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a. What Info Let In i. To determine what info we are going to let jury consider when deciding outcome of case b. Evidence Rules i. Keeps out evidence that would lead jury astray
a. Obstacle Course i. Hurdles that a piece of evidence must get over before being admissible b. HEAR PA BROWN i. Hear = Hearsay ii. PA = Privileges & Authentication iii. Brown = Best Evidence Rule – Relevance – Opinion Testimony – Witnesses
b. Conditions for Admitting Evidence I. Relevancy – Rule 401
a. Definition – 2 Parts i. “Evidence having any tendency to make the existence of a Material or Consequential Fact more probable or less probable than it would be w/o the evidence” b. Relevant i. Describes relationship between an item of evidence and proposition it is offered to prove (logical) 1. If an item of evidence tends to prove or disprove a fact that is of consequence to the case it is relevant to that proposition ii. Effect on Jury 1. Rationally lead a juror to think that it is more likely or less likely that ∆ is guilty then they thought before they heard that piece of evidence iii. A Brick 1. Offered evidence adds 1 brink to the wall of establishing the proposition c. Materiality Charge i. Describes the relationship between that proposition and the issues in Material the case Proposition 1. Elements of charge Relevant 2. Fact that the party is trying to prove must relate to the legal Offered Evidence issues in the case
II. Admissibility of Relevant Evidence
a. RELEVANT EVIDENCE ADMISSIBLE - RULE 402 i. Standard 1. Low ii. Admissible 1. All relevant evidence, if offered, is admissible UNLESS Excluded by a rule a. Judicial Discretion b. Public Policy Concerns c. Character Evidence d. Hearsay Evidence iii. Excluded 1. Evidence that is not relevant is not admissible 2. If evidence is not probative of proposition (relevancy) 3. Proposition is not provable in the case (materiality)
4. Constitutional reasons a. Violation of privilege against self incrimination b. Right to counsel c. Due process d. Confrontation clause
III. Conditional Relevance
a. Huddleston Standard - RULE 104(b) i. Applies 1. Relevancy of evidence offered depends on the existence of another fact that hasn’t been proven yet ii. Procedure 1. Judge will determine the admissibility “screen” offered evidence, considering all evidence in the case iii. Standard of Proof 1. Judge must be convinced that the evidence offered (foundation evidence), is strong enough that a reasonable jury could find by a preponderance of the evidence, that the conditional fact was true (other crime was committed) iv. Type applicable in 1. Personal Knowledge 2. Authentication 3. Character Evidence offered to prove other acts
c. EXCLUSION OF RELEVANT EVIDENCE – JUDICIAL DISCRETION I. Overview - Rule 403
a. Rationale i. Accuracy 1. Even if evidence is probative, it may interfere w/jury fact finding mission b. Definition i. " its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, needless presentation of cumulative evidence" c. Procedure i. Jude determines if the evidence Probative Value 1. Probative Value - Substantially Outweighs - Risks
II. Probative Value
a. If the proposition itself is one provable in the case OR Forms a further link in a chain of proof i. The final proposition of which is probable, then the offered evidence has probative value b. The value in aiding jury in their decision
Unfair Prejudice Mislead Jury Confusion Issue Waste Time Undue Delay Cumulative Evi
III. Identify Dangers
a. Affects integrity of fact finding process b. Rationale i. Exclude b/c concerned jury is incapable of properly evaluating evidence 1. Usually base their decision on sympathies or emotional basis c. Unfair Prejudice i. Photo, Video, Sound Recordings Evidence (p.78) 1. Can’t offer Inflammatory evidence of human injuries, corpse, murder weapon, enlarged or colored pictures 2. Risk
a. Jury may feel angry that this happened to victim so they will give more weight to photo than evidence and could convict ∆ even if not guilty ii. Past Crimes 1. Can’t offer evidence to infer character (p.11) a. Can use to prove motive, opportunity, intent, preparation 2. Risk a. Jury will judge ∆ on his prior acts and not the one in question 3. Even w/limiting instruction evidence may be used improperly a. Risk that jury will use limiting instruction for prohibited hearsay inference rather than for non hearsay purpose that is offered as rationale for admissibility = excluded iii. Admissions by Conduct 1. Evidence that ∆ Intimated W, False Statement, Escape, Bribe W, Refusal to provide handwriting, Use of Alias, Flight a. If these rules didn’t exclude them they too would be an admission by conduct i. Offer to Compromise (p.7) ii. Medical Payment (p.10) iii. Subsequent Remedial Act (p.5) 2. Consciousness of Guilt a. Adverse Inference is drawn i. ∆’s behavior to flight ii. From Flight to Consciousness of Guilt iii. From Consciousness of Guilt to Consciousness of Guilt about current charge iv. From Crime charged b. Reason to Exclude - Lacks Probative Value i. ∆ may not feel guilty about the crime charged, but feels guilty about an earlier crime ii. If a long time has passed between the crime and the flight, the evidence of guilty consciousness is weak 3. Risk a. Jury may infer that ∆ is guilty of this crime b/c they did a bad act iv. Similar Happenings 1. Probative value a. Needs to be substantially similarity between prior incident and current b. Can Offer i. Notice ii. Shows party knew or had reasonable opportunity to know about a dangerous condition iii. Dangerousness iv. Shows existence of dangerous condition v. Misrepresentations – K – Sale of Similar Property (to show value) v. Character Evidence (p.11) 1. Evidence of relevant character trait offered so jury will INFER that actor acted in conformity w/that trait in current change vi. Probabilities 1. A trial by mathematics 2. Reason to Exclude a. Lacks foundation for the probabilities b. No proof of independence among the characteristics c. These probabilities are really hard for a jury to resist d. This whole exercise assumes that these characteristics are those of perpetrators d. Confusion of Issues & Mislead Jury i. Past Crime - Similar Crime - Scientific - Polygraph - Statistics - Character Evidence (p.11) ii. If jury is confused it can be mislead
1. Risk a. Need to have a trial w/in a trial b. Jury may confuse facts of one crime w/current charge c. Distract jury from main issue in question
IV. Identify Considerations
a. Affects efficiency of court b. Rationale i. Exclude to conserve judicial resources (time) c. Undue Delay – Waste of Time – Needless Presentation of Cumulative Evidence i. Risk 1. Evidence already presented, Trial w/in Trial a. Visits to bank, all jurors know what a bank looks like ii. Character Evidence (p.11) iii. Criminal Case 1. Constitutional issue – ∆ has right to present case and need not bring in tons of W 2. Judge must be cautious in this area
V. Balance Test
a. General i. View evidence in favor of proponent for admissibility ii. Close call - offsets the probative value = excluded iii. Special rules govern certain types of circumstantial evidence which have been found over the years to be so misleading or so prejudicial that they should be categorically excluded without a case-by-case balancing of probative value against prejudice b. Probative Value Evidence Offered vs. Harms Identified i. Probative Value 1. How probative evidence is of material fact a. Chain of Inference 2. How seriously disputed material evidence is 3. Necessity (Probative Worth of Offered Evidence) 4. How clearly offered evidence has been proven 5. Is there any less prejudicial evidence available 6. Effectiveness of Limiting Instructions 7. Stipulations ii. Harm 1. How likely evidence will contribute to an improperly based jury verdict 2. Extent evidence will distract jury from central issue of trial 3. How time consuming is it prove prior conduct 4. Similarity of prior act to current charge 5. Closeness in time to current charge 6. Frequency of prior act 7. Presence or lack of intervening circumstances iii. Reduce Harms 1. Limiting Instructions a. Reduce unfair prejudice and confusion of issues b. Applies i. When evidence has limited admissibility 1. Offered for 1 purpose but not another c. Procedure i. Party opposing evidence will ask judge to give instruction 1. To instruct jury that they can only consider evidence as 1 kind ii. If opposing party fails to ask, jury can use evidence for anything they want!
EXCLUSION OF RELEVANT EVIDENCE – POLICY CONCERN (MEN R Guilty) I. Reasons to allow in evidence rather than stipulate i. Procedure 5 . Need to tell a colorful story with descriptive richness ii. If 2 pieces of evidence available on same point. Prior crime evidence may “implicate the law’s moral underpinnings and convince jurors that a guilty verdict would be morally reasonable” (this is more convincing when the prior is murder rather than tax fraud) 3. By incorporating it into jury’s regular instruction package ii. Stipulation (Old chief) a. By eliminating need to introduce other evidence to prove prior crime. Reduces possibility that jury will be inappropriately influenced from it 1. Preventing gaps in the story which the jury will blame on the prosecution iii. Balance Weight i. Especially those not charged in b. Exclude Subsequent Remedial Measures – Rule 407 a. the one less prejudicial should come in d. Give consideration to probable effectiveness or lack of effectiveness of limiting instruction e. Govn’t can accept stipulation in whole or part c. b/c ∆ will admit did prior crime BUT stipulate to say ∆ won’t say what kind it was 1. Alternative Proof a. Best way to use i. Especially in insurance suit 2.d. Reduce unfair prejudice on Prior Crimes i.
Not discourage them from doing this b. Like negligence or culpable conduct ii.i. Maybe person who made repair are humane do-gooders and don’t want people hurt b. Balance Test – 403 1. Asserting that method used was somewhat preferable than alterative i. Remedial measures made After accident. NOT . Public Policy 1. COA: Π alleges design is unreasonably dangerous 1. Disciplinary Action against Employee who Caused Injury i. Negligence – Culpable Conduct – Product Defect – Need for Warning a. Defect in a Product or Design 2. Many other reasons why company will make subsequent changes 6 . If these subsequent remedies were admissible to prove their guilt then people wouldn’t try to further safety b. Any measure that would have made accident less likely to occur if it had been in place before accident a. “it is reasonably safe” ii. Exclude i. “method chosen at time seemed to be more practicable or safer” iv. Reducing possible hazard to consumer should be encouraged ii. ∆ suggests that original design is acceptable v. improving a product 2. Drug Warnings d. Changes in Company Rules e. Limiting Instruction a. to no longer be disputed b/c it is taken out of the picture of the case i. If evidence of subsequent repair admissible it may discourage company from voluntarily making repairs. Modification in Product Design c. Rationale i. Change Mind i. Encourage people to take steps in furtherance of added safety i. Need for a Warning or Instruction b. Argues about tradeoffs involved in taking precautionary measures b. BUT Problems w/relevance alone will not cause exclusion 2. ∆ was using due care at time of accident 2. Strict Liability (Product Liability) a. Offered to Prove 1. Probative Value a. Public Policy a. If ∆ changes mind about safeness of something after accident the fact that testimony is different doesn’t establish that ∆ was dishonest c. Rationale 4 Rule 1. may cause “other purpose” to no longer be available 2. Not likely that repairing something is probative of element of case i. will case the issue stipulated to. voluntarily by ∆ 1. Stipulation a. Due Care i. Defective Product Suit i. “not defective” iii. Relevant 1.Post accident Reviews & Studies ii. Installation of Safety Devices b. Discharge of Employees f. Limit use of repair evidence to purpose offered for ii.
∆ Raises . Admission by conduct (p. Π impeach W testimony AND address feasibility of alternatives since feasibility was introduced by ∆ iii. Avoid another injury – better way has been discovered – implement idea or plan that was conceived before accident – admission of error c.claims not negligent or culpable b/c i. “nothing more could have been done” 3. 3rd Party Repair a. There wasn’t a safer way or impractical 1. Important in this type of case to keep jury attention on products condition or design at time of accident and not take into consideration subsequent changes c. Social Policy 1. if in Dispute 1. Subsequent repair undercuts claim of non-responsibility 2. that ∆ now says wouldn’t have helped before 1. Π Rebut i. Remedial measures 1. Just b/c 3rd party does repair doesn’t expose 3rd party to liability so encourage or discourage 3rd party from making repairs ii. Rationale i. 3) a. 3rd parties repair does not create liability for ∆ b/c it isn’t an admission of guilt so isn’t relevant to ∆’s conduct ii. “there is no safer way to handle the situation” 3. How i. Show W prior testimony was dishonest ii. Offered to Prove. Meaning issue is who was responsible party b. “The measure wouldn’t have helped” 2. Procedure i. Impeachment by Contradiction 1. Proof Of Ownership or Control a.a. Cast Doubt on W Testimony Credibility 1.Rule 408 (Civil) a. Control is disputed i. “so if it was the safest design possible was it modified after the accident?” b. Demonstrates an awareness by ∆ that there really was a hazard b. “all reasonable precaution were taken” 4. Other Purposes. Can’t use to Establish Culpability II. Admissible i. 403 – Balance Test 7 . Feasibility of Precautionary Measures a. If 3rd party does repair AFTER accident can be admissible b. Evidence admissible that ∆ implemented a safer way following accident. Harm i. Rationale i. Impeachment (not disputed) (p. Relevance 1. Overlap w/other Purposes i. Π uses to rebut claim of ∆ “there was no hazard” a. Exclude Negotiation Settlements . 25) a.
Value of Claim or Amount of Damages of Claim a. we will offer you $2k” c. amount) 1. Evidence offer by Π or ∆ iv. Statements of Fact & Admission a. Used to prove liability 2. Π sues A & B. Doesn’t undermine rationale of rule 2. Public Policy a. Limiting Instruction 1. settlement between Π and A is inadmissible at B’s trial if offered to prove liability of B c. Evidence of Offer. Evidence of offers is irrelevant b/c offer bay be motivated by a desire for peace rather than from a concession of admission b. 17) a. Validity of this will vary as amount of offer varies in relation to size of claim b. w/o this rule then making an offer would be an admission of a party opponent or an authorized admission (Rule 801(d)(2)(A) b. Admissible i. NOT Waive protection of rule ii. Even if made during negotiation but separate from settlement offer i. Can NOT admit evidence of your own settlement ii. “I was drunk that night” 2. EX i. Π sues A & B. evidence of settlement between Π and A admissible to show bias 2. Exclude i. To show they recognize their potential liability but other party wasn’t willing to settle iii. Policy of encouraging settlements vs. invalidity. Allows complete candor between parties in negotiations 2. Rationale 1. Negating a Undue Delay of 403 Balance i. 25) i. Settlement discouraged if either side were deterred from making offers for fear that they would be admitted in evidence d. Settlement may be trade off for W favorable testimony b. A testifies as W for Π at B’s trial. if Disputed 1. Prior Inconsistent Statement or Contradiction 1. “my client ran the red light. need for evaluating credibility of W ii. Purpose 1. Typically Settlement w/3rd Person b. Π and ∆ can agree that claim has merit and agree to amount owed and only discussing when ∆ can pay settlement amount ii. Evidence of Conduct or Statements made in Course of Negotiating Claim 1. liability. Probative Value a.If Offered to Prove.1. Rebut Claim a. NO Impeachment (p. Evidence Offered for Other Purpose (than validity. Validity (Liability) or Invalidity a. Promise to or Acceptance to Settle. Party Want to Offer Evidence of Own Settlement i. Evidence if there is NO Dispute as to Above 1. Settlement of disputes w/o litigation is good c. Typically Settlement w/3rd Person i. Impeachment by Proving W Bias or Prejudice (p. Party dragged out settlement negotiations and then pulled out at last minute 8 . EX 1. EX 1. If evidence admitted for another purpose iii.
Evidence of 1. In favor of encouraging plea bargains b/c of overcrowded prisons 2. If ∆ worried any statements made during plea negotiations might be used to impeach them at trial ∆ might not enter plea negotiations d. not statements. Note: although rule doesn’t say this. Factual Admissions by ∆ & Fact of Guilty Plea ii. Statements Made in Negotiating Pleas a. Document i. ∆’s liberty is on the line ii. other sues again to enforce K III. Statements made by ∆ in Guilty Plea a. If document given to other party during settlement negotiations and is or could be found another way: discovery or other technique – separate from settlement negotiation b.3. Rationale i. Parties come to settlement. Offer to plead guilty has little probative value on issue of guilt a. Fact i. If fact revealed during settlement negotiations party can prove fact by other way separate from settlement admission 4. Guilty Plea = to Settlement ii. Evidence bared UNLESS specifically admitted b. Civil suit arising out of same accident 2. Admissible i. Above Statements if 9 . can be used against ∆ in later litigation ii. Offered To Prove 1. ∆ Culpability of Guilt or Consciousness of Guilt a. Enforce Terms of Settlement Agreement a. Can NOT be used against ∆ in trial for charged crime 3. When judge is determining if ∆ entered into plea of guilty voluntarily 4. Fact of it.“No contest” a. Offered Against Prosecutor a. some courts have ignored string reading of this rule b. both sign = enforceable like K b. Exclude i. Plea of Nolo Contendere . b/c ∆ that fears conviction may be willing to plead guilty to get lesser sentence even if innocent c. 25) i. Relevance 1. Rationale 1. Guilty Plea NOT Withdrawn 1. Exclude Guilty Pleas – Rule 410 (Civil or Criminal) a. Generally i. To Impeach ∆ (p. ∆ is able to withdraw before judgment was entered b. Against ∆ who made plea 1. To Prosecutor and Don’t result in guilty plea or one later withdrawn ii. NOT admissible in ANY subsequent criminal or civil litigation iii. Pre-existing Info Offered During Negotiation a. Public Policy 1. Not allowed ∆ to offer evidence that prosecutor offered to drop a charge during plea discussions against prosecutor iv. Party doesn’t pay. Guilty Plea later Withdrawn a.
Procedure 10 . EX: Rehabilitation iii.Correction Official . Made when Offering to Pay Medical Expenses a. A good Samaritan payment or offer is made from humane impulses and not from an admission of liability. ∆ Introduces Statement Made during Negotiations a. Perjury or False Statement Criminal Hearing a. EX a. Often Prosecutor will ask ∆ to waive all constitutional rights before giving negotiation discussions so they can use ∆ statements against them at trial 2. 71) a.IRS Agent IV. Elements i. Exclude Payment of Medical Expenses – Rule 409 a. EXCLUDE RELEVANT EVIDENCE – ACCURACY & FACT FINDING CONCERN I. Admission i. Tactic a. ∆ introduces statement ∆ believes will prove his innocence. IF Π statements “ought in fairness be considered together” w/∆ b. Exclude Liability Insurance – Rule 411 (Civil) a. on record. Communication is not essential for a payment or offer of payment to be made but expected for there to be factual statements made incidental to payment/offer e. made during plea bargain i. Evidence of Admissions of Liability 1. To Prove Liability for Injury c. “I’m paying your medical expenses b/c if I hadn’t been drunk that night. Other than fact of payment 2. Statements made by ∆ under oath. Public Policy i. Evidence of Statements Furnishing – Offering – Promising to Pay 1. Rationale a. Impeachment (p. Made to Police Officer . if allowed admission of these it could discourage assistance to injured person b. Exclude i. “It was all my fault I’ll pay your hospital bills” i. ∆ Knowingly and Voluntarily enters into agreement to waive b. Can be used against ∆ when in separate perjury hearing 4. Prevent ∆ from taking advantage of rule by introducing a statement that helps prove ∆ innocence when taken out of context 3. Π can later introduce other statements made during same discussion to impeach him c. Prosecutor can use statements ∆ made to impeach them (p. Statements Made in Negotiating Pleas NOT to Prosecutor a. 25) i. in presence of counsel i.1. Voluntary offer of assistance made upon impulse of kindness or sympathy not an admission of culpable causation ii. Rationale i. 25) 1. All my fault = admissible 3. Result i. Due to Injury iv. I wouldn’t been driving on shoulder and hit you” b. ∆ Waive Protection (p. Medical – Hospital – Similar Expenses 1.
To prove party had ownership or control thus they had responsibility 3. Π offers evidence to suggest that b/c ∆ was insured. People who have insurance are more likely to be prudent and cautious than people who drive around uninsured. Jury may unfairly penalize insurance companies for their deep pockets a. Offered to Prove Person Ability or Inability to Pay a Judgment d. Character describes one’s disposition in respect to general traits and generally NOT admissible to prove party has predisposition 11 . Rationale i. If admission of liability is in same statement as admission of insurance and can’t be taken apart w/o lessening value of admission of liability f. 2 statements made together a. Inquire into ∆ and adjustor relationship. COULD ARGUE 1. EXCLUDE RELEVANT EVIDENCE – CHARACTER – ACCURACY & FACT FIND CONCERN I. Way for existence of insurance to come out at trial ii. If party had insurance then they may be less likely to be worried about the consequences of her reckless driving since someone else would be paying for it. Π can then cross examine adjustor 1. Evidence that a person Was or Was Not Insured Against Liability ii. Impeachment – Prove Bias or Prejudice of W (p.i. Offered by Π or ∆ ii. may tend to prove that she drove negligently 2. Ownership & Control a. Jury may feel sympathy for ∆ who has to pay out of own pocket and interferes w/evaluation of evidence iii. Very Little Probative Value 1. Admissible i. Evidence that a person Was or Was Not Insured Against Liability ii. Adjustor is impeachable for bias or prejudice b/c an employee of company has a financial interest at stake 4. therefore evidence that party was insured can be offered to prove that party was driving safely on the date in question c. Party had insurance that covered another person can be offered 2. If Disputed 1. EX i. Character Evidence Generally NOT Admissible – Rule 404 a. Limiting Instruction iii. Offered to Prove Person Acted w/ 1. 25) a. Offered to Prove Other Purpose. Exclude i. sources of possible bias 2. Insurance adjustor interviews Π and called by ∆ at trial to impeach Π w/prior inconsistent statement 1. Proof of Agency a. Stipulate b. ∆ offers evidence to show that b/c ∆ did not have insurance ∆ had incentive to be careful iii. ∆ was probably careless b. Unfair Prejudice 1. Fault – Negligently – Wrongfully – Contributory Negligence a. Invites higher awards than justified 2. Whether someone has insurance coverage reveals little about whether they were acting negligently on a particular occasion ii.
Evidence of prior act must be strong enough that a jury could reasonably find ∆ committed prior act by a preponderance of the evidence iii. Rationale i. Jury will give excessive weight to record of crime and allow it to bear too strongly on present charge ii. So jury won’t misapply evidence and infer prior specific act actually did occur 2. Relationship present b/c essential element i. Low Probative Value a. Character when Character is “In Issue” (element of COA or defense) 2.104(b) Huddleston Standard (p. Jury will convict b/c this type of offense deserves punishment even if ∆ isn’t guilty c. Stipulation and make prohibited character inference iv. The likelihood that b/c a person has shown the existence of trait before. Probative value of evidence vs. EXCEPTION 1. any act thereafter the person will likely act like it again b. Must be relationship between purpose and essential element of charge a. Necessity a. Test Analysis i. Π can ONLY ask if they have good faith belief that the specific act actually occurred 12 .i. Π must with a degree of certainty offer some evidence to show ∆ was involved in prior acts 2. Propensity of How a Person Acted 1. ∆ & Victim Character – MIAMI COP K – Habit – Credibility of W b. Risk jury will ignore Limiting. Motive – Opportunity – Plan ii. Preventative Conviction 1. Limiting Instruction a. PROTECTIONS Provided to ∆ 1. Jury will punish ∆ for bad acts that they aren’t on trial for b/c sort of person that would do something like that 2. Identify a Material Issue – 401(p. 2) 1. for purpose of drawing inference that ∆ has criminal propensity. Admissible b/c this is only evidence available on essential element b. Degree of Certainty a. To use prior behaviors (good or bad). Good Faith Belief on Cross a. b/c jury is unlikely to understand limiting instruction we give ∆ another protection 3. Identity – Intent – Knowledge b. Court examines all evidence a. Risk of Prejudice High a. do you know) i. 1) 1. Evidence of relevant character trait offered so jury will INFER that actor acted in conformity w/that trait in current change i. Unlike propensity evidence . making it more likely ∆ committed act 2. Establish relationship i. When Π cross ∆s W (have you heard.there is other-better-more direct evidence of the crime ii. Standard (conditional relevance) i. Determine ∆ Involvement . similar crimes. Character Directly “In Issue” 1. 403 Balance Test 1.
Foundation for W 2. To prove persons conduct in particular situation b. What? i. Methods to Prove i. ∆ claims it → Π can use evidence to show existence of ∆ predisposed to commit current charge → no entrapment c. defense i. Child Custody Dispute a. Tends to prove what kind of person someone is ii. bring in evidence on ∆ Bad Character on same trait 1. Evidence offered as circumstantial evidence. Person’s general character or trait is essential element of charge. Negligent Entrustment or Hiring Tort a. Why ∆ must offer 1st? i. Attempts to create jury inference that ∆ wouldn’t commit act and to rebut bad character trait that is implied from charge b. Peaceful character in crimes of violence ii. Π Rebuttal W on Direct 13 . Entrapment Defense a. Offered by Either Party i. NO 403 Balance Test III. Libel a. Reputation – Opinion 1. Mental competency to make a will b. Civil Case 1. Character of ∆ (Criminal) i. since ∆ character isn’t directly in issue 1. Check book to see if in there 4. Specific Acts 1. Defamation. ∆ was negligent in doing so → knew or should have known that 3rd person had poor character for care 2. claim. ∆ had change to talk about good character and has OPENED the DOOR for Π to bring in specific instances iii. Π could convince jury that ∆ is bad person and jury may convict regardless of guilt of current charge ii. Π and ∆ show good or bad traits for parents 5. Truthful character for Perjury b. Direct of Reputation & Opinion W a. Criminal Case 1.Propensity of Persons Conduct a. ∆ offers evidence of own Good Character 1.Character is Directly “In Issue” a. Honest character for theft iii. Wrongful Death a. Direct & Cross Examination iii.II. ∆ defense is statement about Π was truthful 3. NOW ∆ HAS PRICE TO PAY!!!! 1. Mental Status for Will a. ∆ entrusted an instrumentality to 3rd person → injured Π b. Π responds. EXCEPTION . EXCEPTION . Rebuttal of truth defense in libel or slander case i. Use defense of insanity ii.
To test W knowledge of ∆ character 3. Limiting Instructions b. HAVE YOU HEARD?? DO YOU KNOW??? ii.Notice a. 21) i. even if never convicted for ANYTHING a. ∆ offers evidence of victim Bad Character 1. Π offers. NOW ∆ HAS PRICE TO PAY!!!! 1. Attempts to infer that if victim acted in conformity w/character trait then victim would be at fault in current charge b. Direct of Reputation & Opinion W a. Π Direct of W ii. Specific Instances i. so jury will infer ∆ acted in conformity this time i. Victim 1st aggressor but ∆ had to take Preemptive Strike i. Effect on listeners state of mind (see hearsay) ii. ∆ responds a. Protection Provided to ∆ a. Reputation & Opinion (p. Π must have Good Faith Belief in asking specific instances iv. Damages for either 2.a. Cross Examination of ∆ W (CHARACTER W only) a. Reputation & Opinion i. Type of cases 1. Specific Instances of similar offenses ∆ committed For ANY relevant purpose i. EXCEPTION – ∆ Charged w/Sexual Assault . Remoteness 1. 21) b. Court allowed conduct admitted assault that happened 16-20 years earlier b.Rule 413 &414 (Criminal & Civil) 1. Specific Instances i. Sexual Assault or Child Molestation 2. ∆ prior sexual assaults. HAVE YOU HEARD?? DO YOU KNOW?? 14 . b/c reasonably feared for safety ii. To infer ∆ acted conformity w/past behavior 2. To show ∆’s bad Reputation or Opinion 2. About ∆’s prior bad acts relating to character trait 1. Statements of W or summary of expected testimony 3. Remoteness of prior sexual assault diminishes its probative value a. Admissible a. brings in evidence of Victim Good Character or ∆ Bad Character 1. Victim 1st aggressor and ∆ only acted in response i. Procedure . Character of Victim (Criminal) i. Π must provide ∆ 15 day notice b. To Prove ∆ character. ∆ has OPENED the DOOR for Π to bring in specific instances iii. ∆ Direct W b. 2 Theories of Self Defense (Homicide & Assault) a. Specific Instances (p. Cross Examination of ∆ W(CHARACTER W only) (very devastating!!!) a. Π Cross Examination 4. Limitation Rape Shield 2. Π responds. Relevant to ∆’s innocence i. Confrontation Clause Right c.
∆ . Rape Case – Rule 412 (p.sexual behavior between ∆ and victim to show Consent 1. to be confronted w/W against him a. Homicide Case (NOT Assault Case) i.source of semen. Rationale a. Exclude a. Victim Past Sexual Activity w/Others i.ii. To show alternative explanation or 3rd party rather than ∆ committed physical consequences or rape b. Other peoples experience with victim promiscuity ii. EXCEPTION . 17) 1. ∆ offers . Even though ∆ hasn’t presented such evidence 2.Reputation IF .If ∆ claims doesn’t know victim or never had sex w/ victim i. other physical injuries is by a 3rd party (p. Unreasonable for ∆ to base belief of consent on victims past sexual experiences w/3rd parties 3. Past Sexual Behavior i. Material 1. Avoids CC violation by allowing this exception (p. Showing Victim Good Character or ∆ has same trait as ∆ put on about Victim 1. Evidence of past sexual behavior irrelevant 4. Can NOT ask about other partners ii. Error! Bookmark not defined. Lifestyle or type of dress 2. Π offers – For any reason iii. Protect victim sexual privacy by discouraging tendency in rape cases to “try the victim” rather than ∆ b. Encourage reporting of rape c. Aid in truth finding process by excluding unduly inflammatory evidence b.Victim offers 5. Victim Past Sexual Activity w/∆ i. ∆ offer . Act must be very close to when ∆ incident occurred ii. Π . Prejudice a. Constitutionally Required i. Material 1. Opinion Testimony of Victim past sexual conduct iv. To show victim doesn’t always claim rape c. right. Disposition of Victim i. Victim isn’t there to tell her side of story iv.Specific Instances a. If excluding victim sexual behavior or disposition would violate ∆ constitutional rights then evidence admissible 1. ∆ has 6th Amend. Reputation & Opinion i. Physical conduct of victim ii. To show Victim’s Good Character b. Π Rebuttal W on Direct a. Establish essential element of current charge or defense a. Offer evidence of peaceful character of victim ii.Consent is element of crime for mental state b. pregnancy. Policy 1. disease.) 15 . 14) 1. Victim Habits b. General Reputation iii. EXCEPTION – Criminal Admissible .
Origin of semen. Evidence of prior repeated. To prove essential element of current charge or defense a. Opponent Rebuttal W 1. Prior Crimes – Bad Acts – Uncharged Offense 1. Reduces risk b/c jury doesn’t focus on ∆s subjective disposition. High standard d. See Impeachment IV. Other Purposes (Criminal & Civil) a. It shows the sheer improbability that ∆s 3 wives could all die in their tubs w/o foul play b. Rape Shield a.crime. Relevant i. Victim past sexual behavior w/∆ and w/others. Reasonableness of ∆’s belief of consent 4. HARM to ANY VICTIM i. “What are the chances that an innocent person would be charged falsely so many times?” if rarely… “it is then safe to infer that ∆ is not innocent” i. Proof of Bias/Motive of victim 2. Doctrine of Chances (Rex v. Smith) a. To Disprove element in question ii. Dangers i. Material 1. ∆ offer and cross examine 1. Π offers evidence of Specific Instances . Offered to Prove something other than character a. Π must provide ∆ notice Π will admit prior acts 2. Danger of unfair prejudice to ANY PARTY or b. Prior Sexual Behavior and Disposition of Victim IF i. 25) i. establish Motive and Plan c. To prove a 3rd party committed prior acts so 3rd party not ∆ committed current charge 2. Notice (Criminal) a. but rather compare situation w/statistical data or jury’s knowledge of everyday human experience 16 . To prove these effect current charge of ∆ ii. unusual acts that tend to show prior crime was committed my same person too 1.ii. Procedural 1. points to rebut Accidental. Impeach Witness (p. Embarrassment ii. ∆ Mental state of Consent 3. Victim child able to know about sexual acts due to prior rape not b/c of ∆ 6. EXCEPTION – Civil Admissible – Specific Instances a. Note 1. Probative value must substantially outweigh a. Relevant to Establish Elements of Current Charge MIAMI COP K i. Biased in favor of exclusion 2. Alternate Source of Knowledge a. Reverse Balance Test 1. sexual disposition. bad acts OR 1. Generally i.“Reverse Evidence” 1. pregnancy or disease iii. false accusations iii. ∆ offers evidence .
opportunity. Huddleston Standard 104(b) a. Court still allowed to exclude! b. Shows ∆ had motive to commit act so more likely ∆ did act than if ∆ had no motive ii. Π . Motive.3. Signature i. If some act by ∆ tends to show that ∆ had motive to commit current charge 1. But Danger still exists that jury may take evidence and bear it against character b. Material (probative) to i. “Signature” a. Establishes essential element of current charge 2. Shows if ∆ did act.Deny ∆ committed prior acts or ∆ had no such motive 3. ∆ did so intentionally. 403 Balance Test a. Method of prior crime must be Substantially probative of identity c. Π admit evidence ∆ previously charged w/murder and had outstanding warrant that ∆ knew about. that the conditional fact was true (other crime was committed) 5. preparation. ∆ must deny participation in crime ii. EX a. Evidence that ∆ committed similar crime using same distinctive method of committing crime as person who committed current charge 1. Judge must be convinced that evidence offered (foundation evidence). ∆ charged w/killing FBI agents. Material a. Conduct 1.Helps establish ∆’s Conduct and Intent a. Π offer 1. Murder case. Π must introduce enough evidence so… i. is strong enough that a reasonable jury could find by a preponderance of the evidence. ∆ had motive to fire at FBI b/c fearful of apprehension on warrant c. motive is probative of identity ii. ∆ . Identity i. Establishes essential element of charge c. purposefully. knowledge b. EX i. Relevance a. To establish ∆ identity when identity of person who committed act is truly in issue ii. Motive i. Justifies inference that if ∆ committed prior crimes then only ∆ could have done current iii. W testifies knew who ∆ was b/c ∆ sold W drugs before this instance and recognized ∆ face 17 . Rationale 1. Intent 1. evidence of ∆ affair w/victim wife admissible to establish motive. Don’t have heavy dangers like character evidence 2. Prior act by ∆ are so similar in modus operandi (method of operation) to crime charged that bear ∆ signature b. REMEMBER substantially similar acts usually have too high of danger! iii. Similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the ∆ was the actor 4. maliciously iii. Elements i.
Pregnancy or Disease 2. Offer evidence of prior similar act to show that ∆ had intent (∆ mental state) or negate. MUST Admit Current Charge iii. No risk of unfair prejudice to ∆ 3.Reverse Evidence 1. ∆ – Defense – didn’t have criminal intent a. Must admit current charge 4.∆ had mental state of current charge so was not accident or mistake 1. Material a. To establish existence of a larger Continuing Plan. Conspiracy that present charged is part of 1. Offer Innocent Explanation for current charge i. Elements a. ∆ . Determine precise method used in all crimes ii. to repeat same crime 1. Sexual Assault . Similarity so great extremely unlikely another person committed crime iv. Material a. EX a. Very close to propensity a. Prior act must be unusual or very similar a. Intent – Knowledge – Common Plan or Scheme e. Scheme. ∆ Defense . Π – both crimes Substantially Similar to show ∆’s Guilty state of mind in current a. Shows ∆ had or did not have state of mind to commit act so more probable ∆ did act ii. Harm a.Infers ∆ lacked state of mind to commit current charge 1. To prove a 3rd party committed prior acts and modus operandi so similar in prior and current that it was 3rd party who committed current charge and not ∆ a. Guilty state of mind of prior crime suggests guilty state of mind in crime charged i.Intent and Knowledge similar i.Origin of Semen. Π Rebut . claims self defense → evidence of prior burglaries does not indicate untruthfulness of self defense → does indicate untruthfulness if ∆ claims he was on victims window ledge b/c he was fleeing from muggers in the street f. ∆ murder charge. To establish current charge was or was not a mistake or accident 1. Absence of Mistake or Accident i. Essential element of current charge – Intent – Motive . Material (probative) to Conduct i. Elements i. This looks like propensity – fine line 3. ∆ must show that evidence has a tendency to negate ∆ guilt d. Methods must be so similar and unusual (uniquely different) enough to indicate signature iii. Intent i. ∆ knew what he was doing and intended to do so! 2.Identity 18 .2. Mode so similar in both crimes same person probably committed both b. Essential element in crime . Overcomes jury’s temptation to engage in propensity reasoning iv. Modus Operandi a. Prior conviction of same offense 2. Relevant a. Common Plan or Scheme i.
∆ committed another wrong as part of a plan or scheme to commit the charged act g. Prior acts will prove ∆ has specialized knowledge to commit current charge and others do not a. Similar to intent 2. specific skill or means to commit crime 3. ∆ stole a car day before robbing bank . unfairly prejudicial. proof ∆ was seen in mailroom admissible to show ∆’s opportunity to steal package h. ∆ not charged for other murders. Opportunity i.Intent . ∆ charged w/murder by insulin poisoning.Knowingly receiving stolen goods iii. waste of time (mini trial). special knowledge/skill. Π offers evidence that a. ∆’s Objection to Evidence a. To establish prior act was done in preparation and done to facilitate commission of current charged 1. Essential element of current charge – Intent – Knowledge – Plan .Negate possibility act was accident or mistake 2. Attorney can shrink size of pool of potential offenders by using evidence of knowledge. Misleading. Material a. To establish ∆ knowledge. Prove ∆ had knowledge of 3rd party prior acts and did nothing about knowledge 2. hacked into computer company ordered computers for free. EX a. EX a. Π – offer prior act . Probative Value Increases i. To establish ∆ had access to or was present at scene of crime 1. Computer hacker. ∆ On Notice of 3 Party Behavior 1. EX a. capacity to commit current charge 1.facilitate robbery i. Increases likelihood act actually took place 3. Show that current charge was or was not performed w/awareness. Material a. confuse issues ii. EX . EX a. Makes current charge more probable than w/o evidence 2. admissible under common plan b/c tended to show malice and knowledge of means used to commit crime charged in present case 3. Preparation i. Mental State 1. involuntarily or w/o guilty knowledge a. Specialized Knowledge/Skill 1. at same time police investigating similar incident → evidence of prior incident admissible b/c shows ∆ had special knowledge and skill not everyone has rd iv. Evidence showed railroad had knowledge employee got drunk often → used to show negligent behavior of railroad not do anything about employee behavior → injure Π 19 .Motive b.b. Knowledge i. evidence offered ∆ murdered 3 others like this for same motive of money. Makes prior acts more relevant 2. ∆ charged w/stealing package from mailroom.Knowledge similar b. Essential element in crime . EX a. accidently.
Elements 1. Balance Test 1.person stops car before railroad tracks and looks both ways every day ii. Hospital has routine procedure for operating room like instrument court before sewing up patient c. Routinely failing to stop at same stop sign iii. Large business use standard operating procedures that create routine procedure for receiving and mailing documents b. Routine Business Practice – Usage . Specificity a. Character – person drives carefully 2. To prove conduct of a person was in conformity w/this trait in this situation ii. Habit . Person i. Always going up same set of stairs 2 steps at a time b. misuse of time. Habit Evidence – Rule 406 a. Method i. Admissible i. Semi Automatic Behavior a. SI . Evidence of Habit i.No eye W required 20 . unfair prejudice b. The more specific behavior more likely a habit b. Person 1. EX i. Habit – breaking w/right foot and locking door of house when leaving ii. Should be readily admitted 3. Fairly Probative a. Court will consider how many W will be needed to establish the habit b. Can NOT use to establish another purpose like standard of care iii. Character matter of opinion and describes a disposition or trait iii. EX i. W can reasonably testify to observing habitual behavior a. Introduction of multiple W testifying about habit may cause confusion to jury. Waste of Time a. Opinion .V.Custom a.Specific Instances 1. Behavior that is semi automatic and done w/o thought is more likely a habit than volitional and requires conscious thought b. How often the habit occurs in same situation and for how long this habit has been going on c. EX i. Note: i. The more regular the behavior more likely a habit b. Organization 1. Evidence of habit or routine practice as proof of conduct is relevant 2. No risk of improper character being admitted to jury ii. To prove that organization acted in conformity w/routine practice in this situation 1. Describes one’s regular response to a specific situation that is repeated 2. Habit – person stops car once a day during their travel home from work on same route for 3 years 3. Regularity a. Not very prejudicial a. EX i. Having same thing for breakfast every day ii. Organization i.
DO YOU KNOW?? a. Yes. Evidence of prior specific instances showing person has particular character trait ii. Allowed b/c not prejudicial. Rationale i. Shows that W opinion is worth listening to c. Testify to ∆ or victim reputation in any type of community that ∆ or victim has a substantial connection i. W testimony as to persons general reputation in community for possessing character trait 1. Witness Requirements 1.2. Qualifications a. Methods – Rule 405 a. Offering party must establish W qualifications to testify about opinion 2. W must know ∆ or victim sufficiently well to have formed an opinion about that persons’ character b. Opinion Testimony i. Is hearsay b/c it is what people say about someone a. Least probative method iii. W own opinion as to whether person has a particular character trait 1. Need NOT know ∆ or victim personally 3. Rationale 1. “Do you know of the reputation of xxx in the community for truth and veracity?” i. “What is it?” b. Community a. Knowledge a. not likely to mislead jury 3. W must have sufficient familiarity w/∆ or victim reputation b. Knowledge a. Offering party must establish W qualifications to testify 2. Most probative but takes most time and carries potential for distraction 2. Qualifications a. Organization a. W can NOT give reasons why reputation is good or bad 2. Remoteness a. EX . Can’t support opinion w/ specific facts ii. ∆ or victim lives. NOT cross of any other person. If specific instance contended. DO YOU KNOW? a. goes to school 4. Unfair Prejudice a. Reputation must be from before current charge was publicized b. Witness Requirements 1. works. Reputation Testimony i.27 year old arrest was okay ONLY b/c 2 character W said they were acquainted w/∆ for 30 years b. even person about who character W is testifying 21 . Rationale 1. ∆ Character at issue i. Can ONLY be used against a Character W b. trial w/in trial iii. Used on Cross Examination (p. Specific Instances of Prior Conduct i. Collection of opinions become reputation ii. 23) 1. By W who has knowledge of custom may testify to its existence VI. Reputation must date from time reasonably close to date when current charged occurred i.
Can NOT ask W about Effect of current charge on opinion or reputation i. TESTIMONIAL EVIDENCE a. “Would it change your opinion to know that ∆ got in bar room fights 3 times in past year?” a. Puts ∆ character into play – now Π can use against ∆ 2. Harm 1. Can NOT prove specific instances w/Extrinsic Evidence i. Rebuttal of Proponent of W 1. So jury doesn’t misapply evidence and infer that prior specific act actually did occur b. Of specific instances (mugged an old man) that would reflect poorly on ∆s reputation? a. NOT proving ∆ actually mugged old man b. Opinion a. To show that prior act really did occur c. ONLY to test how well W knows ∆ character 5. Only using to test how familiar W is w/∆s character in community 2. If W is unaware of ∆’s prior convictions would not appear to be very well informed of ∆’s reputation – loose credibility 3.2. Π must have a good faith belief that the specific act actually did occur ii. Puts ∆ credibility in jeopardy – ∆ subject to impeachment B. Witnesses I. Rationale a. Ask ∆ opinion W about specific instances of ∆ that bear on opinion i. Capacity i. Good Faith Belief i. b/c jury unlikely to understand limiting instruction we give ∆ another protection c. Reputation a. NOT asking to prove that ∆ actually did this b. Ask ∆s reputation W about specific instances of ∆s prior conduct i. Inquiry tests accuracy of W hearing and reporting i. ∆ mugged old man? 2. Π must take W answer as is b. HAVE YOU HEARD??? 1. Can NOT present new W or documents to show specific instances did NOT happen d. If questioner believes rumor to be true then can ask W if heard of rumor that may discredit ∆ 4. Limiting Instruction i. Perception = See and Hear 22 . PROTECTIONS 4 ∆ a. DID YOU KNOW?? 1. Policy 1. If based on a rumor that Π believes if untrue can NOT ask iv. Competency a. W Denies Knowledge of Specific Acts a. Asks W to make up a hypothetical assumption of ∆’s guilt 6. ∆ Takes the Stand to Testify i. Unfounded Rumors a.
Failing to do so = Perjury iii. Basis for testimony is Ds statement ii. Good Faith Basis a. Examination of Witness a. no PK 2. 602 1. Topics a. Personal Knowledge – Rule 602 i. Oath – Rule 603 i. Questioner Requirements 1. EX i. Base opinions on facts that W perceived by senses and not learned from someone else a. Effect weight of evidence iv. Cross Examination i. What W thinks he knows from personal perception b. Relate to Ws credibility ii. Scope 1. EXCEPTION a. To impress the Ws mind the duty to testify truthfully ii. Uncertainty 1. Questioner must have good faith belief that the prior specific instances occurred by victim or ∆ before asking specific instance question 2. Hearsay Rule 1. Narration = Relate iii.“I’m not positive” 2. Hearsay Rule 1. “I think” . W Impeached on Cross 2. W learns of crime from another person i. NOT required for Expert W Testimony ii. b/c W has PK that statement was made BUT can NOT testify to subject matter of statement b/c no PK c. So long as grounded in personal observation and experience iii. W must have knowledge of the subject about which W testifies 1.“I believe” . 602 1. Can come from testimony of W i. Sincerity about Testimony II. W supplies proof of 1st hand knowledge a. b/c admission of party opponent ii. Relationship to Hearsay Rule 1. Admissible 602 & 801(d)(2)(A) a. Inference or opinion from testimony i. Doesn’t affect admissibility a. Memory = Remember b.ii. In Camera Hearing 23 . Questioner asks opposing parties W questions a. Things that relate to subject matter of direct (relevant) b. W learns of crime from another person who is ∆ i. Knowledge at time of trial 2. Inadmissible 602 & 801 a. W expression of uncertainty doesn’t exclude evidence as long as W has opportunity of observation and gained some impression b. W not present for crime. Laying Foundation of PK 1.
W hasn’t really had memory jogged. Danger a. Purpose 1. Personal Knowledge a. while W is on stand testifying or before testifying ii. W having difficulty remembering details. Can NOT introduce document into evidence b/c document isn’t evidence ii. Cross Examine 1. Insufficient Recollection a. To Inspect the document ii. NO HEARSAY Problem b/c Exception! iii. Eye witness must testify that she once had personal knowledge about what happened 2. How 1. Cross may reveal that W testimony is just word for word what document said and so casts doubt on Ws credibility iii. Document is a substitute for Ws testimony at trial 2.a. What? 1. Introduction of Relevant parts of Document 1. 4 Requirements (to admit into evidence) 1. Present Refreshing Recollection – Rule 612 i. L to show W a writing or anything else that will help jog W memory . Questioner must demonstrate basis for question outside jury presence before asking it or put judge on notice asking such question b. If recollection done day before trial and not at trial. Must meet Requirements to show that W vouched for reliability of document iv. but only remember the thing W just read 2. UNLESS 1. W about document and introduce any relevant/pertinent portions of it a. L gives W document and W still doesn’t remember the incident SO L will try to get statements from document admitted into evidence 2. Document can independently come in if it qualifies as admission of party opponent or a recorded recollection b. then it is up to judicial discretion whether he will require that opposing party can inspect document c. NOT admitted as an exhibit 3. Elements 1. Must testify that W has insufficient recollection to testify fully and accurately about the event 3. NO introduction of Document i. Can ONLY be read to jury a. Past Recorded Recollection – Rule 803(5) (p. Opponent has Right (when done at trial) i. Via document or any item that will help W iii. Protections a. ONLY used to jog Ws memory and W must testify from her own memory iii. 45) i. b/c W is testifying from own memory not from document iv. Made When Fresh 24 . Back up this cross or show discrepancy between letter and recollected testimony c. HEARSAY EXCEPTION – unavailability of D immaterial ii. Opponent may (if done before trial) i. NO Hearsay problem 1. Procedure 1.
Implies W has reason to lie in this specific case and NOT a general disposition to lie 25 . Examples 1. Calling a W doctor rather than Mr. Impeachment – Rule 607 . Modes of Impeachment BICCC 1. b. Contradiction c. Rehabilitation i. Ensure questioning is effective to get out truth 2. Must testify that W made the statement about the event when it was still fresh in her mind 4. Judge has ability to ensure that W is being treated properly during questioning 1. IMPEACHMENT I. Purpose 1.(BICC) i. Unless credibility is called into question then we have NO need to bring up this evidence and saved everyone a lot of time iv. UNLESS W credibility has been impeached/attacked iii. Offering several W that all say the same thing – bolsters each 2. Similar to Motive 404(b) – non character reason 4 acting a certain way ii. Must testify that letter accurately reflects her knowledge at that time d. Judicial Control of Trial – Rule 611(a) i. What i. Avoid consumption of time a. want to put W back together again b.The more impressive the qualifications the more persuasive 3.a. Show W has some reason. Good Character for Truthfulness OR b. Credibility of Witness a. Character 5. to favor 1 side 1. General Rule 1. independent of the case. Offering an expert . We assume W credibility is good until they are attacked 2. credibility attacked. Bias 2. Prior Consistent Statements 2. Bolstering i. Continuances 3. To show that W is lying or in error iii. b/c forced to call W whose testimony is unfavorable to your client or b/c W testifies in a different manner than you expect b. Constitutional Requirement . How questioner can ATTACK CREDIBILITY of adverse or their own W a. Impeach own W i. AFTER W has been impeached. Inconsistent Statements 3. What? 1. Rationale 1.Confrontation Clause ii. Bias – “You Are Lying” a. Criminal ∆ i. May have right to impeach own W 1. Capacity 4. Trying to support a W credibility BEFORE impeached/attacked ii. You can’t bolster (support) a W credibility w/evidence of a. Consumption of time and confusion of issues a. Accurate Reflection a. Protect W from Harassment and undue embarrassment III.
UNLESS W has already admitted Why Biased 1.Poor Memory – Poor Narrative Skills c. May come after prior inconsistent statement has been proven by extrinsic evidence b. Personal or Business Relationship v. b/c prior statement made out of court is hearsay BUT there is an exception to rule d. Prior written statement doesn’t need to be shown to W before questioning them 2. Impeaching party may decide to impeach W w/their prior inconsistent statement but rather call W2 that says that W had previously made statements inconsistent w/their trial testimony 3. NO Foundation Required i. work for company 2. Financial Interest in Result a. Purpose i. For truth of matter asserted – substance 1. Purpose i. No Extrinsic Evidence b/c Cumulative e. Animosity ii. W has previously made a statement that is inconsistent w/trial testimony 1. Hearsay Exception . But most L will ask W about why they are Biased so L doesn’t have to call another W to prove the bias d. Creditor. Source of Bias i. Intimidation iv. YES use Extrinsic Evidence i. Show W is choosing to lie at some point b/c said different things at different times about the same incident 1. Explain Away a. Paid by Party to testify II. At some point W must be given opportunity to deny or explain statement 2. Offered i.to show W is lying ii. Desire for Revenge iii. Requirements 1. Requirements can be waived by court in interest of justice 26 . Opposing counsel must have opportunity to question W about statement a. Prior Inconsistent Statement – Rule 613 – “You Are Lying” a. BUT Opposing party has right to inspect statement upon request e. Waived a. ONLY statement . Admissible even if W hasn’t been asked about it ii. W may have criminal charges pending willing to shade testimony to help prosecution and thereby help self 3. Self Interest 1. Can prove Bias w/other Ws 1. Bias is relevant/probative to W Sincerity in testifying c.b. Subject to 403 Balance Test ii. L will uses W own prior statements against them b. What i. Written Statement 1.801(d)(1)(A) a. Membership in a Group vi. NO Foundation Required i. Seek liking of Prosecution a. YES use Extrinsic Evidence i. Misperception .
Prior “I killed him” (when arrested) ii. Purpose i. Contrast A’s claim w/common experiences of life which may render testimony implausible c. MAYBE use Extrinsic Evidence i. drug use ii.f. Capacity – “That’s an Error” a. Character – “You Are A Liar” a. NOT Inconsistent 1. W prior statement omits material facts that are included in trial testimony b. Questions about passage of time or W age or ability to recall iii. Current Lack of Memory a. but in trial is not testifying about 4. Suggestions that W misspoke V. A contrived memory loss ii. b. Purpose 27 . Attack flaws in W and NOT their Testimony ii. Misperception . Questioning party uses testimony to attack W 3 ways to show that W is mistaken i. Call witness B to say light was green to impeach witness A’s claim it was red b. Generally i. Trial “I killed him in self-defense” 3. Like prior inconsistent statement but use actual physical evidence to show b. Offer surveillance photo showing it was green c. EX i. Oral – Taped – Written – Sworn . Try to get W to retract or contradict of actual physical evidence that W had earlier testified 1. IF extrinsic evidence goes to a substantive issue in the case IV. Memory 1. Prior Omission a. EX a. Narrative accuracy 1.Unsworn 1. What i. Taken as a whole. Trial “boys crossed the street” 2. What 1. If W has left jurisdiction Type of Statements i. In prior statement W states he has no knowledge about something. Prior statement does NOT have to directly contradict trial testimony a. hearing. lighting at crime scene. Contradiction of Conflicting Evidence – “You Are Lying” a. Perception 1. must indicate that there was different testimony b. Questions about W eyesight. EX i. Show that Ws Character for truthfulness is Bad – they are a liar a. Prior “boys were trying to beat the traffic” ii. Inability to recall III. Prior Lack of Knowledge a. Memory lapse 2. Shows that W is lying but doesn’t infer that W is generally a liar 1.Poor Memory – Poor Narration Skills 2.
1. Jury will infer W is now testifying untruthfully and acting in accordance w/untruthful character iii. Exception to Character Evidence - Rule 404(a)(3) 1. allows propensity evidence to impeach W iv. Steps for Admissibility 1. Pass Rule 404(a)(3) a. Evidence admissible if offered for rules 607, 608, 609 2. Determine if evidence is 608 a. In form of opinion or reputation or on cross only evidence of specific act 3. Determine if evidence is 609 a. Of certain past convictions 4. Determine if evidence offer to prove character untruthfulness a. Yes – must Pass Rule 403 Balance Test b. No – see next step 5. Determine if evidence offered to prove character for truthfulness after attack on same a. Yes – must Pass Rule 403 Balance Test b. No – NOT admissible b. Opinion or Reputation of W Untruthful Character – Rule 608(a) i. YES Foundation 1. Must lay, like Character W Evidence ii. Procedure 1. ATTACK - Impeaching Party a. Calls Reputation or Opinion W2, to give testimony about W1 character for Untruthfulness i. Even IF lies not related to charge in case JUST to Truth/Untruth Character b. Limit i. NO specific instances backing up their testimony 2. REHABILITATE - Proponent of W1 a. AFTER W1, impeached by bad character for untruthfulness b. Call own W2 to show W1 character for TRUTHfulness 3. NOW PRICE TO PAY!!!!! a. ATTACK - Proponents W2 can be CROSS Examined i. w/specific instances via (608(b)) 1. HAVE YOU HEARD?? Reputation 2. DID YOU KNOW??? Opinion 3. See Limits below b. NO Extrinsic Evidence i. Can’t prove the specific instance by extrinsic evidence c. Specific Instances of W Conduct Didn’t Result in Conviction – Rule 608(b) i. What 1. Ask W about specific prior acts to attack W character for Untruthfulness 2. Probative of Truth or Untruth a. Conduct must be probative of Deceit – Fraud – Dishonesty - Lying i. NO violent conduct b. Must ask about specific underlying Act i. Lie of past conviction ii. NOT arrest, charges filed, indictments 3. “isn’t it true you embezzled $ from…” ii. NO Extrinsic Evidence 1. Cross examiner is bound by the answer, 2. No extrinsic evidence to prove that W1 actually committed the act iii. Rationale for Limits
1. A generalized attack on W and others who have simply answered subpoena to appear as W could have their reputations destroyed iv. Procedure 1. Good Faith a. Lawyer must have good faith basis for believing that specific instances took place i. L must have in possession info that reasonably leads him to believe specific instances have in fact been committed 2. 403 Balance Test 3. Judicial Reasonable Control – Rule 611(a)(3) a. Judge must exercise reasonable control to protect W from harassment or undue embarrassment 4. Excluded by 609 a. If evidence is excluded by 609 then it can’t be offered through the “back door” of specific instances cross examination v. Direct Examination 1. Pulling the Sting a. Strategic tactic if it is your W p.287 vi. NOTE - 405(a) vs. 608(b) – Specific Instances for Cross Examination 1. This rule more liberal than 405(a) a. b/c allow specific instances to principal W b. 405 only allows to done on character W and NOT anyone else i. EX 1. If ∆ W testifies to ∆ reputation for peacefulness 2. Then ∆ takes stand 2. How Π can get in specific instances of ∆ a. NOT 405(a) i. b/c only allows cross of character W and ∆ wouldn’t be on stand to give testimony of W character b. 404(b) i. Π could argue offering evidence of prior incident for “other purpose” c. 405(a) i. If ∆ vouches for his own character, then ∆ has made himself own character W d. 608(b) i. If ∆ testifies for his own character for truthfulness, ∆ made self own principal W d. Impeachment by Prior Convictions – Rule 609 i. Crime of Dishonesty 1. Any W can be attacked 2. Crime must require prosecution to prove element of dishonesty in crime 3. Types (misdemeanor or felony) a. Perjury b. False Statement c. Criminal Fraud d. Embezzlement e. Taking property by False Pretense f. Counterfeiting g. Forgery h. Filing False Tax Returns 4. Procedure a. NO 403 BALANCE TEST!!! i. b/c these are so probative ii. judge has no discretion
iii. Most probative of an untruthful character ii. Crime Punishable by Death or More Than 1 Year 1. Purpose a. Past crime is evidence of general immorality or lawlessness and acting in conformity w/that trait, W is lying now 2. W doesn’t have to have been punished though 3. Types (felony) a. Violent i. Murder ii. Rape iii. Assault iv. Battery b. Non-Violent i. Drug Offense ii. DUI iii. Prostitution iv. Shoplifting v. Robbery vi. Receiving Stolen Goods 4. Manner of Proof a. Ask W about impeaching conviction OR b. Prove by means of public record 5. How Question a. Limited to basic fact of conviction i. “Isn’t it true you were convicted of aggravated assault in TX and you served 6 months in jail?” b. Can NOT refer to any aggravating facts or details of crime i. “Isn’t it true you were convicted of aggravated assault for beating your wife and son w/base ball bat?” 6. Time Factor a. Conviction less than 10 years since date of conviction or release i. Admissible 1. No discretion by judge to exclude this type of evidence 2. No 403 Balance Test b. Conviction more than 10 years since date of conviction or release i. Inadmissible UNLESS 1. Strict Reverse Balance Test a. Probative Value substantially outweighs its prejudicial effect 2. Notice a. Proponent gives adverse party advance written notice 7. Procedure a. BALANCE TEST 403 i. Type of balance depends on if W is the ∆ or someone else b. ∆ - Opposite Balance Test i. Evidence is INADMISSIBLE unless…. 1. Probative Value of conviction for untruthfulness outweigh its prejudicial effect to ∆ ii. 5 Factors Weighed – Brewer Test 1. Nature of Crime a. Violent crimes less likely to be admitted i. Less probative of truthfulness 2. Time of conviction and W history after release a. See Time Test above 3. Similarity between past crime and current charge
a. More similar crimes are less likely to be admitted i. More tempting for jury to convict 4. Importance of ∆ testimony 5. The centrality of credibility issue iii. NOTE 1. Must be specific facts and circumstances supporting judge’s conclusion that probative value substantially outweighs prejudice iv. Rationale 1. Risk to ∆ Is very great a. Jury will be willing to convict ∆ once more b. Jury will use as evidence of ∆ propensity to commit crime c. Jury will use conviction of ∆ violent character rather than ∆s untruthful character c. Someone Else – Rule 403 Balance Test i. Evidence ADMISSIBLE unless… 1. Probative value substantially outweighed by danger of unfair prejudice 8. Appeal for Misapplication of 609 a. 2 Factors i. ∆ must have testified at trial ii. Prosecutor must have introduced evidence of contested conviction b. No Appeal i. ∆ offers evidence of prior conviction 1. ∆ waives right to complain iii. Juvenile Adjudication 1. Prior Civil juvenile Convictions a. NOT admissible 2. Prior Criminal a. NOT admissible to impeach ∆ b. Admissible to impeach W other than accused i. To attack credibility of an adult ii. Court satisfied that admission is necessary for fair determination of issue of guilt or innocence
c. REHABILITATION I. Rehabilitation of Impeached Witness
a. Once W credibility has been attacked then we will want to put W back together again b. Methods i. Testimony of another eyewitness ii. Testimony of expert iii. Document 1. Photo etc 2. Excluded a. This evidence may be excluded per 403 Balance Test i. For cumulative, time wasting c. How - Must directly answer impeachment evidence i. Capacity 1. Impeach by Lack of Capacity → Rehab show Capacity a. “On cross you said you weren’t wearing your glasses, were you wearing contacts?” 2. Use Any Way you Want ii. Bias 1. Impeached by Bias → Rehab to show Lack of Bias
W changed story. As charged by cross examiner iii. EXCEPTION 1. Specific Instances – 608(b) c. Explain Away i. If Cross examiner purpose was express or implied that a. Prior Convictions – 609 i. who tells various stories. not to make W more credible 2. Offering party must show that W said consistent statement BEFORE W had motive (falsify or was influenced) b. Hearsay Excluded i. Exclusion 1. Character – Bad 1. Improper influence or self serving motive 2. Specific Instances D. Once W has shown that they blow hot and cold. Prior Consistent Statement i. or W recently lied about testimony b/c of an improper motive i. offered into evidence to prove the truth of the facts of the statement and no exceptions apply ii. Truth of matter asserted – as substantive evidence Rule 801(d)(1)(B) iv. Opinion or Reputation – 608(a) b. Inconsistent Statement 1. They still have told different stories at different times! ii. made or occurred out of court. If evidence falls w/in the criteria not hearsay 32 . 2 Ways to Rehabilitate a. Suggests that W lied intentionally and pervasively 2. Requirements a. A statement or assertive conduct. Generally .Rule 801 (a-c) a. fact that W has told the story 2 but only had an inconsistent statement 1. THE HEARSAY RULE I. W explain away the inconsistency b. and not made by D at trial. Generally NOT ADMISSIBLE 1.2. Attacked by a. Opinion or reputation b. How to Rehabilitate Character of W a. Use Any Way you Want iii. Offered for 1. Rehabilitation – to show that statement was made 2.
Test Analysis a. Narration a. NO BALANCE TEST a. 2 separate out of court statements offered for truth of matter asserted a. Business Record (p. Was statement made outside of court? iii. Do we care whether statement is true? 1. Criminal or Civil ii. 801 – Determine if Statement is Hearsay i. Rules exclude hearsay evidence b/c D is unable to be cross examined at the time the statement is made and a W to this statement is testifying in court ii. Dangers of Hearsay 1. If YES – statement is Hearsay 33 . 801(d)(1) – Prior Statement by Witness b. Poor Perception a. UNLESS – Fits into Exception and could be admitted a. Poor Memory a. Regulates who and when a hearsay declarant can be impeached and rehabilitated b. Types i. 801(d)(2) – Admission by Party Opponent iii. then judge can exclude 3. Impeachment of Hearsay Declarant – Rule 806 1. Sincerity a. Is statement offered to prove truth of matter asserted? v. Rationale i. Exceptions 1. How well did D observe the event W claims D to describe 3. Thus judge and jury are unable to test and examine the credibility of D statement iii. 403 Balance Test i. 804 – Declarant Unavailable c. If evidence falls w/in the criteria not hearsay a. Limiting Instruction a. 803 – Declarant’s Availability insignificant b. If D is Lying or Mistaken? c. Is statement assertive? iv. Is D intentional lying c. Identify Declarant & W b. Π and ∆ can use iii. Trial Type 1. Judge MUST exclude it unless it fits in a known exception 2. Is D able to communicate what she intended to communicate 4. Not excluded if each part of the combined statement fits into an exception b.a. Probative Value 1. 807 – Catch All Exception iv. State of Mind Statement w/in Co-Conspirator Admission v. If evidence has more than 1 use II. Who 1. Co-Conspirator Admission w/in Recorded Recollection iii. Exclusionary Rule 1. Procedure Overview i. Of Ds statement depends on the credibility of D iv. 46) ii. Did W really remember the details as W states them 2. Did D make a statement? ii. Hearsay w/in Hearsay – Rule 805 1.
i. 801(d) – Determine if Statement is Excluded 1. PRIMA DIFF Privilege Refusal to Testify Illness or Death Memory Lack of Absent Dying Declaration Interest – Stmt Against Former Testimony Forfeiture by Wrongdoing f. 5. Nod of head indicating yes b. Silence b. Implied Assertion a. 7. Prior Consistent Statement c. 5. Elements of Hearsay a. "what is your name?" or "I don't know your name" c. 8. Prior Inconsistent Statement b. D isn't making express statement but intends to communicate the facts i. Command & Question i. Still other ways to get in 2. 3. Privilege III. “who doesn’t understand this?” . Party’s own statement/representative b. 4. 2. Conduct 1. Adoptive Admission c. Prior Statement of Identification 2. 3. Excited Utterance Present Sense Impression Existing Condition Treatment – Diagnosis Business Records Exception – Catchall Recorded Recollection Public Records & Reports 1. Implies that Laura's dog is dirty and the dog needs a bath 34 . 6. D intends to communicate the facts of the statement a. "Laura ought to give that dog a bath" 1. Co-conspirator statement in furtherance of conspiracy ii. Oral – Writing – Conduct ii. Or offered to prove statement occurred e. Exclusion Required!! d. 3. “Is the door open?” or "I would like the door closed" ii. 1. If YES – Admissible Is evidence otherwise barred? i. Determine if Statement Falls into Exception 803 – Availability ≠ Matter 804 – Unavailable ExPECT BERP 1. “Statement” i. Unless i. Admissions by Party Opponent a. 2. 4. 2. 4. Can be admitted to prove truth of matter asserted or ii. Intended by D to be a substitute for words a. if NO – Inadmissible a. Assertion 1.raise my hand intended as substitute for yes ii. Prior Statements by W now subject to Cross a. Declaration i. Directly Asserts something 2. Statement by Spokesperson/Agent d. 1. If NO – statement is Not Hearsay i.
Offered to Prove a. Verbal Acts & Legally Statements Made 1. Verbal but noting asserted so it can’t be offered for truth of matter asserted “Declarant” i. So soundness of testimonial capacities don't mater ii.b. If prosecutor offered evidence to show that Alice who died that afternoon of drug overdose was not contemplating suicide thus not suicide ii. "I accept" can make a K ii. Words or conduct D does not intend the facts of statement to communicate a. offered for something else. NOTE: If there is no audience then words or conduct are not assertive c. Statement is offered to prove that what the statement claims is true ii. something implicit in the statement itself iii. Contract – Defamation – Slander – Notice 2. “ouch” b. The impact of the statement on someone who heard it or read it i. Uttering certain words D trigger a legal right or duty or commit an offense i. Impact on Hearer or Reader 1. A matter asserted is just one link in a chain of inferences leading to the ultimate fact to be proven i. "I will kill you" is a threat iv. "I just spent all morning w/the architect planning my retirement home" 1. 3. Emotion – Notice – Motive – Reasonableness – Good Bad Faith Belief 2. Just to prove statement occurred a. Does anyone have an umbrella? a. EX i. Ultimate Fact – that she was probably not mulling suicide 4. Statement Was Made i. NOT HEARSAY I. doesn’t matter what D intended meaning was a. not being offered for truth though. Offered to prove a. All we need to know is that D said the words and person heard 35 . Value of inference flows from implicit b. Verbal assertions used inferentially. Must only show statement was made to have legal force. Intermediate Fact – that she was planning for the long term 3. THUS the indirect assertion is used to prove the prosecutions desired purpose that Alice was not contemplating suicide = hearsay b. Conduct NOT intended by D to be a substitute for words 2. Indirect Assertion a. Immediate Fact – Alice was planning her retirement home 2. Offered to Prove Something Else a. "he's a thief" in public can be slander 3. "I do" at the altar makes a marriage iii. Not Hearsay 1. Statements operate independently of D belief or intended meaning a. Non Assertive 1. Chain of Inferences 1. c. Hearsay 1. Statement offered for any other purpose than the truth a. Person who makes a statement “Offered to Prove the Truth of the Matter” i.
b/c W and D are same person there is opportunity to cross examine at current trial. demeanor observable by jury b. EX i. Prior Inconsistent Statement . Offered to prove ∆ had heard statement and on notice of possible danger 3. knowledge of danger is the issue. ∆ on trial for negligence. All we need to know is that D believed his statement a. Effect on dangers II. D (W b/c now testifying) has said different things at different times so testimony can't be trusted 2. Prior Statements by Witness Presently Testifying i. W is under oath. statement from D “your tire is about to burst” 1. EX i. Offered to infer knowingly drove car anyway iii. 2. Offered to prove D’s state of mind or belief in making a statement when used circumstantially a. Statement offered to prove that ∆ heard statement and was reasonable to fear person w/gun at time of incident ii. Offered to infer that D is insane ii. Show D State of Mind & Belief & Knowledge 1. General 1. “I am John the Baptist” 1. Impeach D w/Prior Inconsistent Statement – Rule 613 1. police testify when ∆ arrested he had a letter in pocket that said “your wife has been having an affair with your neighbor” 1. Circumstantially to prove D Belief i. Offered to infer D believed listener was sane 3.801(d)(1)(A) 1. Rationale a. All we need to know is that D made the statement and it is different than one made in court a. Letter offered to prove ∆ read letter and had a motive for killing iii. from when W made out of court statement to present ii. “My brakes are defective” 1. Offered to Prove Truth BUT EXCLUDED from Rule 801(d) **These statements are theoretically hearsay. but are explicitly excluded for policy reasons ** it is fair to admit these in trial a. Only bad thing is cross examination is delayed. Truth of out of court statement is irrelevant and D testimonial capacity is able to be tested by cross examination b. Elements 36 . Significance of D words does not depend on the credibility of D testimonial capacity a. Testimony given by ∆ that another told him to fear someone who was going to shoot ∆ 1. Not that the statement itself was true b. ∆ on trial for murder.a. All that matters is that the person hearing or reading the words believed them not that the words themselves were true iii. EX 3. Intent – Knowledge – Purpose – Negligent – Reckless – Sanity – Fear 2. “Let’s discuss business” 1. Offered to prove a.
Prior Statement of Identification .a. Consistent w/testimony currently given 2. No Confrontation Clause problem 2. Elements a. Fails if prior statement given at police station or other govn’t agency 2. No longer subject to cross examination c.801(d)(1)(B) 1. This type is usually more for show ii. Prior consistent statement is admissible to prove the truth of the facts in the statement iv. To show statement was made 3. Prior Statement of Identification made after perceiving ∆ 37 . Substantive Evidence – This One a. W implicates ∆ in grand jury testimony BUT then changes testimony when called at trial 3. grand jury. is inconsistent w/trial testimony ii. Elements a. W does NOT need to testify at current trial or be subject to cross examination b. Important When a. Impeachment – Rule 613 (p. BUT MUST be 1. Fails if WD asserts self incrimination privilege 1. Improper influence or self serving motive c. W Substitute i. was made at a trial. EX a. WD must testify at current trial and be subject to cross examination i. Does NOT need to be given under Oath ii. If WD can’t identify ∆ at trial b/c memory problems. WD must testify at current trial and be subject to cross examination i. 26) a. Substantive Evidence – This Rule a. Rehabilitation – Rule 613 a. was given under oath iii. Offered for to prove inconsistency in statements. WD forgets who he identified or changes testimony b. Made before W had motive or bias 2. testimony is admissible c. saying the light was or wasn’t green iii. hearing. If Cross examiner purpose was express or implied that i. in deposition 1. or W recently lied about testimony b/c of an improper motive ii. Prior statement i. reducing credibility 4. W and D are same person b. Rationale a. Usually prior identification statement is more reliable than in court pointing out of ∆ i. W and D must be SAME person b. proceeding. W changed story. Prior Consistent Statement . Offered to rebut an impeachment of dishonesty or bias and support W credibility i. Prior statement i. To prove the truth of the facts in the statement against WD i. What ∆ looks like is more fresh in WD mind 2.801(d)(1)(C) 1. then another W who was present at time of identification. Satisfy even if WD can’t remember prior identification 1.
Any statement 1. 56) and Due Process requirements i. Rebut his own out of court statement via i. Even of part or all of an offense ii. Guilty plea in criminal case is an admission 38 . Out of court statement by Party D i. L required to be present at some types of identification procedures 4. Even Self Serving when made ii. Identification evidence must satisfy Confrontation Clause (p. NO Personal Knowledge Required i.Opinion – Conclusion of Law 1. Rehabilitation a. Rationale a. What a. General 1. Contrary to lay W rule iii. Prior out of court statement made by a party Offered Against that party i. Written – Spoken – Act . Requirements a. Always look for 1st when you have hearsay 2. Offered to prove the truth of the statement i. Party can’t object on hearsay grounds when his opponent offers a statement made by himself b. ? 5. Substantive Evidence a. The person the WD said was ∆ b. Confession a. Only offered Against Party D c. Responsibility i. Contradiction ii. Now ∆ will want to take stand to explain. Admission by Party Opponent i. D doesn’t have to have PK of anything w/in statement 5. Party can take stand and explain statement to jury ii. You made it now live with it 4. Taking stand – Explain away ii. If police testify falsely about confession ∆ gave BEFORE ∆ arrested . Rehabilitation a. Deposition Testimony – Casual Statement to a Friend b. People should take responsibility for their own words and acts 1. Even if Not admitting/confessing to anything when made 2. Π can offer any statement made by ∆ w/o worrying about a hearsay objection 3. Harm 1. which opens him up to cross examination on issues pertaining to charge and ∆ won’t want to assert privilege of self incrimination 2. Party estopped from objecting to their own statement a. On grounds they didn’t have opportunity to cross examine themselves b. Of criminal ∆ is admission i.3. Do NOT allow party ability to make statement hearsay (inadmissible) 2. Individual Admissions – 801(d)(1)(A) 1.still admissible 2. Exclude Guilty Plea a. Criminal Trial a.
Admissible to prove the truth of the facts of statement iii. Substantive Evidence a. Statements made Negotiating Pleas and Offers 3. Rationale a. Incentive to manufacture evidence ii. ONLY when a parties silence constitutes assent to the assertion made in his presence v. What a. Agent does NOT need authority to speak 2. read and understood the statement ii. Implied Admission or Adoption by Silence or by Use i. Harm i. Plea of No Contest iii. Failure to deny = manifestation of the belief in statement 1. Adoptive Admissions – 801(d)(1)(B) 1. Party D actually heard. a Reasonable person would have Denied or Corrected the statement. Mere possession of a document is not an adoption of its contest b. There is another plausible reason why Party D stayed silent NOT = adopted admission vi. What a. may want to consult L before saying anything c. Substantive Evidence a. Capable Of Denying the statement iii. Failure when under arrest to deny an interrogating officers charge 2. it is considered fair for the party to explain or clarify the Ds statement to preclude party from keeping it out on hearsay grounds 3. Non Verbally a. If ∆ remains silent. Cars collide and Π (who is L) says “you ran the stop sign and this accident is your fault” 2. Expressly a. Except – Rule 410 (p. Use of a document made by a 3rd person is an approval of its contents as correct and is an admission by adoption 1. Arrested – Criminal 1. Reads or hears statement and then nods or says yes b. Under the circumstances. EX 1.i. Admissible against Party D in later criminal or civil case b. Agent Admissions (Vicarious Admission) – 801(d)(1)(D) 1. Guilty Plea later Withdrawn ii. Statement of another shown to be adopted or believed as true by Party D 2. Miranda Rights a. Hold party responsible for an admission that someone else makes even if party does NOTHING to adopt or manifest belief in it i. Π’s statement can come into evidence as an adoption by ∆ iv. if not true iv. UNLESS 1. Offers to Plead Guilty or No Contest iv. Elements of Implied Authorization a. Statement made by Agent of Principal to 3rd person 39 . 9) i. Conduct or words to show knowingly agreed w/another’s statement 4. b/c you have right to remain silent b. Elements i. Admissible to prove the truth of the facts of statement 3. Due to special relationship.
56) i. Rationale a. No conspiracy if confession is made knowingly to police d.Testimony of Agent on Stand 6. Concerning a matter w/in scope of agent employment c. Rationale 1. D and Party were co-conspirators b. Statement by a co-conspirator to other conspirators or 3rd party i. Principal.i. inspections. Co-conspirator statement is admitted out of necessity b/c conspiracy is a hard thing to prove b. Inform Members of Status. so fair for statement to be attributed to ∆ i. Elements a. We are going to hold the party responsible for his partners statements 3. Books & Records 1. In House Use a. who is party to suit. Proof of Agency Relationship a. Statements that provide Assurance. Expert Testifying and Party that employed him b. Look for Hearsay w/in Hearsay c. Excited Utterance (803) (p. Statement made by agent is considered but must show more to establish i. But can’t be offered to prove an act in furtherance of another crime 2. Persuade another to Join or Assist Conspiracy e. In furtherance of the conspiracy i. internal meetings v. NOTE: Conspiracy charge is NOT required 1. Communications made to principal are admissible against principal 1. Admissible against Principal 4. 42) v. Hold party responsible for an admission that someone else makes even if party does NOTHING to adopt or manifest belief in it b. maintain Trust and Cohesiveness among conspirators. NOT against Party D ii. Joint Venture 40 . What a. Reliability – in house reports are usually prepared in such a way that they are likely to be accurate b/c prepared by an insider's access to information iv. Admissible i. Admissible if offered Against ∆ conspirator i. Employee and Company ii. They are partners in crime. Admission by employee may be able to come in under other hearsay rules even if it fails to come in under this one b. NOTE a. Made during the course of conspiracy i. If statement of co-conspirator is offered during a joint trial w/another conspirator 2. EX a. Co-Conspirator Admissions (Vicarious Admission) – 801(d)(1)(D) 1. Can explain or clarify Ds statements c. Corporation intends for outsiders not to see or hear results 5. books and records prepared by employees for company internal use only are admissible iii. Confrontation Clause issue (p. Employment Records . During existence of relationship d. Internal reviews.
General . Admissible to prove the truth of the facts of statement 5. Offering party must prove existence of conspiracy b. Proof of Co-Conspiracy . One who knew of venture and intended to associate w/it ii. b/c truthfulness and memory not an issue c.104(b) Huddleston Standard a. Is a conspirator even though no conspiracy has been charged 4. Substantive Evidence a. By Judicial Determination i.Rule 803 i. EXCEPTIONS . Statements made by D excluded when offered to prove truth of facts of statement that D intends to convey. Rationale i. Out of court statement is more reliable than an in court statement 41 . Reliability 1.i. Apply whether or not declarant is available d. Offered to prove the truth of what D was communicating b.Availability of D Immaterial (ExPECT BERP) I.
2. Participant in or Bystander to event iv. Lack of opportunity to reflect ii. Excited Utterance – Rule 803(2) a. that looks like Johnny” 2. IS IT REQUIRED FOR ALL EXCEPTIONS OR JUST 2? f. “that dog just bit me” ii. Wife viewing pic of person that was her husband committing bank robbery 1. Unexpected event i. Wife statement that husband had gotten a phone call and was scared that he was going to die iii. sufficient enough to justify non production of D. While D was under stress of excitement caused by event. Prior statement is more superior to D trial testimony 1. Proof of Under Stress (subjective) a. Personal Knowledge i. b/c statement falls so closely to event c. Condition and appearance of D ii. Opinion Rule Doesn’t Apply II. Statement by D ii. Can come from… i. Proof of Startling Event a. Rationale i. Father told about death of child “oh no not again” 1. Criminal conduct b. “oh my God. Can be hours or minutes after 2. Characteristics of person involved in event c. Poor Memory Reduced 1. Requirements i. Statement made by child retuning to scene where brother murdered iii. b/c D didn’t have enough time to think about what they are saying i. b/c at the time the statement was made it was fresh in memory e. As long as D still under influence of event ii. Descriptive of event b. Made by D w/Personal Knowledge (p. Statement prompted by announcement of unexpected death ii. It is more trustworthy. Enough to stop D from thinking about what they are saying a. even though they may be available ii. Statement Relating to that Event 1. 22) 1. Accident iii. Statement made by D when under influence of startling event with 1st hand knowledge i. Before D had time to reflect 1. Physical and Mental State of D 42 . Sincerity Reduced or Eliminated a. Duration of state of excitement 1. Lapse of Time between event and statement i. Enhanced if D is participant instead of eyewitness a. Does NOT have to be contemporaneous w/event b. Age of D c. Revival of memory of traumatic event i. Lack of Capacity to Fabricate (Spontaneity) 1. Relate a. Startling Event 1. so don’t need cross examination. More broad rule than Present Sense Impression b.
More reliable than present testimony c. Poor Memory Reduced 1. motive. “John is most despicable person I know” b. 22) IV. Subject Matter of Statements 2. Perception Eliminated 1. b/c D didn’t have enough time to think about what they are saying b. intent. Statement Directly Reflects present state of mind of D 2. Minutes difference 2. Contemporaneous w/Perception a. b/c statement made at same time as condition ii. And may be only evidence of that mental state iv. plan. Rationale i. Offered to prove D’s belief of statement (p. 36) i. State of Mind “In Issue” D is ∆ i. Fits in exception as long as D still under stress of event III. Statement of D then existing state of mind. When D is ∆ 3.D ∆’s motive 1. Requirements 1. Made while D was perceiving the event or immediately thereafter 1. emotion. Statement doesn’t directly reflect D’s present state of mind 2. Requirements i. Sincerity Reduced 1. Existing Mental or Physical Condition – Rule 803(3) a. Present Sense Impression – Rule 803(1) a. Response to Questioning a. Statement made by D w/in minutes of perceiving event 1st hand i. D perceives an event that is not particularly shocking or exciting. mental feeling i. Characteristics of Event e. Offered to prove Truth of Matter Asserted a. “I think my breaks are bad” D belief about soundness of breaks is in issue in case 43 . Like . Circumstantial Statement 1. Offered to prove something other than truth of matter asserted = Non Hearsay a. sensation. Includes i. Rationale i. D may still be moved to comment on what D perceived at time of impression 3. Time Factor & Subject Matter More stringent rule than Excited Utterance b. Statement usually made to another person that is W testifying iii.d. design. Lack of Time to Fabricate (Spontaneity) 1. Current Belief 1. b/c less motivation to lie before litigation than after 2. About which D had Personal knowledge (p. Sincerity & Memory Reduced or Eliminated a. D can be W or ∆ 3. State of mind is a material fact it must be shown and is difficult to prove 2. b/c statement falls so closely to event c. Little risk of misperceiving your own thoughts or physical condition iii. Statement Describing or Explaining Event or Condition ii. Necessity – State of Mind 1.
Made contemporaneous w/condition. Current Attitude 1. Offered to prove truth of D statement that D was in pain a. 38) a. offered to prove the fact remembered or believed b. NOT ADMISSIBLE 1. To Spouse.. Statement by D of past conduct or event. Mental feeling 1. D needs Adel present in order to meet him ii. “I’m going to meet Adel in the parking lot” 1. NOT event that caused the condition 3. “I am depressed” Ds mental condition in issue proof that D committed Suicide ii. “my back hurts” Where Ds physical condition is in issue ii. Offered to show D actually carried through w/plans i. Offered by Π c. Requirements 1. Statement Directly Reflects D present intent. D intent need not be directly “in issue” ii. Relative. plan or design. Past Conduct a. that produced D present state of mind. Future Conduct of Another a. ASK ABOUT PROBLEM 7. Dr. Symptom. plan or design in statement ii. circumstances change 2. “I will revoke my will” 2. Relevancy a. Statement offered to show future conduct of another in order to make D statement entirely true i.ii. Treatment & Medical Diagnosis – Rule 803(4) 44 . By D 4. Less reliable proof than offering to prove present state of mind b/c don’t know for certain that future conduct actually occurred b/c plans change. Forward Looking Statement of Intent b. Statement Reflects a Present Condition.Offered to prove D ∆ did not have culpable state of mind 2. Not okay to offer against person you are going to meet in parking lot d. When D is ∆ or Someone else c. “I believe I went to the store yesterday” ii. “I don’t like Ethel” Ds feelings towards Ethel are at issue iii. Shepherd has poisoned me” 2. Admissible to show that D later revoked will iv. to do something in the future i. or any other person – for ANY reason 5. NOT Prosecutors – Admission of Party Opponent (p. Who Uses 1. Friend. 511) STATEMENT TO LAWYER iii. Physical i. ∆ . Don’t need to use b/c statement made by ∆ b. EX 1. Future Conduct of D 1. “Dr. EX i. For truth of matter asserted of state of mind iii. Meaning D later acted in accordance w/state of mind. Pain. IN DESCRIBING A PRESENT CONDITION WHICH RULE APPLIES 803(3 or 4) V.34(p. Existence of Pain 2. Elements (Hillman) a. Current physical condition i.
can testify at trial 2. Statement made for purpose of Medical Diagnosis or Treatment 1. safeguard against false statement is their expertise c. Pertinent to Diagnosis or Treatment (Cause or External Source of pain) 1. NOT to prove identify of car or negligence of person who committed accident b/c these aren’t pertinent to Ds diagnosis or treatment VI. ambulance driver. Past Symptoms. W expertise for purpose of litigation. Business record is a vehicle for demonstrating that the statement was made ii. doesn’t want child to return to abuser vi. Nurse. Child Abuse Cases 1. Ds condition was caused by the incident or D sought treatment a. “ I was hit by a truck that went through a red light” 2. Statement made to Dr. Rationale i. Dr. By D patient to Dr. Can be admitted w/o calling the authors of the record or employee c. and drug behind bushes” 2. Pain. “Person who raped me was…” ii. “Who Did it” Questions i. Foundation i. to rely on in diagnosis or treatment a. Rationale i. Purpose i.a. D motive in providing info must be patients desire to obtain treatment v. “it was from trauma or force” b. Regular practice of business to keep and make a record of an event it is admissible as proof of that event b. Or By 3rd person on behalf of D. D will not fabricate b/c effectiveness of treatment depends on accuracy of statement ii. or other medical professional iii. “I was raped. Offered to prove 1. Info must be reasonable for Dr. uses info to pinpoint certain areas of body and eliminate 1. Identity of abuser is relevant to treatment when abuse is by household member 2. to Dr. Statements made by D patient to Dr. Describing Medical History. NOT admissible b/c doesn’t help Dr. Usually part of a hospital or medical records b. Can be done by Anyone who is familiar w/how records are made and kept d. Sincerity Reduced 1. Business Records – Rule 803(6 & 7) a. “Did man take your clothes off?” 3. Ailments Origin or General Character of Cause or External Source iv. Requirements i. Allows paper record to substitute for the in court testimony of employees who received info 1. Sensations. Applies to statements made solely to Dr. in treatment 1. “it was result of excessive force” 3. “What Happened” Questions i. Look for Hearsay w/in Hearsay (p. family member (patient can’t communicate) ii. for purpose of medical diagnosis or treatment i. b/c business relies on these documents in their everyday affairs it is reasonable to assume they have an incentive to ensure records are reliable 45 . Sincerity Reduced 1. or other medical professional 1. Jury will learn about statement anyway 1. Dr. 33) 1.
made to another w/Duty a. engaged in business. Opinion or Diagnosis a. Made by an employee w/Personal Knowledge of the event reported (p. Can NOT be self serving. School. Opinion or Diagnosis recorded 1. By Testimony of ?. List of amount of drugs sold and $ received c.a. Report. Business Type a. 22) 1. NOT a personal or household record 2. To be made in regular course of business. Confrontation Clause Problems f. Event. Hospital. Supplier w/PK made to another w/Duty a. Unless source of info. Record. Data Compilation. Practice is what the business does 2. UNLESS i. Document of Π’s Dr. OR statement can be offered to prove the statement was made ii. Supplier Must have Business Duty to Supply Info a. At or near the time of an Act. circumstances of preparation indicate Lack of Trustworthiness ii. Too difficult to get every employee who took part in a routine transaction in court. Institution. must be made in the regular course of business 1. Police report w/info from bystander to accident → excited utterance. By Statute (public work) ii. neither admissible to prove truth of matter asserted b. in any form. Prove Regular a. So employees who make records have little reason to lie in records ii. 62) i. EX 1. preparation of litigation i. LOOK 4 Hearsay w/in Hearsay (p. Define Regular a. Individual Records a. Employee’s personal diary listing wages and tips b. By Contact (private work) iii. Define Regular a. Doesn’t need to be routine 3. then it should NOT be admitted here iv. 33) 1. Recorder must have a Duty as part of Employment to Record i. Regular Practice of Business To Keep such records 1. so better to have business record admitted in place of live testimony e. existing physical condition 2. Suppliers statement fits w/in another hearsay exception 1. NOT admissible by Π but Document of ∆’s Dr. Duty of Recorder a. Association. Requirements (KRAP) i. Generally. Hospital Records of patient description of symptoms → made for medical treatment. don’t need to be authorized b. Profession. Both Statements covered by Business Records Exception 2. Occupation i. qualified W. method. present sense impression c. Necessity 1. If opinion is not admissible under expert testimony 702. have other relational duty to business 46 . LOOK FOR i. Expert Testimony (p. is admissible by Π 3. Would be difficult to keep a business open for long if the regular activities were not based on reliable records b. Employed by business. Condition. Supplier has NO PK.
catchall exception does NOT apply iii. Hearsay evidence that is reliable might not fit w/in any of the exceptions. Record is still reliable b/c recorder and supplier were under a business duty to do their part accurately vi. If Supplier Not Under Business Duty BUT see Hearsay w/in Hearsay g. Recorded Recollections – Rule 803(5) a. Material 1. Are admissible if a. Or made upon info provided by someone w/business duty to report the info 1. Offered to Prove Truth of Matter Asserted in record of an event vii. Data Compilation 3. Determined by Judicial Decision at an ad hoc basis b. Necessity – Trustworthiness c. Not Admissible if source of info or method or circumstances of its preparation indicate a lack of trustworthiness 1. Outsider w/no or little connection w/business b. Offered to prove the Non-Occurrence or Non-Existence of the Matter b. 24) party will want to get statements from document admitted into evidence 47 . Report. Rationale i. Statement must be more probative on the point for which it is offered than any other evidence which the proponent get through reasonable efforts a. A statement close “a near miss”. General i. If D available . W having difficulty remembering details and memory can’t be refreshed (p.2.name and address of D iv. Recorder Does NOT Need PK of Event b/c has Duty to Business a. Redundant b/c 102 already mandates justice VIII. Offering party must provide advance notice of its intention to use evidence and particulars of statement . Is a sort of best evidence provision b. Rationale i. Notice 1. What? i. Justice 1. Evidence that a matter is NOT Included 2. Statement not be specifically covered by another hearsay exception 2. Requirements i. And it is a Regular Business Practice to Make and Keep matters of this kind 4. In a Record. Necessity 1. Statement must be offered as evidence of a material fact a. General purposes of the rules and interests of justice must be served a. LOOK 4 Hearsay w/in Hearsay Problem i. Usually Not Admissible v. Supplier LACKS PK a. Is redundant as 401 already requires materiality v. catchall made to include hearsay that still possesses equivalent guarantees of trustworthiness ii. Trustworthiness 1. Elements 1. to an exception has been argued to be excluded and admitted (contested issue) ii. Absence of Business Records i. Exception “Catch All” Residual – Rule 807 a. Unless Source of Info Indicate Lack of Trustworthiness VII.
Must testify that W made the statement about the event when it was still fresh in her mind a. Record Made or Adopted by W 1. Poor Memory Reduced 1. Must testify that letter accurately reflects her knowledge at that time a. testimony W routinely makes accurate records of this time. Treasury departments receipts 2. Trustworthiness is considered on case by case basis i. of a govn’t agency setting forth 1. EXCLUDES i. WHY ONLY Π? IX. Requirements i. If W doesn’t verify. W should verify accuracy of record at time when event was fresh in memory ii. To be received as an exhibit adverse party must offer it c. Prosecutor will use to admit the writing i. Purpose i. Against govn’t in criminal cases 48 . Can ONLY be read to jury 1. Document is a substitute for Ws testimony at trial ii. Made When Fresh 1. statements or data compilations. reports.b. Lack of present memory compels party to choose between such a writing or nothing d. From W record. Applies to i. recorder must testify that record contains accurate account of W’s statement ii. In civil cases AND ii. Public Records – Rule 803 (8 & 10) a. Public officials own 1st hand observations i. Offered to prove the truth of facts asserted in record e. Made close to time of event v. Matters that the law requires. The public agencies own activities a. Eye witness must testify that she once had personal knowledge about what happened iii. W makes statement to 3rd person who prepares record i. Investigative reports can NOT be offered against ∆ 3. W will testify as to accurate statement made to recorder. NOT admitted as an exhibit iii. the agency to observe and report a. Better to use what was written down than present testimony ii. in any form. wouldn’t have signed if not accurate vi. Necessity 1. Requirements i. Must testify that W has insufficient recollection to testify fully and accurately about the event a. Records. Reports that set forth factual findings result from an authorized govn’t investigation a. Rainfall records of weather bureau b. Rationale i. Personal Knowledge 1. Accurate Reflection 1. Insufficient Recollection 1. W can’t remember making record or what is in it iv. Adopted a. Using writing accurately records to show that W vouched for reliability of document 2. Criminal cases things observed by police officers and other law enforcement 1.
Rationale i. EXCEPTIONS – D Unavailable (DIFF) I. Conclusions as to fault 1. unless the source of info or other circumstances indicate lack of trustworthiness b.803(6) c. Personal Knowledge Required by D (p. General – Rule 804 a. 22) b. NOTE: you can NOT admit something under this rule that is excluded under business records . Opinions ii. Preference is for live testimony and will resort to these exceptions only when testimony is not available 2. Reliability Trustworthiness and Necessity 1. Investigation by govn’t agency into plane crash that concludes pilot error was reason for crash ii. Includes i. Hearsay allowed only when D could not meaningfully testify 49 .b. D Competency i.
Lack – 804(a)(3) a. Refusal to Testify – 804(a)(2) a. Memory. D does not have to die 2. “statement” includes part of D opinion 2. Necessity 1. b/c D has nothing to loose ii. Sincerity Reduced or Eliminated 1. A continuance can be used to postpone trial until sickness is over 4. In another country b. Dying Declarations – Rule 804(b)(2) a. Privilege – 804(a)(1) a. Unavailability – Rule 804(a) PRIMA i.Statement Against Interest . travel fees 1. Absent – 804(a)(5) a. “X shot me” b. Other evidence of wound suffered c. 22) 1. NOTE 1. Tries to omit statements of suspicion a. D persists in refusing to testify despite an order of court 3. Belief Proven a. Especially in criminal case where unavailability has constitutional issue ii. Requirements i. Rationale i. Proponent unable to get D to attend i.Forfeiture by Wrongdoing a. Don’t want homicides w/o evidence. D own statements about his condition b. D validly asserts privilege 2. Personal Knowledge (p. D statements to others 50 . Dying Declarations . I’m going fast. If D claims any of the above and result of proponent wrongdoing to prevent W from attending or testifying iii. More relaxed rules than normal opinion testimony 3. What i. under belief of impending death b. we overlook inability to cross examine d. Opinions 1. Judge will do 403 Balance Test on it c. NO hope of recovery a. Offer to pay reasonable W expenses. Statement made by D. if D was shot in back then he couldn’t have had opportunity to know it was ii.c. D whereabouts are unknown and beyond subpoena power of court 1. NOT Unavailable 1. Unavailability is based on the D’s testimony not whether D can be present in court 1. so if victim can give us something – we want that so badly. D must be physically and testimony (deposition) unavailable II. D Competency i. Illness or Death– 804(a)(4) a. get a priest” 3. D must believe death is imminent 1. “I’m a goner. Proponent must show testimony could not be obtained by other reasonable means i. D testifies to a lack of memory of subject matter of D’s statement 5. D must be Unavailable (physically & testimony) ii. Present or to testify b/c of death or then existing physical or mental illness b.
Corroborating Circumstance indicate trustworthiness of statement a. Statement that reasonable person would think would have a negative effect on D b. A reasonable person in D position would not have made the statement if it weren’t true b. Debts owed c.NOT Admissible UNLESS 1. Sincerity Reduced or Eliminated 1. Statements describing events leading up to injury a. Personal Knowledge (p. Pecuniary – Civil Liability a. Necessity d. Motive i. Used in prosecution for homicide or any civil case v. Repeat i. Statements identify assailant who caused injury 2. Confrontation Clause – 6th Amend i. Statement Against D Interest When Made 1. Other Evidence i. 22) c. D must be Unavailable (physically & testimony) ii. Other evidence linking D to crime 2. It is likely to be reliable ii. 56) a. Rationale i. Offered to Acquit or Incriminate ∆ . Competency i. What i. Requirements i. D does NOT have to be a party to suit 2. Disserving statement by D 1. Statement Concern the Cause or Circumstances of D imminent death 1. b/c all people tend not to make damaging statements against themselves unless they are true 2.iii. Constitutional Issue (p. Ownership Interest 3. Economic Interest b. Character i. Statement given to police implicating someone else isn’t against his interest and is self serving i. States can interpret the fed rules more broadly 51 . Tort liability d. When statement made would D have made voluntary plead guilty or been exposed to criminal liability c. Relationship of D to ∆ b. D repeat statement consistently and spontaneously. Admitted against ∆ or by ∆ III. Statements Against Interest – Rule 804(b)(3) a. “X has been stalking me for 2 days” iv. Against D interest when made a. Timing of statement made e. so that others heard d. Penal Interest – Criminal Liability iii. Timing i. Against Interest a. So parts of this confession are inadmissible 2. Was there a reason for D to lie when made statement ii. Statement may not be let in if ∆ doesn’t have ability to cross W b.
If party who evidence is now offered against did NOT have opportunity and motive ii. Criminal Trial . From unaided memory or by refreshing recollection by use of transcript 3. Party. Proceedings must Involve same or very similar issues 2. Testimony of W who was present at time testimony was given in prior proceeding a. ∆ or their attorney is not allowed in grand jury room but Π can cross D ii. Type of proceeding in which testimony is given b. Transcripts of prior hearing 2. Who? b. W Competency i. Confrontation Clause issue 1. Ask Questions to D before? i. Out of court statement was itself made as testimony in another hearing or deposition ii. Had O and M to develop former testimony f. Rationale i. must have had 1. Opportunity and Motive to develop testimony in prior proceeding was meaningful 2. Forfeiture by Wrongdoing – Rule 804(b)(6) a. NOT Affidavits or Statements made to police or other law enforcement e. Testimony issue must relate to that of proponent in current a. made by someone other than ∆ IV. # of issues and parties 2. There is NO opportunity for ∆ to cross examine W that Π calls 2. that Statement is offered against. Someone w/similar interest in developing testimony i. Former testimony can be Admissible 1. Necessity 1. What i. Former Testimony – Rule 804(b)(1) a. But must be fair to party c. Trial strategy c. Statement given at another Hearing – Deposition – Trial iii. At time of former testimony c. Sufficient Similarities of Parties and Issues 1. BUT testimony that Π elicited can be admissible against Π in current trial V.Grand Jury i. So Constitution puts limits on state ability to use non disserving remark contained in a larger declaration against interest. If predecessor in interest of party who evidence is now offered against a. Since former W is not available then we will take their testimony anyway we can a.i. Former Testimony Admissible 1. Ask Self a. Incentive to ask kinds of questions we would expect party to ask if W was testifying now? iv. Direct or Cross or Redirect of D 1. Civil Trial i. Oath . Requirements i. If certain requirements are met then they deemed reliable b. In Camera Hearing 52 .Testimony must be given under oath d. D must be Unavailable ii. Substitute cross examiner b. Potential penalties or financial stakes d.
Past Conviction (609) c. Attacking & Supporting Credibility of Declarant – Rule 806 a. CONFRONTATION CLAUSE . Co-Conspirator (801(d)(2)(E) iv. That result in causing D to be unavailable iv. Confrontation of W c. No limit on subject matter that can be offered against ∆ v. Who & What i. Exclusionary Tool 1. D must be Unavailable (physically & testimony) ii. Non – Character Impeachment 1. NOT Covered 1. Attack Methods i. Object on Hearsay Grounds to Admission of D’s Statements 2. NO Specific Instances i. Limits Π use of hearsay against CRIMINAL ∆ b. Spokespersons (801(d)(2)(C) ii. Opinion or Reputation (608(a)) b. Contradiction by Other Evidence ii. Live W Prior Statements admitted under 801(d)(1) a. Purpose i. Character Based Impeachment 1. Opens Credibility of W to Attack or Support i. Contradiction by Inconsistent Statement (613) 3. Overview a. b/c Party can attack their own credibility by taking stand 2. complied passively or w/o protest in wrongdoing iii. 52) 53 . Individual Admission under (801(d)(2)(A & B) a.i. Forfeiture by Wrongdoing (p. Allows ∆ to keep out certain types of evidence 2. b/c Parties can attack credibility of testifying W in normal fashion c. Permits litigants to attack a hearsay D’s credibility by most of techniques available against live W b. Judge must do an in camera hearing to determine that it was ∆’s coercion that made W unavailable b. Hearsay Admitted under (803 or 804) v. Proof of Bias 2. Party knowingly engaged. Requirements i. Evidence of Untruthful Character a. Party forfeits right to 1. Proponent can offer ALL Ds statements 1. Agents (801(d)(2)(D) iii.6th Amendment I. Procedural guarantee of reliability via cross examination 3. Designed to prevent a ∆ from upsetting the normal operation of system VI. Rationale i. b/c hearsay D that isn’t available can’t be cross examined and (608(b)) bars extrinsic evidence of specific instances to prove untruthful character D.
403 Balance Test f.403 Balance a. W if trial stops iii. confusion of the issues. CC wasn’t originally intended to preclude trial by affidavit II. D appear for cross examination ii. Yes → No CC problem – admissible . More difficult to tell a lie about a person to his face than behind his back. Cross Examine this W i. Rationale . ∆ forfeit confrontation right by wrongdoing intending to keep D from testifying v. Harassment. W safety. Necessity of ∆ right substantially outweighed by harm i. No → CC Violation .403 Balance Test d.403 Balance Test b. In criminal trial. 801 . Giles 1. but if lie is told it is told less convincingly 2.Domestic Violence iii. Not Absolute Right ii. If concerned questions will harm W a. D unavailable to testify and did ∆ have prior chance to cross examine iii. Forfeit if Disruptive Behavior or Voluntary Absence from court 1. b/c statements made out of court don’t allow ∆ to cross examine D at time they were said ii. Test Analysis a. ∆ killed former girlfriend. Judge can order ∆ to be gagged or removed or held in contempt 2.Prior statement by W at trial . EX . Historically Hearsay i. Yes → No CC problem . 25) 1. Be present at ∆ trial i. co-∆. Have Face to Face Confrontation of W offered against him i. Necessary to fairness and integrity of fact finding process c. Strict application of CC would not allow D to testify to hearsay statements unless they fell w/in an exception 1. ∆ intentionally intimidates W who is going to testify against ∆ 2.Admission by party opponent) ii. Π.Inadmissible III. Limits by Judge – Rule 611 (p. ∆ Right/Protections in CRIMINAL Trial a. Must be offered against Criminal ∆ → CC Analysis i. Inconvenience to court. Sincerity a. Statement Not Testimonial iv.Is evidence hearsay? i. use of hearsay evidence may violate ∆’s right to confront and cross examine W offered against him 1.i. found ∆ forfeited right to cross examine her statement to police. Rationale 1. (Expect Berp – DIFF . Public interest in having matter resolved iv. Waste and Expense of Suspending Trial ii. Yes → offered in Civil Case or Π i. No → No CC problem – inadmissible c. No → No CC problem – admissible . interrogation that is repetitive or marginally relevant 54 . Statement a Dying Declaration e. ∆ loses ALL CC rights 1. Yes → Does evidence fit into an exception or exclusion? i. Π didn’t have to show ∆ purpose in killing b/c Crawford and Davis framed forfeiture in equitable terms c. prejudice. Court duty to resolve matter quickly b.
∆ had a prior opportunity to cross examine D (Crawford) iii. UNLESS a. In appropriate case to other competing interests a. 37) IV. Lying can’t remember – maybe violation a. Formality to questions i.Advice under Miranda .Separation of interviewee from any suspect b.NOT another purpose 2. Shield child W from trauma of court testimony ii. Testimonial Statement i. Modern Application a.Calm. Forces W to submit to cross 3. there are other protections that provide enough reliability to admit b.No CC violation 2. May be no choice but to strike the direct testimony from record but must look at the purpose of the question on cross and the role that the answer if given would have played in the defense iii. NOT Admissible b/c of CC 1. D is Unavailable (p. Former Trial i. Compares purposes of CC w/harm in admitting hearsay 1. W Claim Privilege . made out of court (p. 50) 2. Backward looking Description of incident .“What happened” i.2.Structured Question . W will give this statement under Oath 2. W evasive on Cross 1.Grand Jury – Deposition – Affidavit b. 50) (Roberts) b. Preliminary Hearing . Reasonably Expected to use in later criminal prosecution 55 . Jury can see W demeanor c.Self Incrimination 5th Amend (p. Unless ∆ can impeach W w/poor memory & credibility b. 71) 1. Honestly can’t remember .Tape Recording . Same ∆ or different 3. tranquil. Prior Statements of Identification of ∆ (p. ∆ argue Π wants statement admitted w/o fear on cross specifics can come out 3. ∆’s right defeated 2. Primary purpose is to aid investigation a. EX – made to social worker in child abuse case 4. Claiming privilege can be avoided by granting immunity to W after W could testify fully w/o fear of incrimination a. If offered to prove truth of matter asserted . Permits jury to observe demeanor of W in making testimony and aiding jury in assessing W credibility ii. IS Admissible IF 1. Harm i. 403 Balance Test i. Elements of Testimonial (Davis & Hammond) 1. Can severely prejudice ∆ by inability to uncover flaws 1. Station setting . ∆ can impeach W inconsistent statement 4. Where ∆ could not cross examine a. Even though ∆ wasn’t able to cross D when statement was made. D IS In Court and Available for Cross Examination a. Rationale i. ∆ can’t test W b. Former Testimony by D. safe atmosphere . Denies event happened – maybe violation a.
40) a. Rational i. Even if the child statement are relayed to police 4 prosecution V. CRIMINAL Co-Conspirator Trials a. Made w/o recognition it relates to criminal activity 7. Questions are a. *Identification of ∆ (p. Dying Declarations (p. D confesses to crime and implicates ∆ ii. unless he takes stand ii. 5. Separate Juries 1. Off hand remark about murdering someone b. Made to further conspiracy and not knowingly made to police i. Devastating to non-confessing accomplice case. Maybe in Due Process Clause of 5th & 14th Amend a. Testimonial statements made by confessing ∆. 51) a. that implicates a non-confessing ∆ ii. such that it deprives him of constitutional rights 1. If non-testimonial statement is unreliable is there protection anywhere for ∆? 2. Excited Utterance (Depends) c. Postpone trial of B and try A first. To Establish or Prove Past Event 6. Childs statements about abuse as long as parent or Dr. 1 for each ∆ and B jury removed when confession evidence of A given 56 . 44) a. Made for non litigation purposes 6. 45) a. Sever Trials 1. Non Testimonial Statement i. as it will violate CC 1. How to Avoid CC (Π wants to prosecute both) i. What i. Unfair Non-Testimonial Argument 1. Statement for Medical Treatment (p. Jury will NOT be able to limit the evidence to only confessing party case c. And Objectively appears there is NO ongoing Emergency b. Confession can’t be used against ∆ unless meet Rule iii. 34) 1. Declaration Against Penal Interest (p. 51) i. Confessor statement NOT being offered for truth of matter asserted? b. Co-Conspirator Admissions – Eavesdropping (p. In custody or in response to interrogation. Use 2 juries. This statement can NOT be offered against non-confessing ∆. Hearsay Exception (p. Excited Utterance (p. Made in course of going about ordinary business ii. Is same scenario as Crawford iii. If unreliable hearsay would render trial fundamentally unfair b. Will be admissible though! 5. Informal circumstances 4. 37) i. BUT problem b/c this reasoning mimics Roberts reliability holding and Crawford overturned this part of case iii. Objectively appear to be aimed in part to address on ongoing abusive situation or need for medical care b. NO CC Analysis Required (Davis) ii. so A can be compelled to testify against B ii. 42) a. Letter written to guy about dogs in prison b. Declaration Against Penal Interest (p. Types 1. Even if implicates another person too 3.a. Business and Public Records (p. Crime victim to Dr. If not made to police i. 50) 2. Unable to cross examine confessing co-conspirator.
Π or parties agree to delete all references in confession that relate to ∆ a. Benefit of Joint Trial a. Even w/limiting instruction b.a. STRICT Rules if have Joint Trial a. Are Facially Incriminating hearsay iv. In connection w/obvious blank. That implicate Self and Non-Confessing Accomplice ∆ iii. Offered Against other Confessing ∆ vii. Bench Trial iv. Replace ∆ name w/blank space or word deleted i. That implicates Self and other confessing ∆ iii. Testimonial Statement made by Confessing Co-Conspirator 1. Exclude from Joint Trial . Exclude from Joint Trial . Delete ∆’s name and reference to ∆ existence b. when it conforms. Leaves statement that is too close to original 3. Admission of Party Opponent ii. If reference to ∆ is so frequent or closely interrelated w/references to confessor conduct that little would be left of statement after editing viii. can’t ask W if ∆ arrest was based on confession – link then became clear c. Minimize burden on W. Π and court c. Replace ∆ name w/neutral pronouns leaving no indication to jury that original statement contained actual names and standing alone statement doesn’t otherwise connect ∆ to crime 2.Cruz i. Saves necessity of conducting 2 separate trials iii. Can’t Redact a. in all essential respects to ∆ confession vi. That is Devastating to Non-Confessing ∆’s case 1. Joint Trial . Declaration Against Penal Interest 3. Testimonial Statement by a Non Testifying co-∆ ii. A would take stand and testify BUT a. That is Devastating to other confessing ∆ 1. Doesn’t matter if confession is untrue v.Bruton Doctrine i. Both statements are “Interlocking” 1. Deal 1. Corroborates other confessing ∆ statement iv. Makes revisions transparent b. Even w/limiting instruction VI. Offered Against Confessing Co-Conspirator vii. Confessing Co-Conspirator does NOT Testify vi. Π would not want to offer A’s statement implicating B against A at joint trial unless A has already taken stand v. More economical b. Grant A immunity vii. Redaction or Stipulation 1. Co-Conspirator Admission 2. Testimony by Confessor 1. Avoid delay in bringing ∆ to trial 2. Offer A deal if testifies against B vi.Above Solutions Not Possible 1. Replace ∆ name w/symbol or other obvious indication of alteration d. Case Overview 57 . Redaction that violates CC a. Confession has same facts as non testifying co-∆ v.
Green (good law) i. To rebut ∆ claim of self defense → Π offered statement made by ∆ W → during videotaped station interrogation as a Declaration Against W’s Penal Interest. 58 . Reliability of Hearsay Statement a. asserting spousal privilege W did not testify at trial iii. Produce D at Trial or Demonstrate D Unavailable b. Is determinative consideration when hearsay statements have a testimonial component 3. to prevent abuse of getting a conviction by Π against ∆ when D is unavailable 3. HOLD 1. Outcomes in prior cases turned out the same their reasoning is wrong b/c they based it on things that CC didn’t originally mean 2. EX: Declaration Against Interest in form of accomplice confession to police which also implicates ∆ b. prior testimony or confession) d. FACTS 1. Excited Utterance and Medical statement 2. Prior statement made under oath and was subject to cross examination b. from specific facts surrounding statement 1. Or if statement is “firmly rooted hearsay exception”. If an out of court statement is “Non Testimonial” then NO CC problem ii. CC Problem only happens a. now show that statement had “indicia of reliability” i. Showing of particularized guarantees of trustworthiness. NO CC Problem = Admit 1. grand jury. reliability inferred i. D present at trial. Cross Examination i. Created 2 Prong Analysis that must be met for hearsay statement to be admitted when D unavailable so there was a CC problem 1. Cali v. excited utterance. Necessity a. REASON 1. Testimonial means → prior statement at hearing. depo. CC prohibits use of statement UNLESS D is shown to be unavailable and ∆ was able to cross D at prior proceeding a. D responds to questions about prior statement ii. Looked at original purpose of CC that a “witness” means testimony. REASON 1. b/c focus on intent of D 2. Π must made a good faith effort to obtain D’s presence at trial i. D unavailable – Π tried to get D to trial 2. former trial and police investigations 2. when there is an out of court statement in a formalized testimonial (affidavit.a. White v. original purpose of CC a. Statement of sex abuse of child made to parents and such or police right after crime ii. If meet 1st part. Co-conspirator admissions. NO CC Problem = Admit (against Roberts) 1. Crawford (Rejected reliability as a factor) (2004) i. Unless no possibility of procuring W exists (W death) good faith demands nothing of Π 2. statement can be read into evidence = testifies 2. medical diagnosis c. Roberts (part overruled) (1980) i. If an out of court statement is “Testimonial” no matter how reliable a. Illinois (1992) i. so it only bars “testimonial statements” if ∆ didn’t have right to cross D at prior trial. NO CC Problem = Admit 1.
Look for Hearsay 59 .e. EX . ∆ can ask questions. Persuasive Assurances of Trustworthiness i. Davis & Hammond (Defined Testimonial & Non in police investigation) i. Similar to holdings in (Cali v. That is UNLESS D is shown to be unavailable and ∆ had right to cross previously. 911 Call i. D seeking help against a immediate physical threat iv. thus the statement is untested by cross examination just b/c it is deemed reliable. Not describing past events ii. ∆ may subpoena W b. then make a compulsory process argument ii. Overview a. offer documents. I. Application i. Non Testimonial (NO CC review) 1. D speaking about events as they were actually happening 1. CRIMINAL ∆ Right a. D statements made during Ongoing Emergency iii. Circumstances objectively indicate there is no ongoing emergency and “primary purpose” of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” a. If D believes it was investigation ii. See below too b. Relevant and Material II.Statements were not a weaker substitute for live testimony ii.Not Testifying . → get rid of narrow reading of CC a. Compulsory Process Clause I. offer testimony c. frantic answers a. Test applies to ANY evidence rule. D stating what happened in past for purposes of supporting investigation i. name of attacker so police could know who they would be getting 2. excluded testimony when Π did not establish that D was unavailable 4. Have compulsory process for obtaining W in his favor i. Formality of questions low. Roberts wrong b/c based decision on reliability of the hearsay statement and left this up to a judicial decision of reliability. But reliability is unpredictable as seen by lower courts in Sylvia Roberts case e.3. Allows ∆ to get evidence admitted that is usually inadmissible under rules of evidence 1. Inclusionary Tool i. Similar to holding in (Bruton) even if ∆ did have opportunity.∆ can introduce a confession to crime by someone else that is normally excluded b/c hearsay b. Testimonial (CC review Applies) 1. Rather than learn what happened in past v. Green) →Excluded statements if ∆ didn’t have ability to cross D like b. D in middle of ongoing emergency iii. Questions asked by 911 operator were necessary to resolve emergency 1. “primary purpose of interrogation is to enable police assistance to meet an ongoing emergency” a. not just hearsay 1. D Not acting as W . Elements i. So if you can’t get it in any other way and it’s critical and has assurances of trustworthiness. Obtain and present all evidence that is critical to defense and has i.
Trustworthy facts corroborating X’s confession b. Personal Knowledge Foundation (Rule 602) i. Excluding could violate ∆ CP rights ii. ∆ tries to show that X has confessed to crime that ∆ is trying to show innocence b. “He seemed drunk to me” “she seemed crazy to me” c. Reliable 1. Conclusion IF b. X is unavailable to testify i. Uncle Jerry Standard i. Inference. Corroborative evidence of an eyewitness c. Is this is the kind of opinion uncle jerry would be qualified to give? 1. Hearsay . But you can exclude ∆ evidence if it has little probative value and risks unfair prejudice or confusion 2. In form of Opinion.Π shows that X was in jail at time of ii.3rd Party’s Confession to Crime (Chambers) 1. But doesn’t ban A from testifying against B b. charged as coparticipants ii. Statement was Declaration Against Interest but excluded originally b/c state excluded statements of penal interest 2. Typically called b/c W has PK about facts relevant to the case b. Necessity + Helpful 1. Result i. Overview a. Personalized Knowledge 60 . Usually don’t allow opinion unless necessary to case and helpful to jury II. Declaration against interest 4. Lay Testimony – Rule 701 I. Subjective Statements. Result from process of reasoning in everyday life i. UNLESS . Ex i. Made to close friends = more reliable 3. A statute banning A from testifying on behalf B. “I saw W when it was purchased” b. FACTS a. Accomplice Testimony a. OPINION EVIDENCE a. Can’t examine Π evidence and deem it so compelling that ∆ can’t present evidence that someone else committed crime i. Opinion is rationally based on perception of W and drawn from that knowledge 1. State or Federal Rules Restricting Evidence i. More reliable for W to testify to facts w/in PK and allow jury to draw conclusions ii. Scope of Testimony a. Statement is relevant and material to ∆ case . RULE a. And violates B’s CP rights E. Holmes a. Arbitrary or Disproportionate Standard 1. Inequitable b/c favors Π consistently ii.1. Rule of Preference NOT Exclusion d. Senses i. Excited Utterance – spontaneous confession 2. Show W intimate association and duration to event that forms basis of W opinion a. Rationale i.
ill 2. Telephone voice. Facts Difficult to Describe i. Elderly. Explain or Avoid common terms that have a specific legal meaning d. “I could see he was dead” (lay foundation) ii. Can be exclusive to that W alone ii. weak. Facts to Backup Opinion i. Facts and Opinion Necessary for Decision i. Foundation of familiarity w/substance is established iv. Person suffering from specific disease or injury b. Opinion is helpful to a clear understanding of Ws testimony or to determination of fact in issue 1. bulky. “it was a guilty tone of voice” i. Voice – Handwriting – Photo a. Substance appeared to be a narcotic a. Identification 1. NOT based on Scientific – Technical – Specialized Knowledge 1. Helpful to Jury i. Must be laid to show W has some experience in observing rate of speed of moving objects iii. Appearance or Condition of Person or Thing i. degrees of light or darkness a. “arm was flimsy and his body was cool” b. Narcotics 1. Testify to Unusual – Abnormal . Age – Condition 1. beverage tastes like whiskey. Use opinion If facts can’t be adequately described and presented w/force and clearness b/c difficult to explain. Objection: Prejudicial probative – 403 III. NOT 1. Allows jury to connect an inference to determine the fact a. about 60 years old. EX -Tasting cocaine to know it is such c. Particularized Knowledge based on Experience i. complex ii. b/c Jury not helped by testimony that tells it what result to reach c. Can’t make an ultimate inference of a parties guilt a. Subject Matter of Testimony a. “I don’t think he’d been dead too long” (Maybe ok if foundation) e. Speed of Moving Object 1. Must be laid to show familiarity w/identification means ii. If W not able to express self 2. Suspicious Movement – Drunkenness – Insanity 1. Foundation a. strong. Opinion is very Similar to Essential Element in case 1. State of Emotion i. Based on lay person particularized knowledge 2. bank surveillance video 2. Heavy. Insanity a. Foundation a. Sense Recognition i. Estimate mph – Fast – Very Fast 2. Value of Service/Business/Home 61 . Conveys more than what facts alone say b. red. Size – Weight – Sound – Distance – Sight 1. Manner of Conduct i.i.Bizarre conduct (NO foundation) c. Angry – Was Joking – In Love – Strong Affection For Each Other d.
product of reliable principles and methods. Takes away job of jury and judge ii. Homeowner value of home v. NOT Admissible i. Can discuss evidence not usually admissible to jury b. Results from process of reasoning which can only be mastered by specialist in field b. Provides jury w/more info so they can make a more informed decision c. ∆ argue i. May Be . To bring judicial practice into line w/practice of experts when they are not in court iii. Agency or Authorization 1. Expert basis opinion or inference on reasonably reliable data and facts iii. terms. reliably applied to facts of case iv. Favors party opposing expert testimony 62 .Necessity i. Must ask about Facts a. Expert testimony holds greater weight than lay W a. Not expert testimony b/c labels are misleading but if you see through this it is just a logic puzzle f. surrounding circumstances of employment ii. “I don’t think he’d been dead too long” a. Describe intricate workings of narcotic distribution network g. EXPERT TESTIMONY – Rule 702 I. Daubert Reliability Factors (702) 1. Rule 403 Balance Test 1. Rationale i. Existence or nonexistence of elements that show if a K existed iii. Purpose i. Hieroglyphics 1. Objection . Owner or officer of a business b. How manufactured 2. Are able to draw inferences that jury members aren’t able to draw ii. General a. Can’t give opinion that express K was made 2. Proper Basis (702 & 703) 1.1. Must ask about Facts a. Benefits to Offering Party & Harm to Other Party 1.Only expert can decide how long someone has been dead b. Specifics of Narcotics 1. Improper a. Hearsay info and couch observations as generalized opinions rather than 1st hand knowledge d. Can’t give conclusion of authorization to do something 2. If this evidence doesn’t come in then the evidence would be out totally b/c no one else to testify other than medical examiner but he would have looked at body several hours later b. Opinion testimony is disfavored except when necessary ii. Proper Topic of Expert Testimony (702 & 704) 1. Requirements i. nature. W can give opinion on value or projected profits b/c position in business a. Goes into province of jury b. Who was W employed by. Contract of Agreement 1. How Long Dead 1.
Judicial 104(b) 1. Opinion is based on sufficient facts or data b. Matters of Common Knowledge 1.2. Expert Qualifications – Rule 702 a. Of Scientific. When impermissible testimony is given w/in larger body of unobjectionable testimony concerning procedures that jury could easily have drawn same conclusions expert W did f. NOT Expert 1. That creates the incentive to get rid of cases quickly “silicone case” II. so jury probably too a. Measured by nexus between W area of expertise and topic testifying on 1. Abuse of Discretion 1. Rare level of knowledge iii. NOT Helpful to Jury i. or Specialized Knowledge will Assist Jury to Understand evidence in deciding case 1.Assist Jury i. Opinion is product of reliable principles and methods c. Proponent of testimony must satisfy judge by preponderance of evidence that a. Education vii. Things everyone understands. experience… ii. Appellate Review Standard i. Beyond the “ken of jurors”. Technical. Scientific – Technical – Specialized Knowledge i. Hobby 2. Personal investigative experience b. Protects opposing party by forcing proponent to present expert opinions w/o factual foundation that supports them v. Judicial Determination (104(a)) of expert qualification III. supplying info or insights they would otherwise lack c. Harmless Error i. Question isn’t did they get it right or wrong. Conflicting Experts i. Expert has reliably applied principles and methods to facts of case e. Deferential standard of review a. Offer testimony as to their education. NO License Needed ii. Explain how process works 2. Training vi. Skill iv. Imprecise generalizations a. Topic is being cloaked in expert testimony even though commonly known by jury 63 . Life Experience 1. Based on nature and extent of W knowledge and NOT title iii. Proponent of expert show how they can be an expert 1. A conflicting experts can both be properly admitted and doesn’t foreclose issue to jury and jury should decide if they conflict and who they believe b. Opposing party has right to cross W about qualifications c. but did they abuse their discretion 2. Use of newspaper articles b. Not providing empirical evidence or studies to support imprecise generalizations a. Narcotics v. Proper Subject Matter of Expert a. Standard . How to Establish Expert i.
Whether this particular eyewitness identification is Accurate or Unreliability 2. “conduct was not justified under the circum” ii. Opinion on Credibility 1. general psychiatric mental state iii. what to think based on party actions. If these are not present in the case. Can NOT testify about in insanity or intent defense i. Delayed reporting. General problems w/eyewitness identification 64 . Educate jury about effects of abuse i. Π or W a. “Did T have capacity to make a will” b. Oath – Demeanor Evidence – Cross Examination 1. Tells jury what conclusion to reach. court doesn’t give jury task of detecting lies 3. CRIMINAL Insanity Defense . If jury applies experts definition case could be improperly decided 3.(Hinckley Exception) a. Explain that victim’s behavior is consistent or inconsistent w/crime having occurred 2. Providing definition of deadly force c.Rule 704 1. Presenting and explaining diagnoses ii. Conclusory opinions that the crime did or didn’t occur b. Testing ∆.2. Common experience of jury provides sufficient basis for assessment of credibility b. “not warranted under the circum” iii. Whether ∆ had severe mental disease or defect iv. Invades province of jury ii. CAN a. how tests were performed. So jury can accurately determine credibility of victim b/c they don’t have ability to make this type of evaluation iv. “totally improper” vi. CAN Testify i. inconsistency and recantation in sexual abuse trial ii. by a legal term explaining its legal effect i. Rationale a. NOT Conclusion a. NOT testify to a. Harm a. Jury has 3 lie detecting tools i. Opinion on Eyewitness Identification 1. Estimate of criminal responsibility 2. NOT Imply Credibility of ∆. CAN testify to a. Mental State and motivation at time of act (in clinical terms) iii. Satisfied element of crime b. “conduct was totally improper” iv. BUT under 702 – must be HELPful to jury i. Exclude opinions phrased in terms of inadequately explored legal criteria i. Rationale i. Explain why crime may cause certain bizarre behaviors of victim after crime i. Jury will forego own common sense and rely on expert testimony ii. Characteristics of such disease or defect v. “∆ possessed narcotics w/intent to sell” v. Opinion on Law & Ultimate Issues . Sexual abuse and rape trials b. like truthfulness of hearsay. CAN give opinion on ultimate issues that doesn’t pre ordain the outcome a. “Other parties statements are truthful and believable” c. ∆ appreciate wrongfulness of behavior ii.
Rape. Similar to battered women’s syndrome experts 1. State then argues that b/c victim suffers from syndrome must have been raped ii. Thus rehabilitates victims credibility w/o a diagnosis b. Π call expert in case-in-chief . Non-Diagnostic Testimony a. For evidence that is a reliable syndrome i. Can be introduced w/o 1st victim credibility being attacked by ∆ b. Judicial Notice a. Example 1. jury not be able to make appropriate inferences about this directly from their life experiences iii. Daubert Preliminary Hearing a. To explain to jury that the research has been done 2. Rape trauma syndrome iii. Offers expert testimony that explains counterintuitive behaviors generally 2. Admissibility of Expert Testimony 1. Defensively i. Cross Racial Identification i. Syndrome Evidence . Π Expert a. Diagnostic Testimony (Rape) a. Battered women syndrome iii. question of who raped victim is still open v. Offensively i. b/c this type of ID isn’t completely accurate ii. More likely jury will use it appropriately than if expert interviewed person since jury may just simply accept experts testimony d. acting the other way is consistent” 65 . To help jury determine if eyewitness id is credible b. Π rehabilitates victim credibility after ∆ attacks that didn’t happen or victim is a liar 1. Child. Offers expert testimony that diagnose victim w/syndrome 2. Using an Expert Defensive and Offensively to Prove Causation 1. If Expert Not Interviewed Eyewitness 1. “the opinions of experts who have examined the victim are much more likely to be seen as vouching for the victim’s story than the opinions of experts who have never examined the victim” ii. Human memory and perception problems 1. Defensively i. Battered Wife i. Not to specifically diagnose particular victim in case as suffering from syndrome iv. Despite this.i. Common sense inferences may be off mark 3. Offensively i. Helpful 1. Where you prove your burden that expert meets factors to determine admissibility of the expert testimony 2.To prove that rape occurred 1. Π introduce syndrome in case-in-chief – to rehabilitate victim credibility 1. NOTE a. Why 1. “acting this way is consistent w/syndrome. Use profile evidence to help them understand superficially bazaar info 2. Sexual Assault. Post traumatic stress disorder ii. Rebuttal to rehabilitate victims credibility after attack by ∆ ii.
Testimony must support what it purports to show 2. doesn’t pin point an exact behavior that is consistent w/rape trauma syndrome 2. Evidence is so specific of the facts of this case then there becomes a 403 problem b. Means i. Methods of Proof . NOTE .Π don’t support adopting Daubert and Kumho standards and ∆ do ii. Matches up with what happened in case and jury will hear the testimony and believe that this syndrome is true 3. Validity of Technique applying Theory (reliable principles and methods) c. Theory or technique has been subjected to peer review and publication 1. Rate of Error i. Known or potential rate of error of theory or technique c. Tested i. Π responds . jury could punish him for his past abusive and controlling behavior b/c expert is vouching for this c. then X happened” trying to place ∆ in category of people that have these traits b. Proper application of technique (Reliably applied to facts of case) d. common sense idea that a victim will behave a certain way. Expert is being used Defensively i. Theory or technique has been or can be tested 1. to show jury that there isn’t a set way that a victim will respond to this kind of trauma vi.will assist jury a. Exists means for controlling its operation e. Test Today i. Expert is willing to make a syndrome up for almost anyone and isn’t reliable b/c it hasn’t been tested i. Separation Violence – similar to battered women syndrome 1. Character Evidence a. Knowledge must be more than a subjective belief or unsupported speculation b. By hypothesis b. RELIABLE Good Science = Scientific Knowledge → Derived by Scientific Method a. Great argument b/c under 702 it doesn’t say what is inconsistent 3. RELIABILITY a. Jury Give Evidence 2 Much Weight IV. 403 Prejudice Issue a. To combat social prejudices. But if there are studies on this area that they are empirically true 2. Judicial Gatekeeper (determine at outset) 1. Seems to be admissible per 702 to assist trier of fact b/c specific element of battered women syndrome would be something that a jury wouldn’t know about b. Peer Review & Publication i. ∆ Objects – doesn’t assist jury a. If expert made these things up then wouldn’t come in per Daubert ii. Test .“Soundness of expert’s methodology not correctness” 1.TRAMP (Daubert & Kumho Tire) a. Judicial Notice 66 .i. It increases likelihood that substantive flaws in methodology will be detected iii. Sounds like character evidence “if elements ABC. BUT no Daubert factors test b/c syndromes are labels and not theories i. Extent to which the technique has been accepted d. Acceptance (Frye) i. Helps Jury a. Reliability of Expert Testimony a.
HOLD a. Published article in scientific journal 2. Vigorous cross examination 2. Frye (General Acceptance Test) 1. Polygraph Test d. ∆ charged w/murder and wanted expert to give testimony on a lie detector test. RULE a. Proper test. theory or principal b. Policy statement of professional association 3. studies of the chemical structure of the drug) 2. “Fit” . Stipulation i. Careful instruction on burden of proof b. Scientific evidence presented concerning scientific knowledge must be reliable b. Intoxication test – Fingerprint Comparisons – Firearm Identification b. Business. It increases likelihood that substantive flaws in methodology will be detected ii. but b/c this was new scientific evidence NOT admissible 2. FACTS a. Testimony must Help trier of fact to determine a fact in issue iv.i. How to ATTACK Junk Science Evidence 1. Explain precisely how they went about reaching their conclusions and point to an objective source to show they have followed scientific method 1. Profession. Proponent of Novel scientific evidence must demonstrate that the evidence i. RELIABLE science = Scientific Knowledge + Derived by Scientific Method 1. Daubert (Scientific Knowledge) 1. Occupation to inference/task at hand i. Frye test no longer controls the admissibility of novel scientific evidence b. Does allow junk evidence in b. RULE a. Proponent doesn’t have to prove reliability b/c theory or technique has been established by precedent ii. Intoxication test – Radar – Blood Test c. All scientific evidence is governed by Rule 702 3. Statute establishes reliability of theory or technique ii. Connection of Scientific. Evidentiary Foundation i. Presentation for contrary evidence 3. Logically advances a material aspect of the proposing party’s case ii. Introducing evidence of expert testimony to prove validity of theory or technique iii. Has gained general acceptance in the scientific community by scrutiny of others in the field ii. Show Peer Review & Publication OR Comes from pre litigation research 1. Πs suing company for birth wanted to introduce expert testimony that showed these chemicals might cause birth defects in humans (in vitro and in vivo tests in animals. SK 67 . FACTS a.RELEVANT a. Purpose i. Learned treatise 2. Creation of the Doctrine i. Stipulate to use results of test for only a certain purpose but it waives parties ability to object or challenge validity of theory or technique ii. Statutory i.
SM . Rationale a.Hypothesis 3. 702 doesn’t ii. business. plumber. Supported by appropriate validation based on what is known ii. Establish testimony comes from pre-litigation research OR 3. rather than caused by under inflating a tire or carry too much weight b. Daubert test includes non scientific testimony i. More than a subjective belief or unsupported speculation 2. Anybody of known facts or ideas inferred from such facts or accepted as truths on good grounds b.Exists means for controlling its operation iii. Analysis After Daubert but Before Kumho 1. Jury can pick out junk non science easier c.4 Factors = Daubert Factors TRAMP 1. Judge Gatekeeper . Rate of Error . Expert based his conclusion on visual and tactile analysis of the tire 2. Peer Review & Publication . Juries give too much weight to expert testimony 4. All experts can testify based on hearsay and offer opinions iv. Logically advances a material aspect of the proposing party’s case 1. psychologist. Π sued tire co for injuries and wanted to call expert in tire failure that said he could tell that a tire had suffered from a manufacturing defect. Establish theory or technique has been subjected to peer review and publication OR 2. FACTS a.subjected to 5. GS a. Tested .a. Accepted . How to meet 1.Extent to which the technique has been accepted 4. No clear line can be drawn between scientific and other expertise b. profession. That it will help trier of fact iii. occupation a. Subject of the inference must be so distinctly related to science. Means . To be sufficient experts must explain precisely how they went about reaching their conclusions and point to an objective source to show they have followed scientific method c.Known or potential rate of error 3. RULE a. Technical or other specialized forms of knowledge 1. Kumho Tire (extended reliability thresh hold test) 1. All experts speak from common knowledge iii. handwriting expert 3. RELEVANT = relevant scientific connection to task at hand i. No reason to make distinction of non-scientific b/c i. Juries are less equip to analyze the evidence b. Proponent by testimony of its own experts a. Economist.has been or can be tested 2. Handwriting evidence iv. Wasn’t clear whether Daubert applies to non-scientific 2. Analysis a. Now more difficult to get in non-scientific evidence b/c now test 68 . Evidence that was considered unreliable to pass Daubert could come in as lay testimony as long as not scientific a.
Based on Hypothetical offered by L incorporating facts of trial 1. UNLESS people that expert learn facts from testify at trial 2. Hypo: L ask on direct and cross a. CAN rely on inadmissible hearsay AS long AS it is a type that is reasonably relied on by experts in same field 1. Cross “Dr. in your town and practice area prescribe?” ii. makes life and death decisions in reliance on them ii. Litigated Facts Perceived by Expert or Made Known to Expert AT Hearing i.assume that J was accurate when she estimated ∆’s speed at 40 and A was accurate when he said road was icy. Expert may learn of facts from others via out of court statements a. Direct “Dr. Can offer opinion as to parties nature and extent a. Does NOT have to have PK of litigated facts 2. b/c expert opinion based on certain assumptions has NO relevance if assumptions are false c. Hospital Records. Applies even if patient speaks to Dr.V. Opinions of Nurse & other Dr.104(b) conditional relevance 1. L can’t make up facts but there must be “enough evidence to support a finding that necessary facts exist” b. Reports & X-Ray iii. “if Π has these symptoms…based on your expertise what treatment would a reasonable Dr. When person expert learns from – gives facts shortly after incident at trial and are still agitated by event – may be admissible ii. Medical Statements – Rule 803(4) for Diagnosis or Treatment a. Dr. L asks expert. Rationale 1. Excited Utterance 803(2) i. Learned Treatises – Rule 803(18) . “In my opinion Π is permanently disabled” b. assume instead that road where collision took place was dry and ice free” iii. EXCEPT a. Validation expertly performed and subject to cross is enough reliability for judicial purposes iii. you heard in this case…. Standard of Presentation of Facts . Litigated Facts Perceived by or Made Known to Expert BEFORE Hearing (Hearsay) i. All facts contained in hypo must be related to facts proved in court a. Litigated Facts Perceived by Expert BEFORE Hearing i.’s Reasonable reliance on other things than patient themselves i. Substantively Admissible – Reasonably Rely On 1. Proper Basis of Expert – Rule 703 a. Statements by Patients & Relatives ii. c.To Pertinent parts of book a. Dr. Rationale i. Nature and extent of parties medical stuff that expert has been treating a. Personal Knowledge of litigated facts – like Lay W 1. Published Treatises – Periodicals – Pamphlets on subject of History – Medicine – Science – Art b. Foundation of Treatise 69 . Doesn’t even have to have seen or meet parties before 3. not to get medical treatment b. Based on these facts and on your training and experience do you have an opinion as to the cause of the crash?” b. Expert assumed to have necessary skill to evaluate 2nd hand info and give it proper probative value and Not to take what everyone says as true iii. Most are admissible w/expenditure of substantial time in producing and examining various authenticating W 2. Based on Facts learned while Attending trial 1.
Can come in to aid jury in determining experts opinion is credible 2. Proponent must establish authority of treatise through 1. Balance Test 1. REVERSE 403 Balance Test i. Lacks in probative value and reliability such that no reasonable expert could base opinion on them c. General – Rule 501 (not enacted) a. Can seek to undermine expert’s opinion by asking about underlying facts v. and can be discussed on cross b. CC trumps privilege 2. Constitutional Issues i. but can be. Right to have unfettered freedom in certain relationships from state’s supervisory or coercive powers iii. EX 1. Data or facts underlying an experts opinion don’t have to be given before he can testify as to his opinion. If probative value in assisting jury to evaluate expert opinion substantially outweighs their prejudicial effect 1. Substantively NOT Admissible for proponent a. EXCEPTION . Right of an individual to refuse to disclose and prohibit others from disclosing info that is confidential in judicial proceeding b. ∆ can impeach W (ask about things) on cross BUT can’t call W iii. What experts in relevant discipline reasonably deem it to be 2. Hinders search for truth by excluding relevant and reliable evidence c. NO substitute judgment for expert in determine what data is sufficiently reliable b. Underlying Facts – Rule 705 1. Relationships 1. To prove truth of matter asserted b. Desire to encourage certain relationships by ensuring their confidentiality even at a high price of losing valuable info d. Help Jury i. Not Required to give B4 Testify a. This Expert – other Expert Testimony – Judicial Notice iv. assurances of trustworthiness against the need for the evidence ii. Promote policy that is external to goals of trial ii. Inadmissible i. TESTIMONIAL EVIDENCE – PRIVILEGES I. told ∆ counsel what boy had said 70 . That underlying facts can NOT be used substantive decision ii. Harm i. Boy asserted 5th amend 2. Govn’t could give W immunity 3. Rationale i.Substance of Underlying Facts of Inadmissible Hearsay 1. Proponent can bring in IF a. Privilege i.i. Mother of boy waived therapist privilege and Dr. Boy confessed to murder to therapist and person on trial for the murder wanted to compel W to testify. Judicial Determination of “reasonable” 1. Presumption against disclosure ii. IF admitted – Limiting Instruction i. Opponent on Cross Examination i. Judge should consider effectiveness of limit instruct F. If govn’t calls W 1. Privacy 1.
Person intended to remain confidential g. when requested for instruction explaining constitutional right to remain silent i. Communications made in confidence 1. Jury Instructions 1. Criminal ∆ has right. Voluntary Disclosure 1. Identity of Source of Information 1. Party must have intended it be confidential ii. By someone authorized to assert it on holder’s behalf 1. 5th Amendment – Self Incrimination ii. Modern i. Person whose interest or relationship is sought to be protected ii. Diversity case 1. 1 Party Waives a Joint Privilege 1. If privilege is based on confidential communication then if it is overheard by another and their presences was unknown. – putting confidential communication in issue 1. Who can Assert Privilege i. Eavesdropper Testify a. Privilege Against Self Incrimination a. Federal Question & Criminal Cases 1. Due to conflict of interest boys L was appointed as guardian ad litem e. Eavesdropping 1. can claim on holder’s behalf iv.3. They can NOT testify 1. Federal = Rule 501 iii. What is a Privilege i. Inference i. Waiver of Privilege i. Law Governs i. Constitution 1. Someone wrongfully discloses info w/o holders consent ii. A Contractual Provision 1. Guardian of incompetent person iii. State Law = Rule 501 f. Criminal or Civil ∆ i. Testifies about confidential communication j. doesn’t waive privilege 2. NOT Waiver of Privilege i. Generally i. Law Governs . “No person shall be compelled in any criminal case to be a W against himself” 71 . Held by more than 1 person. Attorneys or judge can NOT make any comment or argument based on claim of privilege ii. Of privileged matter by the holder or someone else w/holder’s consent 2. Waiving in advance the right to claim a privilege iv. Dr. By the holder themselves or failure to object when privileged testimony offered ii. no waiver of privilege II. Wrongfully Disclose 1. They can testify as to what they overheard b.5th Amendment 1. By person who the confidence was shared with. UNLESS the disclosure is also privileged iii. NO inference should be drawn b/c a party claimed a privilege 1. each can claim privilege h. This doesn’t affect the right of the other joint holder to claim privilege iii. As long as holder of privilege was not negligent. Failure to Claim the Privilege 1. Suing L.
photographing. gunshot residues 2. Fingerprinting. In order to waive privilege must be called at W 3. measurements. double jeopardy v. When privilege asserted questioning doesn’t end but only on subject matter that is covered 2. To Refuse to Testify a. administrative ii. Trial. Intended to permit C to receive informed legal advice and effective representation 1. Can not call ∆ as W 2. ∆ can no longer incriminate themselves ii.2. No Privilege 1. urine sample. Ends . deposition. Oath . The content of the communication leading to exposure of criminal liability iii. ∆ must answer questions or be held in contempt iv.When possibility of criminal prosecution exists 2. Answer that would furnish a link in the chain of evidence needed to prosecute W for a crime b. Compulsion to Submit CAN make ∆ submit to these a. Matters of credibility or that ∆ testified on in direct 2. L/C Privilege – Rule 503 (not enacted but recognized) a. administrative ii. make particular gesture. Begins . L when client is unavailable b. ∆ NOT Required to ever take the Stand a. If ∆ provides statement w/o oath then no waiver ii. Which depends on full and frank communication between A & C 72 . No Privilege 1. Privilege 1. blood sample. deposition. Prohibits Π from Compelling ∆ Testimony a.(Individual. Privilege 1. to write or speak for identification. Government) i. Duration of Privilege 1. Rationale i.W called as W by Π and must take oath 1. Immunity a. hearings. Waiver of Privilege 1. Waiver of Privilege 1. walk.Client . Criminal or Civil Witness i. Is there an appreciable risk that the answer would subject W to criminal prosecution? iii. Takes away ∆ privilege of 5th amendment self incrimination 1.When possibility of criminal prosecution ends a. W provides any part of answer III. hearings. Waives privilege against compulsory self incrimination i. appear in court. Holder . Prosecution greatest weapon to provide ∆ immunity i. Door opens and Π can now reference this fact b. to stand. Judicial Test a. Corporation. Communication Covered a. See Immunity above iv. ∆ takes Oath & Voluntarily Testifies a. Unsworn Statement i. SOL expires. If W believes that answering question would expose W to criminal liability i. ∆ Attorney Mentions ∆’s Use of 5th Amendment a. Judge determines if answer will incriminate W i. Trial.
Blackmon Case 1. Pre-existing professional relationship i. What a. Court can review allegedly privileged communication to determine if it falls w/in crime fraud exception 73 . Interest of society in solving crime outweigh C interest in the privilege 1. Test 1. Law Governs . Disclosure to 3rd Party (eavesdrop) i. Facts discussed in communication c. Parties lack standing 2. Was communication made to enable corp to obtain legal advice and employee is aware of this 4. Balancing Test (Swindler & Berlin) i. Procedure Issue i. Communications are in furtherance of professional legal services a. When a. Corporate Communications i.2. Privilege would probably apply regardless of nature of the conversation d. Privilege i. Dr. hired by A to examine C in preparation of litigation c. C not a party and court breaches privilege 1. W. Allows C to withhold confidential communications (NOT actions) a. Party who is not holder an appeal that relevant evidence excluded f. Did communication concern matters w/in employees duties 5. Were communication considered confidential when made 4. overheard eight or nine words in a conversation between ∆ and L 2. judicial services officer. C must have confidence in privilege so encouraged to tell truth ii. Criminal Case = 6th Amendment 1. Based on subjective and reasonable belief of C 2. FACTS a. As long as client takes all reasonable precautions to preserve confidentiality and intent of client to remain confidential 2. All Communication is privileged or none at all 3. Assistant to attorney. Client’s competency d. by standard ii. Did employee and L act on request of superior 3. Supports why duration lasts after death d. Made between L & C in trial and out b. Crime/Fraud Exception 1. In Camera Inspection a. Right to effective assistance of counsel c. Less about whether the info actually remained confidential e. Documents b. As party in suit. C can sue in separate action ii. Judge excludes evidence b/c erroneous assertion of privilege 1. HOLD a. Made between C & any person that represents A i. C can invoke privilege anytime during trial b. investigator 1.CL e. Refuse to Disclose & Prevent Others from Disclosing 1. during a recess at the trial. IS Privileged b/c trying to keep private iii. Did employee communicate w/L in their capacity as corporate counsel 2.
C or A Testimony 1.Patient i. UNLESS a. Made to Dr. Crime. Joint Clients 1. Disclosure of the name is = to releasing incriminating statement ii. Notice to Appear 1. Relationship Established i. No duty to report. Privilege i. Allows patient to withhold confidential communications 2. “∆ claimed he relied on A’s advice in cashing check” IV. is present for purpose of providing treatment a. UNLESS 1. To obtain i.b. Identity of C & Retention of Services. Physician . Dr. Exchange of $ 1. Waiver of Privilege i. Indefinitely . or Hospital can assert on patients behalf b. No privileges between joint clients who hire 1 A a. No Privilege i. That could have been made by anyone iii. Will is contested L may disclose conversations about C intent. A should withdraw from representation and convince client to do otherwise iv.State Statute d. Duration of Privilege i. Crime will only result in great financial harm 3. Present c. – Dentist – Nurse – others w/Dr. Law Governs . Serious Bodily Injury or Death ii. No privilege when attorney’s advice is used to commit future crimes a. divorce case iv. A statement that C was told needed to appear at trial or sentencing h. to patient i. Place Communication in Issue 1. Identity of C and the fact that A has been retained by C 2. Name is essential to the nature of the case b. Patient knows Dr. Observations 1. Testamentary Exception 1. Dr.Even after death i. Generally a. supervision b. by patient & Advice given by dr. present w/patent in course of treatment 74 . Info acquired while Dr. Insured and insurance company. C testifies or elicits testimony from A concerning communication ii. is present w/patient for purposes of providing medical treatment 3. C places A’s advice in issue a. Refuse to Disclose & Prevent Others from Disclosing 1. Fraud a. in order to honor C interest g. Holder . Party opposing privilege must present evidence sufficient to support a reasonable belief that in camera review will yield evidence that establishes there is no privilege 2. Attorney has duty to report client i. Dr. Communication already revealed by an article c. When i.Patient Privilege – Rule 50 (not enacted) a.
Social Policy 1. No Privilege i. memories. Made for purpose of obtaining treatment or diagnosis of mental or emotional condition 3.Federal Statutory d. to act in professional capacity for diagnosis 1.Patient agrees to waive privilege . Observations (That a lay person could observe) 1. What happened . can testify as lay W) 1. Contract .How did it happen e. Patient is willing to make a frank and complete disclosure of facts. Details of accident . Observation of fact that patient was ill 2. Non-medical info (Dr. Waiver of Privilege i. Civil Commitment Proceedings 2. Required Therapy 1.Rule 504 (not enacted) (Jafee) a. Sensitive nature cause embarrassment or disgrace 3. EX i. Patient guardian . Experience prong 1. No Privilege i.Dates of treatment ii. Info acquired was necessary to enable Dr. Social Worker included 1. Allows patient to withhold confidential communication 2. Privilege repealed if needed to protect criminal ∆ confrontation right a. Every state recognized so Federal courts too c. Description of clothing worn by patient 3. Privilege i. Dr. Jafee Rationale i. Law Governs . Evidence that Π W suffers from mental or emotional condition that may cause doubt on their credibility 2.Psychiatrists ii. can give warning to patient.ii. Refuse to Disclose & Prevent Others from Disclosing 1. Court will allow ∆ to review psychiatric records of Π W and present evidence at trial b. Court Ordered Examination 75 . Psychotherapist & Social Worker Privilege . and fears 2. Licensed Social Workers – Psychologists . Develop Relationship of confidence and trust a. Facilitates treatment for individuals suffering the effects of mental or emotional problem 2. Made to a therapist by a patient a. Dangerous Patient Exception a. NO Balancing a.Personal representative of deceased patient . Sacrificing the truth in light of societal interests ii.Life insurance policy V. Qualified 1. Observation of drugs falling out of patient pocket f. Which would make promise of confidentiality contingent upon judge decision of importance of patient's interest in privacy and evidentiary need for disclosure iii. Effectiveness of treatment 1. emotions. poor can’t afford psychiatrist or psychologist iv. authorities or a person patient identifies as a likely victim e. Advice given by therapist to a patient b. Dr. reasonably believes patient may be dangerous to others i. Holder = Patient i.Therapist can claim 4 patient b.
Prohibits Π to Compel W to Testify against ∆ Spouse a. Spousal Immunity – Privilege Not Testify Against ∆ Spouse (CRIMINAL) i. Holder = W Spouse 1. Duration of Privilege 1. Against Testifying Spouse or Their Kids a. Duration of Privilege 1. Trammel Case a. Spouse or Child Battery . When either Spouse is a Party Does NOT authorize either spouse to refuse to testify against the other or enable either spouse to bar the other from testifying adversely W left note for H on kitchen counter which kids could have seen But b/c of phrasing in letter “Dear Jimmy…Love Louise) deemed confidential EX a. Privilege 1. Husband & Wife Privilege – Rule 505 (not enacted) a. Allows Spouse to withhold confidential communication learned while married i. Rationale 1. Law Governs . Made between spouses while they were married iii. Privilege for Confidential Marital Communications(Criminal & Civil) i. Rationale 1.Rule 505 (not enacted) a. Verbal or conduct intended as communication ii. Clergy Privilege . Indefinite . BUT can testify against ∆ spouse even if ∆ objects a. b. Usually no privilege to refuse v. Protects marital relationship from dissension iii. Refuse to Disclose & Prevent Other Spouse from Disclosing a. Holder -Church Goer i. Privilege 1. Cases Btwn Spouses. c. Social Policy a. Waiver of Privilege 1. Joint Participation in Crime . Clergy member can assert on behalf of CG b. No Privilege 1. While W Spouse and ∆ Spouse are married at time testifying 2. Made in reliance on intimacy of marital relationship b. Parties must have a valid marriage at time of trial iv. About events that occurred before marriage 3. Even events that were before marriage 2.Joint Participation in Crime 2. Spouse or Child Battery b. Vocational and Educational Counseling VI.ii. No unilateral Waiver VII. Rationale i. Abusive Language 2. Promote marital communication iii.Survives divorce and death vii. 2.Routine Exchanges of a Business Nature vi.Federal iv. Encouragement to disclose troubling matters 76 . Terminates at Death or divorce of parties b. ∆ seeks favorable testimony from spouse a. v. No Privilege 1. W can’t be compelled to adversely testify or foreclosed from testifying ii. Holder = Both Spouses ii.
didn’t have to reveal where they got info about journalist ii. Can info be obtained by alternate means 77 . NO Privilege i. “they didn’t do it” D → Priest & Legal Aid L (Admissible) = Catch All Exception (sufficient reliability and trustworthiness) 3. Is info relevant c. Journalist b. Govn’t can’t force you to offer any evidence against yourself iii. HOLD 1. Π L. Even if there is a CL privilege the investigators that issued subpoena for journalists info.” d. Duration of Privilege i. There are no other means to the info b. 501 & Federal CL (Criminal & Civil) d. Communication made for purpose of obtaining spiritual guidance a. Waiver a. at the end of the “talk. ∆ due process rights violated b/c had a right to present statement evidence that trial court improperly excluded 2. After D died. Between CG and member of clergy while clergy is in capacity as a spiritual advisor 3.” Towle absolved Forne f. Must be made privately except if others are present in furtherance of purpose of communication b. NOT Waiver = “I did it. and his legal aid L that he committed the murder 2. Even if this creates a chilling effect on disclosure to reporters ok 1. CG must reasonably believe person he is consulting w/is a member of clergy e. RULE 1. Public interest for disclosure vs. D disclosed communication to other people after priest i. “I just talked to Father Towne and told him that I did it.Statue Statute. Assertion of 5th amend privilege vs. Public Interest of News gathering b. Necessary for justice 2. Allows CG to withhold confidential communication 2. priest and Legal Aid L disclosed D statement ii. Criminal . ∆ rights trump the privilege a. VIII.” b. Test .value of leak is minimal but harm is huge—it endangers lives c. Encourage flow of information to newspapers and electronic media iii.Balancing of Interests a. Journalist must disclose info or source if a. Refuse Disclosure & Prevent Others from Disclosing 1. FACTS 1. Allows Journalist to withhold Identity of Source of Info 1. Miller Rationale i. “I did it” D → Mother & Π L (Admissible) = Declarations Against Penal Interest 2. Qualified Privilege i. B4 sentencing another person told priest.Other religious organization c. Privilege i. the co-∆ mother. Minister – Priest – Rabbi . ∆ right to compulsory power i. Law Governs . For a “heart to heart” 1. Professional Journalist Privilege a. b/c will chill exactly the kind of speech that should be chilled iv. Holder i.c. Morales Case i.
c. Even over objection of informer ii. No protection for info obtained from confidential sources IX. Proof that this document is the K actually signed by ∆ 3. as a step towards admissibility i. Π prove to jury that item seized was same item analyzed beyond reasonable doubt II. Informant’s degree of involvement in crime 2. Communication between Govn’t and Informant 1. If identity of informant would provide substantial assistance to ∆ then Govn’t required to reveal identity of information or dismiss case iii. Duration of Privilege i. If it can’t be tied back to ∆ then it is irrelevant c. Helpfulness of disclosure to ∆ 3. Standard of Proof – Huddleston Standard . EXCEPT . Generally – Rule 901 a. Determine if Privilege Applies i. Govn’t Informant Privilege a.When identity of informant becomes known G.Protect public interest in effective law enforcement Law Governs – Federal (Civil and Criminal) Qualified Privilege i. No Privilege i. Assistance to ∆ Counsel 1. In Camera Proceeding f. b. Judge Determines 1. Balance Test 1.d.104(b) i. No Privilege i. d. Proof that this was gun actually used by ∆ robbing bank 2. Criminal Drug Case 1. Proof that this tape accurately reproduces a conversation ∆ tried to bribe 78 . Tangible object that played some actual role in the act that caused litigation i. Authentication concerned w/reliability b/c evidence must be reliable in order for it to be relevant ii. Allows Π Govn’t to withhold Identity of Informer 1. Ends . Physical Evidence a. AUTHENTICATION OF EVIDENCE I. Proponent must establish that the item is what they say it is.Govn’t Rationale . Govn’t interest in nondisclosure e. Is compelling interest in info e. Jury Determination 1. Ex: bag of white powder found 1. Standard i. Decides if evidence is authentic (probative force it has) iii. Lowest Standard ii. If there is sufficient evidence of which a reasonable juror could determine that evidence is what proponent claims it is a. Gun – Knife – Drugs – Bullets – Currency – Lab Slides – Diary b. Showing that evidence really is THE object that was involved in the act 1. Evidence can’t speak so sponsoring W must speak for it b. Holder .If communication may reveal identity of informer g. Ties together Reliability and Relevance i.
Has been held in a substantially unbroken chain of possession i. Habit Evidence 1. Evidence should be accounted for during time it under someone’s control ii. Testimony of Sponsoring W w/Personal Knowledge 1. Procedure of secret service of tracking procedure to maintain chain of custody III. Show that item seized at scene is same ones that were tested at the lab e. EX . Use lock sealed envelope or container w/custodian mark/initial a. Privileges iv. Routine procedures used by police and crime lab 2. signed or adopted b. Meet Hearsay Rule 802 iii. Mark . Testify that original object had specific unique characteristics and object in court today has the same i. Show that writing was made. Doesn’t prevent admission as long as it meets Huddleston Standard ii.c. Identity of author or genuineness of document 2.“unusual looking hat” b. Type of Evidence i.Distinctive Characteristics a. “Link” i. Relevance of Evidence depends on lab analysis 1. crime scene and computer persons testimony vi. Documentary Evidence a.video is nothing new and is repetitive and distracting a. Chain of Custody a. NOT person who had access to evidence but not possession of it f. To ensure it hasn’t been altered d. Meet Best Evidence Rule 1002 v. If not established go to chain of custody 2. Show adherence to some system of identification and custody ii. Testimony of W w/Personal Knowledge i. Unfair prejudice substantially outweighs its probative value b/c we already have this info in evidence via the pathologist. To show object is same item and is In substantially the same condition as it was at time of crime 1. Spouse. People who had physical custody of object 1. Goes to weight not admissibility ii. Missing Link i. Condition more important when drugs c. Balance Test 403 1. Requirements i. Methods of Authentication i. co-authors. Foundation 1. To make evidence identifiable and eliminate problems of misidentification and contamination ii. Meet 901 Authentication ii. Rationale i. Don’t have to negate all possibilities of tampering or contamination b. Likely to be confused or can be easily tampered with 1. Standard i.Police officer Initial . author of it 79 . Easily Identifiable . Who 1. Can be anyone who observes ∆ write document a. secretary.Serial # .
in any form. 20 years old + 2. statement. could be diary. In a condition that creates NO suspicion concerning its authenticity 3. If a document is old enough then it is unlikely that its authentic and wasn’t just brought out for litigation ii. Who 1. Common sense says no one would frame him w/these documents so being in 2 places was characteristic of someone being in a German hospital and in Russia as well ii. Security Camera that some ∆ sign Document i. Establish that W is sufficiently familiar w/handwriting to offer a valid opinion concerning its authenticity 2. Ancient Documents i. Foundation 1. Show jury a sample of ∆ handwriting to determine if it same 2. What 1. How 1. Public Records or Reports i. Who 1. To prove identity i. Lay Testimony on Handwriting (701) i. Insufficient to prove who made or received the call (doesn’t show identity) a. h. Sufficient familiarity w/handwriting of another person by seeing him write. or data compilation. b/c no assumption that b/c ∆ owns phone that ∆ was one who made or received a particular call b. Foundation 1. report. Can NOT gain familiarity w/another’s handwriting for purposes of litigation d. Fingerprint on the document to show that ∆ was in the possession of the document 2. Process or System i. is from the public office where items of this nature are kept g. Evidence describing a process or system used to produce a result 2. etc. other means ii.b. NOTE – Does NOT have to be public doc. Found in place you would expect if authentic 4. How 1. Voice Identification i. Found documents under his bed f. Expert testify as to whether handwriting sample is same as ∆ a. Established B4 document was written 3. Need to combine this w/another authentication method Eyewitness iii. Comparison by Jury or Expert i. evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office. W doesn’t need to be author c. Personal Knowledge 80 . or a purported public record. Tracing phone call 1. May develop a familiarity with the handwriting just for the trial (thus after the document in question was written) through use of exemplars provided by court and then comparison to the document in question e. exchanging correspondence. Distinctive Characteristics i. Establishing parties 2. Admissible Contents of conversation & Identification ii. Sufficient to prove that a particular call was made to or from a particular phone 2. How 1. Showing that the process or system produces an accurate result ii. Stelmokas 1.
W photo is a fair. W explains the basis for his or her familiarity with the object or scene iii. Testimony of W familiar w/scene or object depicted to say that photo is an accurate and correct representation of scene at the relevant time ii. Someone who recorded the conversation ii. oh no” when told about his knife ii. Speaker knew things that only that person would have 2. “oh no. Operator of machine was competent c. Phone call was made to a number that was assigned to person iii. How does the machine work ii. Surveillance Tape. W must have either seen the call being placed and the number dialed or heard the call being answered iii. Heard the call being answered 3. W is familiar w/object or scene ii. Personal Knowledge 1. There was no editing or tampering iv. Doesn’t have to be photographer b. Recording is authentic and correct k. W w/Personal Knowledge of scene seen a. W must have either seen the call being placed and the number dialed 2. Conversation contents which only that person could know i. Recognizes speaker by content a. Someone who has heard the others voice many times before j. Taken at appropriate time or in connection w/appropriate transaction 3. Process or System 1. Someone who can testify about reliability of process by which picture taken i. Machine was capable of recording conversation b. Telephone Conversations i. Recognized others voice 3. Process or System a. Distinctive Characteristics 1. W recognizes the object or scene in the photograph iv. or good depiction of the object or scene at the relevant time that the W saw 2. true. Foundation 1. How was it employed in particular application iii. Chain of Custody a. Picture and contents admissible 1. How i. ATM photo b. How a. accurate.1. How i. Combination . Forms signed by someone showing evidence was sent to lab w/routing # 81 .detective left a message for him to call and the call came a few hours later. and that in a later conversation with another officer the D said that he knew the first officer was looking for him 2. Method 1. Photograph i. fact that he used both the nickname and the proper name. Have ∆ say something in front of jury so that jury can decide and make comparison 2. Comparison by Trier or Expert W 1. Distinctive Characteristics 1. Someone who recorded the conversation 2. Not alterations made to it a. Do a voiceprint analysis Linguistics analysis and language patterns iv. The caller said the recipient’s name b.
NO Eye W (process and chain) 1. depiction of what happened at the scene iii. created video b. W is familiar with the object or scene b. Business Records 1. Do you believe video is a fair. maintaining it. W recognizes what occurred in the video d. Do you change battery from time to time iv.b. rules. How animation expert took facts of case and made animation out of it ii. Process or System a. How i. regulations and reports (bureau of senses) iii. Prove tape hasn’t been altered i. true. Official Publications 1. Things are so plainly authentic that it’s highly unlikely it could be a forgery b. Statutes. How was it employed in particular application 1. Works w/video system regularly. computer simulation ii. true depiction of an accurate process or system 1. Regular procedure was to fill out a property receipt for evidence received w/case #. How a. Show that video is an accurate and correct representation of scene depicted 2. ATM photo. Eye Witness (Personal Knowledge) 1. Commercial Paper ii. There was no editing or tampering and it worked 1. Examples: i. Surveillance Tape. accurate. accurate. Self Authentication – Rule 902 CONTAC a. Do you have any reason to believe it wasn’t working on the day of the event 2. Notice must be given to opposing party and make records available to them for inspection 82 . Trade Inscriptions v. Video Tape i. W explains the basis for his or her familiarity with the object or scene c. Person who saw it taken out of machine can testify ii. Proves authenticity of record and to establish that it meets the business requirements of hearsay 2. Someone who saw the act take place pathologist. Written declaration by someone who is qualified to testify that records meet the requirements of the business records hearsay exception a. Do you check to make sure it was working properly 2. location l. Offering a forgery is a huge risk b/c anyone can get a copy paper iv. How did you decipher animation iii. date. Foundation 1. Newspapers and Periodicals 1. W video is a fair. investigated crime 2. How does the machine work 1. Someone who can testify that recorder was working properly at the time i. Show it to someone right after it’s taken out of the machine – marked w/number and checked into evidence IV. Chain of Custody a. Taken at appropriate time or in connection w/appropriate transaction 2.
but if the business certifies their records.when content is at issue 1. Certified public records 1. Rationale i. in possession of 3rd party d. NOT Apply when Original is unavailable b/c of a.Rule 1002 a. Prevent human recollection of a writing in place of the writing itself c. has been destroyed c. then you don’t have to have the custodian of the records come in (this will depend on how close the business is to the litigation) but this is still open to challenge vi. similar argument since the other side can just go to the same office and ask for the records and if they get something different. Use Oral Testimony about Contents of document 2. Reliability Protection 1. Notarized 2. Writing – Recording – Photo ii. serious misconduct by proponent b. Produce Original Document i. UNLESS NO Original Available 1. Π called W to prove by transcripts or W in court 83 .7 i. To prove Content of . then they know the first was a forgery Certain Public Records V.3. Problem 10. cannot be conveniently obtained b. Best Evidence .