in any form. report. in any form. Many business records and public records have hearsay w/ in a record. record or data compilation. Past recollection recorded may contain hearsay—example. of acts. 3. made at or near the time by. 7. The term business as used in this paragraph includes business. cop interviews witness. opinions or diagnoses. 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. (6) Records of regularly conducted activity—a memorandum.i. UNLESS the sources of the information or the method or circumstances of preparation indicate lack of trustworthiness. occupation. professions. records. all as shown by the testimony of the custodian or other qualified witness. 9. events. 6. or by certification that complies with Rule 902(11). Requirements—MUST have hearsay exception for EACH statement. conditions. **BUSINESS includes institutions. and calling of every kind. BE careful to see ALL hearsay in a statement. association. report. opinions. kept in accordance with the provisions of paragraph (6). profession. OR by certification.
Hoffman. Palmer v. Vigneau—Δ involved in drug distribution. Kelly v. Lutz —policeman’s report is admissible. The Double Hearsay Problem of a Business Record 1. Johnson v. computer generates control #. 2. can be proved by legal or business DUTY to report accurately. 1. ix. US v. clerk fills in on right side. Wasserman—social worker’s report is admissible b/c social welfare was required to keeps such a report and the person who made report individually interviewed Π. MOST courts have read Palmer that a records in anticipation of litigation are not in the normal course of business to prohibit records favorable to the party preparing them = suspect motivation. NOT in regular course of business w/in 803(6)). 3. Courts are VERY suspicious of business records in preparation for litigation. 4. sender writes name on form on left along w/ recipients name. The Duty Requirement—recording/compilation must be taken b/c of the DUTY OF THE REGULAR BUSINESS TO REPORT THE INFORMATION ACCURATELY. vii. NOTES may be business records. WHAT 3rd party says are not. MOST courts construed the “ordinary courts” and “regular practice strictly (minority construe broadly). viii. **Business of railroads is railroading not investigations. Bland—the ATF form sufficient for double hearsay problem that she in fact signed the form purchasing the gun and the manager testified that the employee completing the form has knowledge of the transaction at the time it occurred.** 2.iv. 1. 2. US v. v. 3. BUT is not a record made for the systematic conduct of the business AS a business. Δs name on “to send to” forms is NOT business record b/c NO DUTY to make sure receiver’s name is correct b/c NO verification of ID by Western Union when recipient picked up money order. vi. OKAY b/c 1) since federal regulations REQUIRE ID of purchaser AND 2) purchasers are under a legal duty to provide truthful information the double hearsay problem satisfied. OR the underlying statement satisfies ANOTHER hearsay exception. Business records of a REPORTER… 1. OR the underlying statement is NOT offered for its truth. then admissible. BUT if a report is UNFAVORABLE to a party who prepared them. 3. sends money orders from NE to TX by Western Union. 74 . A private memo should NOT be admitted where the memo is NOT made in the pursuance of any duty owning by the person making it OR when made upon information derived from another who made the communication casually & voluntarily and NOT under the sanction of duty or obligation. US—accident report may affect the business in that it affords information on which management may act. Can establish foundation for business records by ANYONE who has acquired knowledge about how records are kept—can testify about regularly conducted business activity.
Verdict for Beech. PUBLIC RECORDS (803(8)) i. excluding. in criminal cases matters observed by police officers and other law enforcement personnel. Lt. 803(7) Absence of an Entry in a business record—can be brought in to prove the nonoccurrence or nonexistence of the matter. Safeguards are factual findings require factual investigations. ii. setting forth 1. record. xi. Reverses— error in admitting opinions. reports. Rainey. NOTE that there are 3 hearsay exceptions that overlap w/ the Business Records Exception 1. unless the sources of information or other circumstances indicate lack of trustworthiness. 3. statements. Liberal reading of 803(8) required—a court may not exlude an investigative report merely b/c it is an opinion. (A) the activities of the office or agency. (C) in civil actions and proceedings and against the Government in criminal cases. Fact findings include conclusions AND opinions—difficult to draw the line (is “Engine operating at reduced power” a fact or opinion?). or data compilations. or data compilation was regularly made and preserved. however. commander Rainey and ensign Knowlton. Trustworthy requirements keeps records OUT but cannot get records that fail under another prong IN. Liberal reading of 803(8) consistent w/ 701-705. Beech Aircraft v. 803(5) Recorded Recollection—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. OR 2. Commander (JAG) prepares investigative report. 75 . 2. factual findings admissible in civil cases and against gov’t in criminal cases. kills lt. Appeals Reverses. US (1988)—navy training flight crashes. of public offices or agencies. trustworthiness requirement IS present in rule. determines pilot error most probably cause of crash. factual findings resulting from an investigation made pursuant to authority granted by law. Requirements 1. (8) Public records and reports—records. 3.x. in any form. MAY be read into evidence but may NOT be received as an exhibit UNLESS offered by an adverse party. G. matters observed by law enforcement. activities of office or agency—admissible in ALL cases 2. (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report. Supreme reverses and remands—not necessarily inadmissible. 1. if the matter was OF A KIND of which a memorandum. Computerized records require EXTRA foundation respecting the reliability of the computerization (usually) BUT the standard is the same—treated like paper records. report. Πs sued Beech alleging product defect “rollback”. 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. xii. OR 3. 2. unless the sources of information or other circumstances indicate lack of trustworthiness. iii.
1. then subject to exclusion for untrustworthiness). 3. a. Law enforcement reports that are adversarial and evaluative in nature are ordinarily excluded. and must be based upon sufficient information and investigation. if report is not final report. LIMITATIONS of 803(8)—imposed by the trustworthiness clause 1. fingerprint card 2. Oates—chemical cocaine analysis official report should have been excluded as law enforcement report. Ministerial reports not in contemplation of specific litigation generally admitted under 803(8)(B). 7. International Playtex—CDC report concerning TSS admitted even though based on Drs. AND if based on ex parte communications which adversary has NO opportunity to respond.iv. US v. 2. exclusion of the report is possible if the report appears to have been made under SUSPECT motivation. for good reason. to be admissible. breathalyzer report. BUT courts take flexible approach. w/ no duty to report to CDC BUT admissible b/c no considerable motive for doctors to misrepresent info or to lie to CDC. Can try to get in under business records exception. MAY be excluded by statute. v. Reports not admissible under 803(8) might be admissible under another exception.” 4. must be made by a QUALIFIED person using reliable methods. (if public official has an institutional or political bias. 8. 5. Scope of inclusion for criminal law enforcement reports 1. Special Rational for special exception for PUBLIC records 76 . Reports admissible if law enforcement personnel/gov’t offical who made report testify. vii. If the gov’t official would not be able to satisfy the standards for an EXPERT to testify at trial. considered more trustworthy than findings made w/out a hearing (lack of hearing is NOT dispositive BUT does cut against admissibility). AND the final report is consistent w/ the bias. merely preliminary. Ellis v. 5. 6. given strong presumption public records admissible. then no reason to admit official’s hearsay statement. timeliness of investigation is factor. factual findings and conclusions made after a formal hearing are. (most courts) 4. a. no longer contains “factual findings” w/ in the rule. (minority) 3. vi. Reports of NON-law enforcement officials may be admitted in criminal case. 3rd party hearsay (when official who prepared report receives info from others) excludable. opinions nothing more than legal conclusions are excluded. opinion. not admissible b/c not considered containing “factual findings. STRONG indication untrustworthy. if report revoked or superseded by the agency that prepared it. a. 2.
periodicals. 5. 1. may be READ into testimony or shown IF chart [but NOT shown to jury]. If admitted. if reort made to public office pursuant to req’d of law. marriages. BOTH sides used treatises and Δ used video tape. Learned Treatises (803(18)) i. How to video tapes may be learned treatise under 803(18). [may be admitted w/out affidavit OR foundation witness] viii. Also.** iv. must say search was made. regarding statements contained in published treatises. Herzog—malpractice suit for nerve damage to infants’ arm. **where treatises define legal standards—such as standard of care. or other science or art. necessary for IRS to prove no taxes ever filed. Requirements 1. Diligence requires reliability and reality if the basis for the exception. a. or pamphlets on a subject of history. 3. fetal deaths. ix. Residual Exception to the Hearsay Rule 77 . 3. 2. periodicals. can use treatise relied upon by your expert. Constantino v. absence evidence is excluded. 803(9) records of vial statistics—births. statements contained in published treatises. pamphlets 4. 2. medicine. (18) Learned treatises—to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination. hearsay exception for the absence of a public record under 803(10)—to prove public record NEVER made. NOT exhibit b/c not substitute for expert and should not be given more weight than trial testimony. deaths. exception when stipulation. ii. (BUT problem b/c can’t remember it all. 1. must be established as RELIABLE authority by admission. eliminates need for public officials to testify or prepare foundation affidavits— more time for public duties. established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. h. used for expert’s attention to treatise on cross OR 2. except XIII. a. Assumed that public officials perform duties properly and given many duties will not remember individual details of a transaction to testify. or judicial notice. Example. should be out under 403. the statements may be read into evidence but may not be received as exhibits.) 1.1. ISSUE: is video tape a learned treatise? 2. 803(10)—requires diligent search failed to disclose the existence of the absent record. if affidavit. If substantial doubt about diligence. iii. [can be reliable W/OUT the regularity requirement of 803(6)] 2. another expert.
truthfulness of declarant. ii. ii. but provides an extra piece of proof). whether declarant recanted or repudiated statement. iv. Notice req’d—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. 78 . ii. 807 says applies only to “statement not specifically covered by 803 or 804”—but what does “statement not specifically covered” mean? ii. Court could have come out either way w/out being rev’d. b. Has been interpreted to mean that if missing something to meet a 803 or 804 exception then must have something EXTRA that is different (doesn’t fall under rule. that (A) the statement is offered as evidence of a material fact. whether the statement as well as the event described is clear and factual or vague and ambiguous. trial court admits. Shaw—previous testimony to convict Branch also implicates Shaw. (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.” Salesman unavailable. vi. including the name and address of the declarant. US v. iii. i. Majority of courts—reject Easterbrook’s opinion idea that a “near miss” bars resort to 807. Dent—Δs convicted of possession of firearms. whether declarant appeared to carefully consider statement. capacity of declarant at time of statement. whether declarant made other statements inconsistent or consistent. Trial judge admists. x. trial and presiding judge and jury AND substantial opportunity for cross. xi. iii. Easterbrook (concurring)—says 804(b)(1) applies to grand jury testimony therefore 807 cannot apply (near miss rejects resort to 807. whether the declarant’s memory might have been impaired due to lapse of time between event and statement. v. i. iii. relationship between declarant and witness. and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. vii. “1driver photo ID and a woman bough the car. ix. Residual Exception (807)—A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness. US v. whether statement was made under formal circumstances pursuant to formal duties so would remember accurately. c. iv. viii. both witnesses required truthful testimony AND one witness had bias against Shaw. whether behavior of the declarant was consistent w/ the content of the statement. Claimed gun owned by 3rd party and did not know gun in car. the proponent’s intention to offer the statement and the particulars of it. Factors in Determining Whether Statement is Sufficiently Trustworthy to Qualify as Residual Hearsay i. whether the declarant had personal knowledge of the event or condition. Grand jury testimony of car salesman said.a. d. is not excluded by the hearsay rule. Rev’d on appeal for insufficient corroboration b/c driving car not enough. if the court determines i.
whether the declarant was cross-examined by one who had interests similar to the party against whom the statement is made. A court shall take judicial notice if requested by a party and supplied with the necessary information. xiv. xii. In the absence of prior notification. the request may be made after judicial notice has been taken. h. 3. but is not required to. whether statement appears to have been made in anticipation of litigation and is favorable to person who made or prepared statement. A judicially noticed fact must be one not subject to reasonable dispute in that it is either a. (f) Time of taking notice. g. (c) When discretionary. whether the statement was given voluntarily or pursuant to grant of immunity. This rule governs only judicial notice of adjudicative facts. B. ii. 7. (1) generally known within the territorial jurisdiction of the trial court OR b. XIV. 5. Appellate Court CANNOT invoke 807 b/c no chance for pre-trial notice. (d) When mandatory. Judicial notice may be taken at any stage of the proceeding. Substitute for proof—prevents unnecessary expense & delay. 3. 6. probably cannot use residual hearsay rule.e. the court shall instruct the jury to accept as conclusive any fact judicially noticed. 4. whether declarant was a disinterested bystander or an interested party. f. (b) Kinds of facts. the court shall instruct the jury that it may. xv. legislative facts = apply irrespective of the parties (cocaine is controlled substance no matter who is on trial) iv. A court may take judicial notice. (g) Instructing jury. 79 . capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questions. Rule 201 1. “More probative” does not mean more credible. 2. whether requested or not. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. (e) Opportunity to be heard. In a criminal case. Adjudicatory facts = involves those parties and this case that would otherwise have to be decided by the trier of fact. (a) Scope of rule. xiii. Pre-trial notice flexible—during trial is okay. accept as conclusive any fact judicially noticed. iii. JUDICIAL NOTICE GENERALLY i. If have LIVE witness as evidence at all. JUDICIAL NOTICE & PRESUMPTIONS A. JUDICIAL NOTICE (201) i. In a civil action or proceeding. AND NOT subject to reasonable dispute. The kinds of facts subject to judicial notice ARE 1. generally known OR 2. (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
PRESUMPTIONS (301 & 302) i. Jurors can use common sense where judicial notice or proof BUT here was neither. whether a street is in business district. Dior 3. Some states require foreign law to be pleaded & proved. interest rates. 5. where fact not generally known vii. Judicial Notice of Law 1. 6. Court MUST take judicial notice if requested AND standard is met. party may request reconsideration. xiii. scientific law. vi. national holiday. 2. 5. whether HIV can be transmitted by spitting. US v. Presumptions in General in Civil Actions and Proceedings—in all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules. high crime area. Bello 2. Judicial notice of jurisdiction is proper—no right to litigate frivolous facts. NOT OKAY to take judicial notice of previous fact finding by another judge. viii.v. but does not shift to such party the burden of proof in the sense of the risk of non-persuasion. Judicial Notice in Civil & Criminal Cases 1. 7. (201(d) mandatory judicial notice) ix. 4. 80 . Lee. Legislative facts—judge must decide law and meaning of statutory terms. Other Nuances to Judicial Notice 1. which remains throughout the trial upon the party on whom it was originally cast. 2. 2. 2. 8. Examples of where NOT appropriate to take Judicial Notice 1. Examples of Facts Subject to Judicial Notice 1. xii. distance. a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. C. 201(e) x. 3. Party is entitled to a timely request to be heard. Varcoe v. Judicial notice may be taken at ANY time during the proceeding. US v. etc. disputed facts a. Court may take judicial notice on its own—sua sponte. period of gestation for humans 9 months. Gould 4. (201(c) discretionary judicial notice) 1. Judicial notice MAY NOT be taken on APPEAL in CRIMINAL cases—b/c the jury is not required to accept as true things given judicial notice (NOT binding in criminal case). OKAY to take judicial notice of court records. US v. 201(f) xi. Rule 301. Judicial notice MAY be taken on APPEAL in CIVIL cases. Federal courts will take notice of state & foreign law.
3 Places in Evidence Rules where State Law Governs i. 2. Applicability of State Law in Civil Actions and Proceedings—in civil actions and proceedings. **OK for judges to point out permissible inferences of circumstantial evidence. the Δ must prove he was NOT the father. MUST find letter timely received. otherwise the Π must prove that he was the father. 3. Rules govern rebuttable presumptions only.” 4. OK even though juror may hear instruction as command. Presumptions Generally 1. Rule 302. vii. Mechanics = prove 1 fact (triggering fact) . (All circumstantial evidence that is relevant permits inferences. If prove properly addressed. Judges will not use word “presumption” b/c suggests mandatory to find something. get another one for FREE! (presumed fact) 1. 501 Privileges 3. if find letter properly addressed. only presumption rules are in civil cases = NO presumption rules for criminal cases.** 2. just of burden of proof. Rationale—logic & social policy. the presumption has a lingering effect. When burden shifted. 302 Presumptions iii. Criminal Cases 1. 2. 4. County Court v. Results in confusing jury instructions… “If you find that the child was born during the marriage. a. 5. 601 Competency ii. 3. Permissible inferences ARE NOT presumptions. Allen—presence of firearm in car is presumptive evidence of illegal possession. 81 . iv. Jury instructed on permissible inference. Party against whom presumption operates may challenge either fact or both BUT only challenge of the 1st fact rebuts the presumption. State law governs when state law provides rule of decision. 4. For example. v. Example—properly addressed mail presumed timely received. BUT under rule 301 (federal) burden NEVER shifts. BUT disappears if rebutted…BUT if not rebutted is BINDING. vi. iii. Jury NOT told of presumption. 3. PRESUMED timely received. Presumption = jury instruction that says. evidence that the mail was not timely received DOES NOT rebut the presumption. 2. Shifting the Burden 1. Federal judges may sum up and comment BUT rarely do.ii. Some states and federal statutes shift the burden of persuasion. Conclusive presumptions are the same as rules of law. the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
XV. Should not matter who parties are what issues are. MODES OF IMPEACHMENT i. Oath requirement may NOT be challenged for lack of belief in God. ii. collateral in another. including the party calling the witness. Communication v. (Proof of good faith basis need not be in form of admissible evidence. Attack on CHARACTER 1. BUT rule 403 limits some impeachment and trial judge maintains discretion under 611(a) to protect witness from unfair embarrassment OR harassment. Veracity/Non-truthfulness viii. Contradiction x. 610. 1. 4) hardship (in attending church—stretch). i. Recall iv. Prior inconsistent statements—relevant in one case. 2. 82 . Prior Inconsistent Statements ix. Bad Acts vii. E. Oath ii. Convictions/Prior Crimes vi. if called for good faith purpose then a-okay. NOW okay to impeach any witness. iii. ii.) ii. Religious beliefs may be admissible to show 1) bias or 2) motive. Religious Beliefs or Opinions—evidence of beliefs or opinions of a witness on matters of religion is NOT admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced. 2. iii. 1. Bias C. Case Specific Attack 1. For example. Good faith basis for inquiry—any question that is dealing w/ a SPECIFIC factual allegation must be ground din good faith basis that the matter inquired into actually occurred. witness is a felon. REQUIREMENTS FOR ALL IMPEACHMENT MODES i. 2. a bad actor. B. And party may NOT call witness solely for impeachment b/c called for an impermissible purpose. Must be aware of difference between rules 801(d)(1) and 613. ii. IMPEACHMENT (MODES) A. Sampol iii. Common law party could not impeach own witness. 613 = statements are admissible ONLY to impeach. Cannot cross-examine witness about religious beliefs. Perception iii. NEED something else—some type of useful evidence. For example. a liar. 1. 3) employment. D. VOUCHING = (RULE 607) WHO MAY IMPEACH—the credibility of a witness may be attacked by any party. US v. cannot call a witness JUST to show had prior statement against Δ and now says statement FOR Δ b/c results in net zero and serves no purpose. TYPES OF ATTACK i. Any form of relevant impeachment is permissible UNLESS rule say NO. Bias—relationship to a party (which will vary from case to case). ELEMENTS OF COMPETENCY i. 801(d)(1) = statements are substantive evidence as well as impeaching.
certificate of rehabilitation. annulment. psychiatric history—brings in Rule 403 G. and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year. and b. whichever is the later date. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction. 2. and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. (2) the conviction has been the subject of a pardon. For the purpose of attacking the credibility of a witness. (1) the conviction has been the subject of a pardon. evidence of a conviction more than 10 years old as calculated herein. annulment. or certificate of rehabilitation. use of drugs or alcohol is relevance based—ability to perceive. subject to Rule 403. recall. The pendency of an appeal there from does not render evidence of a conviction inadmissible. (e) Pendency of appeal. in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. 3. annulment. (b) Time limit. OR b. 83 . CHARACTER IMPEACHMENT i. is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. however. Impeachment by Evidence of Conviction of Crime— 1. Rule 609. if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. (a) General rule. The court may. or other equivalent procedure based on a finding of innocence. or narrate ii. Evidence of the pendency of an appeal is admissible. RULE 402 = BASIC RELEVANT EVIDENCE FOR IMPEACHMENT i. that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted. regardless of the punishment. 5. unless the court determines. (d) Juvenile adjudications. a. (c) Effect of pardon. 4. Evidence of a conviction is not admissible under this rule if a. (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement. However. in the interests of justice. or other equivalent procedure based on a finding of the rehabilitation of the person convicted.F. Evidence of juvenile adjudications is generally not admissible under this rule.
b. b. 609(a)(2): Dishonesty Offenses 1. particularly inflammatory. a. admissible subject to 403 balancing. 2. Rationale—people who commit felonies show more disrespect for law and are more likely to lie iii. Admissible under (a)(1). admissible subject to balancing in favor of exclusion. NOT FALSE CRIMES = assault/force charges. 7. Δs stands good chance of exclusion when i. counterfeit $. To Preserve Appeal 1. ii. iii.ii. Prejudice = risk conviction will be used as character evidence. US) and testify to challenge an in limine motion that can be used for impeachment. forgery. criminal fraud. then ask if felony conviction under 609(a)(1). Hays—bank robbery w/ gun & assault charges. 2. Government MUST show dishonesty element of crime. 6. 4. If yes. First ask if the crime a crime of dishonesty or a false statement? a. if Δ. (minority) 3. Burden of proof is on the prosecution to show the probative value outweighs the prejudicial effect. Δ does not testify BUT could not appeal b/c hypothetical ruling after Luce. 5. BUT cannot elicit evidence on direct or WAIVE appeal. Examine the Elements of Crime for What Convicted—was it committed in a DECIETFUL manner. b. & prostitution. 2. Δ has been impeached in other ways 5. false police statement. Ohler v. 609(a)(1): Prior Convictions Generally 1. possession of a weapon. Examine the Facts Underlying the Conviction—is it a dishonest CRIME. If no. Crimes of force not dishonestly offences c. drunkenness. Bracken—Bank robbery not per se dishonesty offense iv. 4. Two Approaches to Dishonesty Offenses a. then automatically in. Importation of cocaine may be dishonest offence. US v. Recent convictions are more probative. a. IN-BETWEEN CRIMES = petty larceny. FALSE CRIMES = Perjury. d. Special balancing test for the ACCUSED—probative value must outweigh prejudicial effect but not substantially (as in 403). Two 609(a)(1) Balancing Tests a. US 84 . US v. if witness. similar to crime charged now. embezzlement. Crimes punishable by imprisonment for MORE THAN 1 YEAR. (majority) b. 3. the Δ must take the stand (Luce v. e. For ALL witnesses OTHER THAN the accused. Court found smuggling veracity-related BUT not a(2) offense. robbery & narcotics possession = dishonesty offences. all are crimes of false statement. Δs narcotics conviction admissible. etc.
Example. Discretion whether or not to admit. ii. 3 Party Actions that are inconsistent w/ the denial of the bad act are INADMISSABLE as testimony that the 3rd party act actually occurred. be inquired into on cross-examination of the witness 1. a. Notice Requirement vi. Extrinsic evidence ban ONLY on 608(b)—can admit under another rule. NO extrinsic evidence—acts not worth time to litigate if they are denied. 85 . a. must give adverse party notice that plan to try to use it. if probative of truthfulness or untruthfulness. other than conviction of crime as provided in rule 609. ask. 2. Presumptive Ban b. H. PRIOR BAD ACTS (608) i. Specific instances of the conduct of a witness. 10 year cut OFF 2. b. 608(b) Specific Bad Acts Generally 1. “Didn’t your employer fire you for stealing money. OR 2. After 10 years. a. b. however. challenge competency. Simmons v. 609(b): Time Limit 1. “Did you steal money from your employer?” i. Advisory committee changed “credibility” to say “character for truthfulness” to narrow the limit the no extrinsic evidence rule. 3. (1) concerning the witness’ character for truthfulness or un-truthfulness. Rule 608(b)—Specific instances of conduct. whether by an accused or by any other witness. They may. may not be proved by extrinsic evidence. and to show inconsistent statements. 4. in the discretion of the court. (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. i. (so cannot ask “Weren’t you fired?” and cannot bring boss in to say were fired) 3.v. DOES NOT OPERATE AS A WAIVER OF THE ACCUSED’S OR THE WITNESS’ PRIVILEGE AGAINST SELF-INCRIMINATION when examined with respect to matters which relate only to credibility. Rationale—acts may shed light on credibility. If say no. for the purpose of attacking or supporting the witness credibility. b/c actions are being used to contradict witness’ denial. 609(e): Pendency of Appeal—conviction awaiting appeal DOES NOT negate impeachment use. IMPROPER to ask. or “Were you suspended from the bar for improperly handling money?” rd c. Extrinsic evidence ADMISSIBLE to prove bias. The giving of testimony. Pinkertons—lie about passing lie detector test admissible where witness ADMITTED lying. Reverse 403 Balancing c.
iii. Examples of Permissible 608(b) Questions 1. Use of aliases 2. False credit card applications 3. Do not have to be criminal. iv. Examples of Impermissible 608(b) Questions 1. drug use; 2. prostitution; 3. litigiousness. v. Requires GOOD FAITH basis for question. i. 608(a): Attacking Witness i. 608 (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1. (1) the evidence may refer only to character for truthfulness or un-truthfulness, AND; 2. (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. ii. 608(a) Attacking a Witness Generally 1. ONLY applies AFTER witness testifies (or hearsay statement is introduced). 2. Reputation or Opinion ONLY—character for truthfulness or untruthfulness only. 3. CANNOT offer favorable evidence UNTIL witness is attacked. (May be attacked by character “or otherwise” such as slashing-cross examination.) iii. When Attacked 1. When psychiatric evidence admitted, expert opinion is not attacked. US v. Hiss. iv. Amount of Attack Permissible 1. UP to the discretion of the trial judge. US v. Barnard—pot prosecution. Δs call experts to say witness is sociopath; witness perjured self before grand jury; trial judge had discretion to bar experts when witness already impeached for perjury. v. Experts/Psychiatrists on Truthfulness of Witnesses 1. Usually psychiatric testimony is excluded as to mental condition of witness for capacity to telling truth. 2. BUT where Δ suffers from a disease that makes blurt out web of lies must allow expert to explain disease. US v. Shay j. 613: Inconsistent Statements i. Rule 613 Inconsistent Statements 1. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. 2. (b) Extrinsic evidence of prior inconsistent statement of witness. 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, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). ii. Rule 613 on Inconsistent Statements Generally 1. Examiner may ask witness about prior statement. 2. NEED NOT show a statement to witness when asking. 3. MUST show statement to opposing counsel on request. 4. MUST give witness chance to explain or deny = when “laying a foundation.” 5. EXCEPTION = admission by a party. 6. Possible to offer inconsistent statement and recall witness but make sure available. 7. Rationale—inconsistency casts doubt on credibility & needed to give gov’t fair trial. a. US v. Rogers—gov’t calls co-Δ who pleaded guilty to robbery; witness says he cannot remember robbery or contents of FBI statement; prosecutor permitted to impeach w/ statement made to FBI; limiting instruction to jury; impeachment NEEDED to give gov’t fair trial. iii. Relationship to Rule 801(d)(1)(A)—may not call a witness simply to get a prior inconsistent statement before a jury UNLESS the statement is admissible as substantive evidence. 1. A party who is SURPRISED will be permitted to impeach. 2. Foundation must be satisfied—witness must have chance to explain or deny statement. iv. Extrinsic Evidence Can Come in on Impeachment for Prior Inconsistent Statements. 1. US v. Winchenbach—alibi witness says he did not know Δ was involved w/ drugs. Made prior statement to agent did know—statement admissible for impeachment. NO 608(b) bar b/c statement not being offered to prove bad act BUT being offered to show inconsistent statement. k. Collateral Issues i. There is NO federal rule prohibiting contradiction of collateral issues—judges use 403. ii. Contradiction as to elements of claim or defense will ALWAYS be permitted. iii. Also intent, plan, bias, contradiction, etc. will be admissible. 1. State v. Gore—Δ denies living in trailer or ever selling drugs there. Evidence of earlier sales admissible to prove intent. Admissible even if Δ did not testify under 404(b) to prove intent/common plan. 2. US v. Robinson—BIAS not collateral. 3. US v. Beauchamp—where lived collateral (discretion to trial judge). 4. US v. Castillo—contradicting broad claims on direct NOT collateral, can be admitted. Here, Δ claims anti-drugs so prior drug arrest can be admitted. iv. Courts may be more reluctant to permit contradiction on cross. l. Bias i. Bias Evidence is Admissible under 401 & 402. US v. Abel, US (1984). 1. Trial Judge did not err in admitting evidence that the Aryan Brotherhood (name not used at trial) was a lying and murderous group.
2. Also reasons that evidence of bias is admissible even though same evidence would NOT be admissible under 608(b). ii. Extrinsic evidence is admissible to prove bias or any other impeaching fact other than a 608(b) act. iii. Many courts require questions about bias BEFORE extrinsic evidence is offered. iv. Confrontation clause guarantees Δ right to explore bias of gov’t witnesses. m. Rehabilitation i. Rule 608 (a)(2) 1. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations… a. AND (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. ii. Gov’t cannot open door to impeach own witness. 1. US v. Medical Sciences—cooperating witness was asked on direct about 2 prior convictions and being accused by company owner of embezzlement. Δ attacked witness about fraud nature of convictions & suggestion of corruption. DOOR is open for rehabilitaton. iii. Prior Consistent Statements 1. 801(d)(1)(B)—admits prior consistent statements as non-hearsay; Tome requires statements have preceded motive to falsify. 2. Prior consistent statements may put inconsistent statements in context. a. US v. Harris—Δ impeaches witness w/ statement from FBI. Gov’t offerst consistent statements from same interview. Tome inapplicable. iv. Judge has discretion to decide how much rehab to allow. n. 806 Attacking and Supporting Credibility of Declarant i. Rule 806: Impeachment of Declarant—when a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant=s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. ii. 806 Generally 1. Hearsay or 801(d) statements (BUT NOT personal admissions) make declarant a witness. 2. Opposing party may impeach witness as if witness testified at trial (no foundation requirement under 613). 3. Offering party may rehabilitate declarant at trial. 4. Opposing party may call declarant and cross examine. 5. Broad reading of inconsistent.
Claims of privilege are made when gov’t agencies or entities seek to compel disclosure of information. 801(d)(2)(E) statements admitted. A-C Privilege vs. Revered b/c TOO narrow. waiver by disclosure to 3rd party. iv. 3. NOT the same as work product. government. ii. or political subdivision thereof shall be determined in accordance with State law. Generally 1. BUT 608(b)’s NO extrinsic evidence rule poses a problem. ii. A-C privilege is separate from privilege against self incrimination but BOTH privileges work together when gov’t subpoenas evidence. C. Supreme court submitted 13 privilege rules to congress and disagreement over substance and relations to state law—501 was the compromise. Rules of professional responsibility require that confidentially and secrets be preserved—prevents disclosure where privilege does not apply. 4. with respect to an element of a claim or defense as to which State law supplies the rule of decision. government. However. lawyer – client ONLY. Ask. ATTORNEY-CLIENT PRIVILEGE i. US v. State.a. Grant—drugs & firearms and failure to appear. 6th Amendment right to counsel in criminal cases may create some barrier to gov’t interference. Trial judge excludes as NOT inconsistent. ii. 2. ABSOLUTE (no balancing or need req’d). 608 Problem 1. Except when the gov’t seeks to compel discoulsure of information there is no occasion to claim privilege. Rule 501. in civil actions and proceedings. A-C Privilege = communications from client to lawyer & reverse. ANY LEGAL advice. 89 . 501: 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. person. General Rule i. Work Product 1. State. Δ offered affidavit from declarant in Jamaica (where he’d been deported) that says Δ had no knowledge of deal and made up Δ as partner. 806 seeks to have opponent as well off re: impeachment as if declarant testified 2. PRIVILEGE A. who HOLDS privilege. iii. CANNOT impeach w/ prior bad acst if declarant is not present to admit them. iii. 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. ONLY the HOLDER may claim or waive privilege b. person. the privilege of a witness. the privilege of a witness. PRIVILEGES GENERALLY i. XVI.
trust. 90 . Work Product = any work generated for litigation (not just communications). e. Organization = corporation. unincorporated association. regardless of whether claims are by testate or intestate succession or by inter vivos transaction. Privileged Person = client that client’s lawyer or agent or either who is reasonably necessary to facilitate communications between the two. Lawyers may employ assistants. 7. Communication = any expression or through which privileged person intends on conveying info to another privileged person or any record containing such an expression. etc. Lawyer = person who is authorized to practice alw in any domestic or foreign jurisdiction or whom a client reasonably believes to be a lawyer. Joint Representation & Common Interests—privilege applies against 3rd parties BUT unless joint client aggress privilege does not apply against each other. business advice. anybody’s work for client covered. NOT absolute. b. partnership. 8. client relies on privilege and privilege only applies to what client communicates in reliance on privilege. Communications to agents outside lawyer or lawyer’s agent NOT privileged. 2. 10. In confidence = if at the time of the communication the communicating person reasonably believes that no one except a privileged person will learn the contents of the communication. 6. NO Waiver by showing to 3rd. 9. 5. iv. Definitions a. etc. IF client hires expert. Representative of client not so clear outside corporate seeting. estate etc. 3. paralegals. 3. 2. Costs of Privilege 1. Claimants through same deceased client—communication relevant to an issue between parties who claim through same deceased client. Advisory Committee Draft 1. General Rule—protects confidential communication made for purpose of obtaining or providing legal services. General Principles 1.2. w/in P. v. ONLY client making communication may WAIVE. d. NO privilege generally. Lawyers may employ experts w/in P. secretaries. 4. Client = person or organization that consults a lawyer to obtain professional legal services. Would clients confide in lawyers absence privilege? no one knows. requires ANTICIPATION of litigation. f. Corporate Privilege—agents speak w/in scope of agency or employment to privileged person. need to know for sharing w/ corporation. c. Privilege ONLY protects that which it creates. 11. iii. Key = lawyer tells client that communications are privileged. ONLY LEGAL SERVICES—not tax returns.
Privileged B/C = a. but employee cannot waive privilege for the company. c. exception if client uses advice to commit crime or fraud regardless of original purpose. ii. lawyer must tell employees that the CLIENT is the company—otherwise creates joint client situation (where both must consent to waiver). Rationale—testator would want matter resolved accurately AND ONLY attorney may have info. info needed from employees. Woodruff. Breach of duty by lawyer or client—as to issue relevant to an issue of breach of duty can disclose…must be able to disclose client owes $ and in malpractice must be able to have Δ. 13. 15. h.a. when client tells lawyer—this is protected. Attorney mental processes receive special work product protection. REJECTS control group approach—BROAD definition of “client. e. Communications directed at legal advice ONLY. business advice may not be legal. a. Privilege ONLY protects that which was created in reliance on it. c. communications made at request of company. documents created outside A-C relationship NOT protected. i. b. When interviewing employees. b. what lawyer OBSERVES NOT privileged. Limits on Privilege a. Federal law on A-C privilege. Lawyers CANNOT a. g. UpJohn v. threaten witnesses. 4. employees were aware company was seeking legal advice. matters w/in scope of duties. 14. Clients cannot take physical evidence and hide as privileged. to secure legal advice. 6. NO privilege if attempt to commit FRAUD or CRIME. 91 . b. 2. Facts know = NOT privileged. NO immunity for answering simply b/c witness confided in lawyer— facts are always fair game. Protected Communication a. d. suborn perjury. 8. b. Company can WAIVE privilege for employee. f. Witnesses can be called before grand jury and asked if paid bribes. vi. ONLY communications NOT facts protected. e. US 1. 5. hide evidence. 12. a. what lawyer HEARS IS privileged. ID of client and $ paid = NOT privileged. that will permit accurate resolution. d. 7. if client creates new documents for lawyer c. US v.” 3. tax prep not privileged. i. Lawyer’s trip to SEE body NOT privileged.
In re Lindsey—attorney in office of president called federal grand jury. Exceptions: 92 . When shareholder brings derivative action. At trial.b. a. dates of meetings. 6. Requirement: Valid Marriage 4. Privilege & Shareholder Litigation 1. b. HOLDER: WITNESS (not Δ) (even if gov’t pressure b/c arrested as material witness under Trammel) 3. waiver will be subject to SUBJECT MATTER waiver. 2. not when hear about it after. Waiver occurs by DISCLOSURE a. Scope of waiver a. MARITAL PRIVILEGE i. waiver will be more LIMITED. too bad. no privilege for gov’t lawyers when grand jury seeks info regarding possible crime. 5. viii. repetition of facts NOT waiver unless it is revealed that the same facts were communicated to counsel. But more culpability approach. Waiver by defense—advise of counsel 7. D. criminal cases ONLY 2. court suggests private advice by deputy white house counsel and assistant to president not privileged. Privilege & Government Attorneys 1. Waiver 1. Spousal Immunity 1. Some courts take a strict liability approach—if you fuck up. Selected waiver is generally prohibited. The HOLDER has the power to waive. Swidler & Berlin v. May extend to other fiduciary relationships x. privilege survives death. executive branch employees must report crimes. b. fees not privileged. Privilege and the Death of the Client 1. Crime-Fraud Exception. c. Privilege survives death. 4. MUST disclose what was said to attorney to have waiver. (Only when in on it. 3. Facts not privileged—client’s name. Inadvertent waiver a.) vii. Garner v. US (1998)—grand jury subpoenas notes of lawyer’s meeting w/ client. no absolute privilege for corporation b/c shareholders own the corporation. b. Whoever governs corporation has power to waive. US. Executive branch employees must report crimes. ix. Purpose: Protect Marriage 5. Wolfinbarger 2. Before trial. Duration: As long as Married 6.
b. XVII. Most states have statutory privilege b/c of PRIVACY. US). Rationale—no need to encourage medical treatment. Requires: Valid Marriage AND Confidential Communication (presence of 3rd party invalidates) 4. Protected by ATTORNEY-CLIENT PRIVILEGE? (Absolute privilege) i. NOTE—company can waive privilege for subordinate BUT subordinate cannot waive privilege for company. ii. P. Exceptions when medical condition is at issue. v. broad definition of client—includes subordinates in company BUT NOT independent contractors (Upjohn Co.a. f. Psychotherapist-Patient Privilege i. Jaffe v. Doctor-Patient Privilege i. ALL cases. Court rejects balancing approach. AND to an attorney/subordinate acting as such? 93 . Duration: Forever 7. Said by client or someone seeking to be a client? 1. learned 5. Redmond—police officer shots and kills Δ and goes to social worker. v. Joint criminal liability c. Fed. d. Holder: BOTH 3. (Civil Procedure Privileges Checklist) Is the communication/document privileged? a. Marital Communications 1. 2. 3. 26 (c)—protective orders can protect against harassment. crimes against family b. Exceptions a. NO general doctor-patient privilege in federal court. iii. iv. 2. Purpose: Protect communication 6. crimes against family joint criminal activity furtherance of crime or fraud extended separation ii. social worker talks NOT admissible b/c privileged. Absolute privilege applies to social workers and other mental health workers. c. Civ. Relies on unenacted 504 and all 50 states have some form of privilege. regarding LEGAL COMMUNICATION and not just facts? ii. R. furtherance of crime or fraud (NOT the same as joint participation) e. Protects—only communications NOT all info.
Stuckey) 94 .iii. AND without the presence of strangers? AND for the purposes of legal advice? AND not to commit a fraud or tort? AND claimed (not waived)? 1. iv. v. lower level employee who shares with in-house counsel no A-C privilege if corporation waives b/c not employee’s attorney (United States v. vi.
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