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Waltz text

VIEWS: 11 PAGES: 67

									INDEX



EVIDENCE


0              25              51              75               95      100
         reasonable juror   preponderance     clear and    beyond a
                               of evidence   convincing   reasonable doubt



Steps in admissibility analysis:
1. Is the evidence relevant?
         -probative value? [i.e., what is the quantum of suspicion?]
         -material?
         -104 a/b issues:
                -what is the preliminary question of fact?
                -who should answer that question and why?

2. Is it hearsay? An out-of-court statement used to prove the truth of the matter asserted
therein.
         -i.e., what is the truth of the statement?
         -is the statement going to be used (directly/inferentially) for that truth?
                  -if yes, then hearsay
                  -if no, then likely let in for its inferential value

3. If hearsay, does it fit an exception?
        -yes  it comes in [if evidence not relevant, stays out even if meets an exception]
        -no  it does not come in

4. For all rules, prepare a paragraph that discuss the process/requirements for getting the
evidence admitted under the rule


Terms that seemed to be emphasized in class:
       -proffer: when evidence excluded, record what you would have said had the
       evidence been admitted
       -motion in limine
       -Rule 403 prejudice is of two types:
               1) exaggeration
               2) disregarding


Non-FRE jurisdictions: Texas, Pennsylvania,




                                                                                              1
WALTZ TEXT & LECTURE
Making the Record

Steps in trial: Making the Record; Offering Evidence; Objections to Evidence; Offer of
Proof; Instructions to the Jury; Verdicts; Polling the Jury

Stipulation: a voluntary agreement entered into between counsel for the parties to a
litigation respecting some matter that is before the trial court. They can relate to
procedure or evidence.

Evidence: oral testimony (direct examination; cross examination) and tangible exhibits

Leading questions: a question that suggests its own answer. Objectionable except in
certain circumstances:
               1. permitted on preliminary matters that do not go to the heart of the case
               2. permitted with respect to undisputed matters where the question is used
               as a connective
               3. may be asked of a hostile witness
               4. permitted when a witness gives surprise answers
               5. permitted with children or mental incompetents
               6. to refresh a witness' recollection
               7. hypothetical questions as put to expert witnesses
               8. on cross-examination

Expert: FRE 702: an expert is a person qualified "by knowledge, skill, experience,
training, or education."
        Hypothetical questions to experts: must conclude as to whether the witness has
        an opinion, based upon a reasonable degree of certainty, regarding the assumed
        facts.

       FRE 703 – expert may base opinion on facts made known to him at or before the
       hearing (e.g., review a medical history)

       FRE 705 – expert need not detail the facts behind his opinion, unless required to
       do so by the trial judge

Must Lay a Foundation for all evidence presented
      -only business records hearsay exception requires a foundation:

Direct examination: many rules and restrictions
Cross examination: only main restriction is that cross-questions be relevant; leading
questions are normally permitted during cross; impeachment has some restrictions

Tangible evidence: 1) real evidence (e.g., the actual murder weapon); it can be direct or
circumstantial and 2) demonstrative evidence (visual aid, chart, diagram, etc.)
       Real evidence: six steps for making the record:



                                                                                            2
            1. marking for identification
            2. laying the necessary foundation
            3. offering the exhibit into evidence
            4. securing an express ruling on the record
            5. a precautionary measure
            6. showing or reading the exhibit to the jury
       Demonstrative Evidence: two basic types:
            1. selected: e.g., handwriting exemplars
            2. prepared or reproduced: a model or diagram

Authenticating a writing:
      1. admission under FRCP 36
      2. direct evidence proving its genuineness
      3. proving the genuineness with circumstantial evidence
      4. reliance on rules, common law, statute that render some writings self-
      authenticating or that set up presumptions of authenticity

Judicial notice
        a form of evidence, substituting for more elaborate proof of facts that are 1)
subject to common knowledge among reasonably informed persons in the jurisdiction or
2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be disputed.

Trial Objections

Objections to Evidence
       Testimony
       -must be made in a timely manner or the objection is waived
       -however, if it becomes clear only after cross-exam or a lawyer fails to connect
       conditionally relevant evidence, previous testimony may be objected to and
       stricken

       Exhibits
              real evidence: objections made at time the exhibit is formally offered into
              evidence (i.e., after counsel has attempt to lay foundation for the evidence)

       Specificity
              any objection must be accompanied by a relatively specific statement of
              the grounds for it

       Obtain a Ruling
              objector must obtain an express ruling on his objection (essential for
              appellate review)

Offer of Proof: FRE 103 [pp.50-51]
       1. while examining a witness



                                                                                          3
                   i) permits trial court to make a fully informed ruling on an objection
             or    ii) preserves POV for post-trial review

           it is normally reversible error to refuse counsel an opportunity to make a proper
           offer of proof
           2. Three ways to make offer of proof while orally examining a witness:
                    i. tangible offer: include the denied evidence in the record; the submitted
                    evidence must be specific (e.g., not a pack of papers, but the objected to
                    sheet of paper)
                    ii. witness offer: proceed with examination for the record, but outside of
                    the hearing of the jury; counsel should also state the purport (synopsized
                    meaning) and the purpose (relevance, function) of the anticipated response
                    iii. lawyer offer: counsel states in the record why an answer should have
                    been permitted and why it was relevant and admissible1

           3. offer of proof with no witness on stand
                   -often made when a counsel suspects that a judge will not permit a line of
                   questioning to a series of witnesses. in effect, it pre-tests the witnesses
                   outside of the hearing of the jury
                   -the offer must be specific and made in good faith
                   -offers of proof in complex cases are normally required to be in writing

Instructions to the Jury
        Make a record of instructions given and refused
        Objections to instructions as read in court must be made immediately or they are
        waived

Verdicts
       general vs. special

Polling the Jury


Relevance (FRE 401)
FRE 401 – relevance
      1. probative
      2. material

FRE 401 def: relevant evidence is having "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence"

Evidence is relevant if a reasonable juror could believe [i.e., they could believe it or
disbelieve it, but belief IS possible] the evidence and thus give it probative value


1
    The key question of evidence law is ADMISSIBILITY of things in court.


                                                                                                 4
Relevancy is not an inherent characteristic of an item, but a relation between an item of
evidence and a proposition sought to be proved or disproved.

Evidence is irrelevant either because it is not probative of the proposition to which it is
directed or the proposition is not provable in the case.

What is relevant was not originally determined by law or rules, but rather by logic and
general experience (i.e., common sense).

Relevance

FRE: statue vs. common law
FRE 402
      Did away with CL; all relevant evidence admissible unless rules day otherwise.
      policy: Is the adoption of statutory rules better than CL decisional law in
      determining relevant evidence?


Unfair prejudice:      1. exaggeration: evidence exaggerates the probative value (i.e., if
                       evidence is worth conviction rate of 10%, but gives 25%); the
                       probative value must be substantially outweighed by the danger of
                       unfair prejudice

                       2. disregard issues: the evidence will cause the jury to disregard
                       the issue (e.g., grizzly photos of dead bodies in cases)

when all else has failed (i.e., 401 and 402), then argue 403


Relevance and Inference

An item relevant to proving a proposition may alone not prove anything, except by
inference. However, when combined with other singular items, it may create an
inference that the point has been proved (of course, there can never be 100% certainty).

Relevance vs. Sufficiency
      -relevant: a single item or group of items may or may not be admitted
      -sufficiency: do all of the admitted items create enough info to permit the issue to
      go to the jury

Knapp v. State
      -physician's testimony is held relevant even though not a direct rebuttal of
      previous testimony (and central issue of the previous testimony), but logically
      connected (even if a remote connection) to the elucidation of the inquiry




                                                                                              5
Sherrod v. Berry
       -facts may be excluded if the issue before the court is what a D could have known
       "at the time" and "under the circumstances" (in this case, fact that a gun never
       found on a suspect killed by police should be excluded because officer could not
       have known with certainty that suspect unarmed when he shot)

Probative Value versus Prejudicial Effect

see FRE 403: evidence may be excluded when "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."
        NB: probative value of evidence may also be affected by the scarcity or
        abundance of other evidence on the same point

       FRE 403 balancing test can be done in two ways:
             1. view the evidence independently of all other evidence
             2. view the evidence in light of full evidentiary context of the case

       FRE 403 probative value "may be calculated by comparing evidentiary
       alternatives"

       FRE 403: def "unfair prejudice": an undue tendency to suggest a decision on an
       improper basis, commonly, though not necessarily, an emotional one.


doctrine of limited admission: if a piece of evidence will help your case on numerous
                              points, you must find one point for which it is deemed
                              relevant. Then, the evidence will come in for all points,
                              even if for other purposes the evidence is impermissible

doctrine of conditional relevance:    -evidence is admitted on condition that the evidence
                                      is connected up to a proposition at a later period
                                      -relevance not readily apparent at the moment of
                                      offering
                                      -opponent of the evidence has the burden to ask
                                      judge to strike evidence if it is not connected up


CHAPTER III: HEARSAY RULE (FRE 801)
PART A – Rationale and Meaning: Definitions

"Park, Two Definitions of Hearsay"
1. assertion-centered: an out-of-court statement is hearsay when it is offered in evidence
to prove the truth of the matter asserted




                                                                                             6
2. declarant-centered: an out-of-court statement is hearsay when it depends for value
upon the credibility of the declarant

        usually, the definition does not matter in most hearsay situations.

Hearsay, FRE 801-807
      Hearsay: an out-of-court statement offered in evidence to prove the truth of the
      matter asserted therein (801(c)).
             -that is, the evidence is deemed so unreliable that it lacks probative value
             -evidence is or isn't hearsay depending on why the statement is relevant
             -a statement that can be used inferentially to prove something other than
             what is stated is likely not going to be hearsay

Why do we prohibit hearsay?
      Lawyers want the witness/declarant to testify at trial:
             1. under oath
             2. where jury can see him (demeanor evidence)
             3. where cross-examination is possible

Problems with hearsay evidence are the same issues that a good lawyer tries to bring out
in a cross:    1. ambiguity
               2. insincerity
               3. faulty perception
               4. erroneous memory
In other words, if testimony requires us to assume about these four issues, then it is
certainly hearsay. (see testimony triangle)


Ries Biologicals, Inc. v. Bank of Santa Fe
Hearsay objection denied because the relevance of the statements did not depend on the
credibility of the out-of-court declarant, but rather on the witness testifying that he heard
such a statement uttered by the declarant (in other words, it is a question of legally
operative language.
        "Strahorn, Reconsideration of Hearsay Rule and Admissions"
                 when the making of an utterance is the matter asserted, then deeming the
                 testimony hearsay is highly unlikely; "utterance as operative conduct";
                 legally operative conduct; res gestae; verbal part of an act
                         examples: when I give you something and say at the same time,
                         "this is a gift," the statement is admissible to prove that it was said
                         and someone hearing it would believe it was a gift; if at a wedding
                         the bride and groom say "I do," then the statement not hearsay to
                         show that anyone witnessing the ceremony would believe they are
                         married
                                  i.e., the statement was made publically and "the statement
                                  creates the relationship"




                                                                                               7
US v. Zenni
Are implied assertions hearsay?
       e.g., Utterances (attempted betmakings) are not offered to prove the existence of a
bookmaking operation, but that declarants' believed that there was a bookmaking
operation.
       e.g., if a sea captain inspects a boat and then sails on it with his family, does this
imply an assertion that the boat is seaworthy?

Reasons to exclude implied assertions from the hearsay rule:
        1. when a person acts in a way consistent with his beliefs but without intending
the act to communicate a belief, the rationale of excluding declarations whose veracity
cannot be tested by cross does not apply because the declarant's sincerity is not involved
        2. the underlying belief is often self-verifying: the actor has based his actions on
the correctness of his belief

801(a) takes care of the problem by expressly exempting implied assertions from the
hearsay rule while express assertions remain subject to it:
       "A statement is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him as an assertion."

               -non-assertive conduct, therefore, is NOT hearsay
               -"non-assertive verbal conduct" (e.g., Zenni and bet-placing calls)
                      in other words, declarant's good faith belief that drove them to
                      make the non-assertive statement provides an inference to prove
                      some matter


PART B – Exceptions and Exemptions (FRE 803 and 804)

"If a statement is hearsay, but it fits an exception, it can be used for its TRUTH" (its truth
depends on the particular relevance of the evidence).

NB: the evidence let in under 803 is the best because under 804, the evidence admitted
under 804 is so bad that the declarant must be unavailable in order for the evidence to be
admitted; whereas under 803, the declarant is immaterial to the admissibility of the
evidence.

Exceptions come up when one of the legs of our triangle is no longer a concern.

1. Dying Declarations (FRE 804(b)(2)): the left leg is gone: allegedly we no longer
have a concern with insincerity

Soles v. State
A dying declaration is only such when the declaration is made by the deceased "with a
consciousness of impending death." [evidence can only be used in homicide or in civil



                                                                                               8
actions] This is a determination for the judge to make. If the judge deems this true, then
he will admit the evidence. The weight to be given the evidence is the task of the jury.

[therefore, it appears that dying declarations are about an issue in which the admissibility
of a piece of evidence turns on the resolution of a question of fact]

"Kaplan, Of Mabrus and Zorgs"
Preliminary questions of fact: (FRE 104)
       1. whether a proffered piece of evidence is admissible? (judge)
       2. when evidence to resolve an issue of fact is such that a reasonable person may
       decide either way (jury)



Hypotheticals in book

2. Spontaneous and Contemporaneous Exclamations
Present Sense Impression: FRE 803(1)
       i. no memory problem
       ii. no time for calculated fabrication
       iii. statement usually made to an equally percipient witness
       iv. a narrower exception: "statement must describe or explain"
       v. must be entered in evidence in present tense
       vi. some problems:
                 a. spontaneous exclamations are not really true because often spoken using
                 coded language (e.g., "look at those crazy kids" does not mean that they
                 are insane, but that they were driving in a reckless manner)

Excited Utterance: FRE 803(2)
       i. a statement relating to startling event or condition; and
       ii. made while under stress of excitement caused by the event or condition
       iii. this is a much broader exception than 803(1) because the statement only has to
       relate to the event rather than describe (implying contemporaneity) it
       iv. considered more trustworthy than 803(1) because the shock/excitement implies
       that one can't fabricate the way one could with deliberation

Criteria for admissibility;
        i. startling enough to cause shock
        ii. made under stress of that emotion
        iii. immediate (there may be some time interval; but it is to the discretion of the
        court to determine if the utterance was indeed spontaneous)

Shock needed because it allegedly stills the reflective faculties and removes their control,
rendering any such utterance truthful.
         Experiments show that immediacy is a good rpedictor of truth, but emotional
stress tends to distort the memory and perception greatly.



                                                                                              9
Truck Insurance Exchange v. Michling (non FRE jurisdiction)
Wigmore's requirements for admission of excited utterances:
       a. startling occurrence [the act must be proved] producing nervous excitement,
       rendering the utterance spontaneous and unreflecting
       b. utterance must be made before there has been time to contrive and misrepresent
       (though it need not be strictly contemporaneous with the occurrence)
       c. utterance must relate to the circumstances of the occurrence preceding it

In this case, the proof that Michling suffered a head injury comes from the challenged
evidence itself; there is no corroborating evidence that the occurrence giving rise to the
excited utterance ever occurred! Bootstrapping not allowed in non-FRE jurisdiction and
therefore, the statement requires evidence aliunde (i.e., extrinsic corroborating evidence)
to prove the event or condition leading to the statement occurred.

Lira v. Albert Einstein Medical Center (non-FRE decision)
Utterance of a doctor ("who butchered your throat?") cannot be considered an excited
utterance because he would lack the necessary "emotional shock," being used to seeing
people's damaged throats. Nor was his utterance instinctive, but rather it was an opinion,
resulting from his years of medical training.
        NB: cross-examination required when admitting any expert opinion
-Under FRE, the evidence may or may not come in.
        1) it comes in because FRE permits deliberation when making a present sense
        impression utterance; or
        2) it stays out because the statement does not describe what it being seen, but
        rather offers an opinion about it

State v. Jones
The person making the excited utterance must be shown to be speaking from personal
knowledge (though the actual identity of the declarant need not be established). The
requirement of personal knowledge can sometimes be established merely by the contents
of the statement; other times there will be a necessity for extrinsic evidence.
        NB: for testimony to be a present sense impression, it must be uttered in present
        tense and must, therefore, be entered into evidence in the present tense [803(1)]

Hypotheticals

3. Admissions (FRE 801(d)(2))
      -this sort of evidence is considered so bad, that it is not among the exceptions, but
      rather is considered an exemption, for the reasoning that:
              1. a party can't really deny a statement on the grounds that they are
              generally untrustworthy; and
              2. the party is always available to be cross-examined should they wish to
              dispute the statement

Standen prefers to call these party admissions. The two requirements are:



                                                                                         10
        1. statement [including acquiescence to the words of another] made by a party
        2. it is offered into evidence by a party opponent

Reed v. McCord
Plain admissions of facts and circumstances are admissible [had the admission just been
that the person admitted to having heard something, then it would be hearsay]. In a civil
action, the admissions by a party of any fact material to the issue are always competent
evidence against him, no matter the circumstances of the admission.
        policy: it is highly unlikely that a party will admit anything that is contrary to his
interest unless it is untrue

(FRE 801(d)(2)(B))
known as "adoptive admissions"; it is assumed that if it wasn't true, the party would have
said something or indicated to the contrary; lawyers' term to counter objection is "made
in the presence", which means that the statement was made in the presence of the party to
the party's detriment.

        NB: "adoptive admissions" and "notice" in tort case for negligence are the only
        two times when the identity person hearing/seeing a statement does not matter.

US v. Hoosier (FRE 801(d)(2)(B))
Permitting admissibility of evidence of an admission by a party-opponent requires that
the party has admitted to the truth of the evidence or has acquiesced to it. Silence can be
deemed acquiescence [aka, adoption of truth of the statement], when circumstances
warrant [however, silence after being arrested is not permitted to create an inference of
guilt].

State v. Carlson (FRE 801(d)(2)(B))
Is "intent to adopt" an admission a preliminary question of fact for the judge or a question
of conditional relevancy for the jury (i.e., 104(a) vs. 104(b))? This court holds that is is
for the judge to decide because:
        1. rules say judges should determine "admissibility of evidence"
        2. this is a question of competence of the evidence rather than relevance, and so it
        should be for the judge.
        3. shouldn't let jury consider the truthfulness of out-of-court statements unless the
        statements have sufficient guarantees of trustworthiness (a policy argument)
                 NB: the act that is alleged to be the adoption of the admission cannot be
                 ambiguous2 such that it permits an interpretation that an adoption was not
                 intended.
Reasons the jury should not decide this issue:
        1. the legal policy underlying the hearsay rule would be furthered incompletely, if
        at all


2
 That is, does a head shake mean: 1) No; 2) disgust; or 3) resignation. If 2 or 3, then the statement would
be an admission. If 1, then the statement is hearsay and cannot come in by admissions exception [though in
certain circumstances, it might be admitted under a different exception].


                                                                                                        11
Hypotheticals

Mahlandt v. Wild Canid Survival & Research Center, Inc. (FRE 801(d)(2)(C, D))
This is a case about the admissibility of a statement by a party's agent (D)3; in this case,
an employee of Wild Canid acting within the scope of employment. Admissions need
not be based on personal knowledge of facts but rather it is opinion testimony that the
recited facts are true. Thus, statements made by the agent are admissible. Also, minutes
of a corporate meeting are admissible under (C) because officers of a corp are permitted
to speak for the corporation [however, as Mr. Poos was not present at the meeting, the
minutes are not permitted to be used in evidence against him.]

Hypotheticals

Big Mack Trucking Co v. Dickerson
An agent's [i.e., vicarious liability suit] hearsay statements should be received against his
principal/master as vicarious admissions only when the trial judge finds, as a preliminary
fact, that the statements were authorized.
         NB: DO NOT confuse the admissions exception with the spontaneous utterance
         exception.

Sabel v. Mead Johnson & Co. (FRE 801(d)(2)(C, D))
Admissibility under these two provisions is not governed by the trustworthiness of the
statement, but by the existence and scope of the principal-agent relationship. The party
seeking to introduce the admissions thus has the burden of demonstrating that this
relationship existed.
        policy: 801(d)(2)(D) expanded traditional admissions exemption of 801(d)(2)(C)
to include statements made by agents on matters within the scope of their agency, on the
theory that an agent authorized to act on a pincipal's behalf is impliedly authorized to
speak on the same matters.

US v. DiDomenico (FRE 801(d)(2)(E))
admission is permitted of "a statement by a coconspirator of a party during the course and
in furtherance of the conspiracy."
JS - policy: this exemption is really bad, but it is "simply necessary" to prosecute
conspiracy

US v. Goldberg (FRE 801(d)(2)(E))
rule is applicable even to a conspirator who joins the conspiracy AFTER the statements
used against him as admissions have been made!

US v. Doerr (FRE 801(d)(2)(E))
This rule requires that the statement admitted be "in furtherance of" the conspiracy,
meaning that the statement is "part of the information flow between conspirators intended


3
 801(d)(2)(D) is considered controversial by some because it means that anyone – even when not
authorized to speak for a principal – can make an admission binding on a company


                                                                                                 12
to help each perform his role." In other words, it can't be mere idle chatter or narrative
that may reveal the conspiracy, but not attempt to further it.
        policy: when people are talking about how to further the conspiracy, it is as
though they are talking business; we have a presumption that people are more serious
when they talk business and therefore, we let such info in.
        [NB- this is common in evidence law: look at the circumstances in which the
declarant made his statement]

Bourjaily v. US (FRE 801(d)(2)(E)) – a US Supreme Court decision
before admission under this rule, there must be evidence that
        1. there was a conspiracy involving the declarant and the nonoffering party; and
        2. that the statement was made in furtherance of the conspiracy.
This raises a preliminary question of fact for the judge (104(a)) and must be decided by
the preponderance of the evidence. The question each time is: have the technical
requirements of the FRE been satisfied to permit admission?
        also held that bootstrapping is permitted under 104(a) and can be used in
determining the admissibility of statements under FRE 801(d)(2)(E).
        Therefore, extrinsic evidence not required to prove there was a conspiracy, but it
must be proved (even if only by bootstrapping) before the evidence may be admitted (see
final sentence of FRE 801(d)(2).
DISSENT
        argues that because the express FRE rationale for the coconspirator exemption
was the agency rule, the CL precedent should inform decisions about admissibility; in
this case, statements made by an agent normally not admitted unless other evidence
shows that making such a statement was within the authority of the agent. Therefore,
need independent proof of conspiracy before admitting statements.
        Clearly, then the rationales between 104(a) and 801(d)(2)(E) are in conflict.


4. Former Testimony (FRE 804(b)(1))4
804(b)(1): meets the requirements of oath and cross, but not demeanor evidence

FRE 804(b)(1) requirements:
      1. Witness must be unavailable;
      2. Witness has given testimony at a prior hearing of the same or different
      proceeding OR in a deposition in the course of the same or another proceeding;
      3. Testimony must be offered against a party who
              a) either himself had an opportunity [therefore, cross not required] or
              similar motive to develop the testimony by direct, cross, or redirect
              examination; or
              b) such opportunity and similar motive was had by a predecessor in
              interest.


4
 Note the differences with FRE 801(d)(1). Prior testimony is not considered hearsay if the witness is the
declarant and the witness testifies at trial. The statement is therefore admissible for its truth when the
declarant is available.


                                                                                                         13
This rule is troubling because the lawyer of the predecessor binds the interests of the
lawyer of the second party.

Argument that X was not Y's predecessor in interest and/or had a dissimilar motive: I
would have developed my cross in a different manner, so X can't be my predecessor.

Travelers Fire Insurance Co. v. Wright
Former testimony from a previous trial or proceeding (e.g., deposition) can be introduced
in a subsequent trial when:
        1. there is an inability to obtain the testimony of the witness (i.e., witness
        unavailable);
        2. the must have been an opportunity to cross-examine the witness in the former
        trial;
        3. there must be an identity or substantial identity of issues; and
        4. there must be an identity or substantial identity of parties.

Note – Issue preclusion (collateral estoppel)
       -judgment from a prior conviction may be admissible (FRE 803(22))
               -if the issue has been precluded from relitigation, then evidence on the
               precluded issue is not admissible
               -issue preclusion does not apply when the issue was not actually litigated
               in the first action (e.g., plea bargain)
               -mutuality no longer always a bar to a stranger to litigation using issue
               preclusion against a party to the prior litigation

Note – Concept of "Predecessor in Interest" in FRE 804(b)(1)
       -a party against whom testimony was offered in a previous action and who has
       similar interests in a second action and a similar motive to cross-examine in the
       second action

US v. Salerno (FRE 804(b)(1))
Does this hearsay exception permit introduction of the testimony of a witness in a grand
jury hearing at a trial wherein the witness has taken the Fifth Amendment?
       No. The testimony fails to meet the "similar motive" segment of FRE 804(b)(1)

Prosecution's argument: I had different motives at the grand jury than at trial; therefore, I
should not be stick with the testimony from the grand jury.
       -At grand jury: only seeking indictment, have the need to maintain secrecy and
       not reveal all evidence, don't have all the information I need to ask the best
       questions, and the grand jury is basically a discovery tool
       -At trial: motive is to establish guilt beyond a reasonable doubt

Hypotheticals

5. Declarations Against Interest (FRE 804(b)(3))
1. At the time of its making, statement was:



                                                                                           14
         either so far contrary to the declarant's pecuniary or proprietary interest; 5
         or so far tended to subject declarant to civil or criminal liability;
         or to render invalid a claim by the declarant against another;
2. that a reasonable person in the declarant's position would not have made the statement
unless believing it to be true.

[3. Statements tending to expose the declarant to criminal liability6 –e.g. confession – and
offered to exculpate the accused are not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.]
        Part 3 is a remnant of the Donnelly rule which only permitted non-criminal
        confessions/declarations to be admitted. This was done because of fear that the
        guilty would go free when another party confessed. Thus, FRE requires
        corroboration in order to prevent false confessions.

GM McKelevy v. General Casualty pre-FRE
confessions against interest are admissible if 4 criteria are met:
       1. witness is unavailable
       2. declarant had peculiar means of knowing the facts
       3. statement was against his pecuniary or proprietary interest
       4. had no probably motive to falsify the facts stated

US v. Barrett (FRE 804(b)(3))
the requirement that statements against interest tending to exculpate the accused could
only be used with corroborating evidence of their trustworthiness. This decision was to
be made by the judge using "a proper standard and degree of discretion."
        In other words, there is a two stage analysis:
                1. were the remarks a statement against interest?
                2. is there sufficient corroboration of their trustworthiness?

Williamson v. US (FRE 804(b)(3))
US Supreme Court holds that FRE 804(b)(3) does not allow the admissibility of non-self-
inculpatory (i.e., statements that incriminate the non-declarant) even when made within
the broader narrative that is generally self-inculpatory.
       Self-inculpatoriness of a statement can only be determined by viewing the
statement in context. In other words, was the statement sufficiently against the
declarant's penal interest given the circumstances under which he made it.


Don't confuse Admissions with Declarations Against Interest!!
               Admissions                         Declarations Against Interest
need not be against interest when made      only admissible if at the time it was made it
                                            was against interest and subjects declarant

5
  NB: a confession or a declaration can be made IN the declarant's interest even when it seems to be
against interest, and therefore would not be admissible under this exception: e.g., "If you confess to the
crimes, we'll give you a reduced sentence" (even if person did not do the crimes, he might confess to them).
6
  that is, self-inculpatory, not non-self-inculpatory


                                                                                                         15
                                                to liability such that no reasonable person
                                                would have uttered it unless true
exception usable even when declarant is         declarant must be unavailable
available
admissible only when offered by a party         may be offered by any party
opponent



6. State of Mind (FRE 803(3))
NB: if declarant tells us his state of mind, then it is hearsay and must come in under this
exception; if we use a declarant's statement merely to infer his state of mind, then it is not
hearsay and can come in so long as used for non-hearsay purpose.

Text of the Rule:
        "A statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, bodily
health), but not including a statement of memory or belief to prove the fact remembered
or believed unless it relates to the execution, revocation, identification, or terms of
declarant's will."
        This exception removes the right-leg of our triangle: no memory or perception
problems.

Evidence is not hearsay when it is used for state of mind rather than for the truth of the
matter. For example, "Joe's gonna kill me" goes to show the declarant was afraid of Joe.
However, "I'm afraid of Joe" would be hearsay to show this same fear without the
exception.

Adkins v. Brett
Although a statement is hearsay, if the feelings/mental state of a person expressed in that
statement is material to the issues under trial, then these statements are admissible under
an exception to the hearsay rule. Furthermore, even if the statements contain statements
of fact that are relevant to the trial but are hearsay, this does not exclude the evidence
from the trial. (Generally, if evidence is competent under one rule, it can come in even if
it would be hearsay under another rule).
         Look at the testimony in question. It could all have been admitted to permit
inference of state of mind, except for the last phrase where Mrs. Adkins says "you are
distasteful to me." That could only come in under FRE 803(3).
         Moreover, the only way to guard against the misuse of the evidence is to instruct
the jury to disregard the evidence's hearsay purpose (codified in the "limited
admissibility" rule, FRE 105, which also states that evidence that cannot come in due to
one problem, can be admitted under another exception even though it would have been
excluded for a different reason: moral? – get the evidence in).

Hypotheticals




                                                                                           16
Mutual Life Insurance v. Hillmon
Hillmon doctrine: A declarant's stated intention may be used to show that the declarant
actually did what he said he intended to do. Whenever an intention is itself a distinct and
material fact in a chain of circumstances, it may be proved by contemporaneous oral or
written declarations of the party. That is, the state of mind of the declarant is used
inferentially to prove other matters in the case. E.g., a declarant's intention to perform an
act can be used as evidence of the performance of that act.
        NB: intention really only worth 1/2 of what memory is, but the law has made a
policy decision to let such evidence in.

Shepard v. US
You cannot use declarations and feelings as proof of a future (or past) act committed by
someone else. That is, statements declarations and feelings cannot be used to prove a fact
remembered or believed [except as to a will].

Hypotheticals

US v. Pheaster
The Hillmon doctrine is incorporated into FRE 803(3), but limited in applicability only
to future acts of the declarant, not the future acts of another person.

Hypothetical

Zippo Manufacturing v. Rogers Imports
Are surveys hearsay? Some cases say NO because they are not offered to prove the truth
of the replies of those surveyed. Other cases say YES, but they fit the state of mind,
attitude, or belief exception.
        If a statement is hearsay, we must then ask two things: 1) is there a need for the
statement at trial? and 2) is there a circumstantial guaranty of trustworthiness surrounding
the making of the statement [#2 is a fundamental principle of evidence law: is there an
indicia of reliability or trustworthiness7 that will allow us to admit the evidence even if it
doesn't meet an exception (does this apply under FRE?)]
        The survey discussed in this case:
                 1. Not Hearsay: because it did not speak to the truth of whether something
                 was a Zippo, just a general belief about it
                 2. Hearsay: however, it meets 803(3)
                 3. Hearsay: but let it in because the scientific survey process offers an
                 indicia of trustworthiness

Hypotheticals

7. Medical Diagnosis or Treatment (FRE 803(4))


7
  NB: corroborating evidence is NOT an indicia of trustworthiness; i.e., it will not change the quality of a
piece of evidence, though corroboration can add some other piece of information to an overall decision that
the jury/judge must make (i.e., guilt or innocence; liable or not)


                                                                                                         17
Text of Rule:
        "Statements8 made for purposes of medical diagnosis9 or treatment and describing
medical history, or past10 or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment" are admissible under the exception because when they are made,
the patient has a "strong motivation to be truthful."
        NB: split of authority on whether the identity of a person who caused the injury
        (e.g., parent who hits a child) is admissible as reasonably pertinent to diagnosis or
        treatment.

These are not spontaneous declarations, but assumed accurate because patient needs to be
truthful to get proper medical treatment. Statements under this rule can be made to any
healthcare professional, even to family members (as long as made for the purpose of
getting treatment – "mom, it hurts") who are assisting in care-giving.

Test for admission under this rule:
        1. declarant's motive must be consistant with purposes of obtaining medical
        treatment and
        2. content of statement must be such as is reasonably relied upon by physicisans
        in providing medical treatment or diagnosis

8. Prior Identification (FRE 801(d)(1)(C))

Text of Rule:
       "The declarant testifies11 at the trial or hearing and is subject to cross-examination
       concerning the statement and the statement is . . . one of identification of a person
       made after perceiving12 the person."

US v. Owens
So long as there was an opportunity to cross-examine, the Confrontation Clause of the
Sixth Amend has been met. (If the cross fails to achieve the purpose the lawyer had
hoped for, such as acquittal of his client, that is too bad.)

Hypotheticals

9. Past Recollection Recorded (FRE 803(5))
   Present Recollection Refreshed (FRE 612)

Text of FRE 803(5):



8
  could be a statement made by a parent to a doctor describing what is happening with a child
9
  i.e., permits testimony of expert witnesses, not just a treating physician
10
   Therefore, admissible even though a statement of memory
11
   the ID statement of declarant can come in by another witness so long as the declarant is put on the stand
to be crossed about that statement
12
   there is no time limit as to when the statement needs to be made


                                                                                                          18
        "A memorandum or record concerning a matter about which a witness13 once had
knowledge but now has insufficient recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness when the matter was
fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself be received as an
exhibit14 unless offered by an adverse party."
        To parse:      1. record was made or adopted by the witness when the matter was
                       fresh
                       2. witness knew record was accurate when it was made

Text of FRE 612:
        "Except as otherwise provided in criminal proceedings by section 3500 of title 18,
United States Code, if a witness uses a writing [can be work product or privileged info] to
refresh memory for the purpose of testifying, either--

     (1) while testifying, or
     (2) before testifying, if the court in its discretion determines it is necessary in the
     interests of justice,

an adverse15 party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce in evidence those portions which
relate to the testimony of the witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony the court shall examine the writing in
camera, excise any portions not so related, and order delivery of the remainder to the
party entitled thereto. Any portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal. If a writing is not produced or
delivered pursuant to order under this rule, the court shall make any order justice
requires, except that in criminal cases when the prosecution elects not to comply, the
order shall be one striking the testimony or, if the court in its discretion determines that
the interests of justice so require, declaring a mistrial."

THREE types of ways a witness can remember:
     1. normal remembering
     2. Present recollection refreshed (FRE 612)
             -lawyer enters an item for identification and then shows it to the witness.
             "does this refresh your memory?"
     3. Past recollection recorded (FRE 803(5))
             -do you remember making the writing?
             -was the writing to the best of your knowledge correct?
             -was it made simultaneous/close to the event?


13
   only formal exception that requires declarant to be a witness
14
   as the document is acting as a substitute for live testimony, it should be treated as such and the jury
should not be allowed to take it back to the room unless the opposing side wants to permit it
15
   adverse party may want to show that the witness was merely reading the document; that he could never
have refreshed his memory from the papers shown to him; or that there were inconsistencies in his
testimony


                                                                                                         19
Baker v. State: present recollection refreshed
a "record of past recollection" is different from a "past recollection recorded." The first
must be a record prepared by the witness himself or have been read and agreed to by the
witness, while the second may be prepared by anyone and not read at the time by the
witness.
        Finally, there is also the Present Recollection Revived (what we deal with in this
case), which is the difference between evidence and non-evidence. That is, the
record/memorandum, will only serve as a stimulus to memory and will not be admitted in
evidence, and so the standard of permitting its use is not very rigorous. The key is that
the witness must swear that his memory is refreshed and he may not read from the report
in the guise of refreshment.
        What can be used to revive a recollection? ANYTHING.

Adams v. NY Central RR: past recollection recorded
The written notes seem to have met all of the criteria under FRE 803(5).




10. Business and Public Records (various rules, listed in order)
FRE 805 – Hearsay within hearsay
Text of Rule
        "Hearsay included within hearsay is not excluded under the hearsay rule if each
part of the combined statements conforms with an exception to the hearsay rule provided
in these rules."

Johnson v. Lutz [know this case by name]
What is the Johnson v. Lutz problem?
        "a person speaking in the report lacks the business duty"
Admiting documents made in the regular course of business should apply to the business
world only, not police reports which are reports based on voluntary hearsay made by
parties not engaged in business.

FRE 803(6) – Records of Regularly Conducted Activity
Text of Rule
        " A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge16, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that business activity to
make the memorandum, report, record or data compilation, all as shown by the testimony
of the custodian or other qualified witness, or by certification that complies with Rule
902(11), Rule 902(12), or a statute permitting certification, unless the source of
information17 or the method or circumstances of preparation indicate lack of

16
     The Johnson v. Lutz gloss.
17
     Johnson v. Lutz and then discussed in US v. Vigneau


                                                                                         20
trustworthiness. The term "business" as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit."
         -no requirement that witness who lays the foundation for the records be the author
         of those records or be able to attest personally to their accuracy
         -the business in custody of the records need not have created them
         -business records are, in a sense, a compilation of numerous hearsay statements,
         so how is it that we let them in?
policy: the very regularity and continuity of the records acts as a guarantee of their
accuracy

Foundational elements for admission of records under FRE 803(6):
       1. record must be made in the course of regular business activity
       2. made by a person with knowledge
These elements are typically lain by the custodian of the records [the man in the grey
suit].

US v. Vigneau
Statements in business records "made by one who is not a part of the business" cannot be
admitted under FRE 803(6) if the statements are offered for their truth (if the outsider
statement is offered not for its truth but for some other purpose, then it may be
admissible). In this case, Vigneau's name on a form can't be proof that he filled the form
out because he placed his name there himself and his identity was never verified. Some
courts will admit outsider statements in business records if the identity is verified by
credit card or driver's license.

Hypotheticals

FRE 901: requires records to be authenticated
FRE 602: requires personal knowledge

US v. Duncan
Discusses how to lay the foundation for admission of business records
Records within records are permitted

FRE 803(7) – Absence of Entry in Records Kept in Accordance with 803(6)
Text of Rule
       " Evidence that a matter is not included in the memoranda reports, records, or data
compilations, in any form, kept in accordance with the provisions of paragraph (6), to
prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record, or data compilation was regularly made and
preserved, unless the sources of information or other circumstances indicate lack of
trustworthiness."




                                                                                         21
Williams v. Alexander
the business of a hospital is curing ailments; therefore any statement about the cause of
an injury is only germane to diagnosis and treatment to a limited extent. In this case, the
court holds that saying "I was hit by an automobile" would be admissibile, but not "I was
hit by a car when this person did x and that person did y and then a chain of causation and
then I was hit."
        I.e., a party admission [801(d)(2)] can only be admitted in a business record if
what was admitted was germane to the functioning of the business. For example, a police
report can include much more hearsay related to a car accident than a doctor's report
since doctors are only supposed to care about the basic cause of the injury, not who was
liable for the event.
        DISSENT: P had admitted part of the record and thus vouched for its accuracy,
and so D merely wanted the entire record in. Even if the statements P wants out are
deemed hearsay, by 805 and 801(d)(2) [party admission] it could come in.
        see p. 266 for how to get this info in {as discussed in class}

Hahnemann University Hospital v. Dudnik
records made by computers, not human beings, are considered reliable, as they are
ubiquitous. The foundation required for admission is:
       1. the witness can show the computer record is what the proponet claims
       2. the witness is sufficiently familiar with the record system used
       3. witness can establisht hat it was the regular practice of that business to make
       the record
The burden is on the opponent of the evidence to show that the computer is unreliable

Potamkin Cadillac v. BRI coverage corp
can't simply download info, create a printout, and call that a record regularly generated
during the course of business

A Palmer v. Hoffman problem means that a report was prepared in anticipation of
litigation.

Palmer v. Hoffman  know by name
Palmer wants to get in the statement by the train engineer that was made two days after
the accident, claiming the statement was made in the regular course of business.
        US Supreme Court says that the accident report cannot come in as it was not
normal in the course of business to file such reports. It is rather an unusual occurance
that the accident happened. A record regularly made by a business in response to a
certain event is not the same as a record routinely kept in the daily course of business.
        [in other words, the only records that can be used in this hearsay exception are
those that are made with frequent periodicity; after all the policy basis for the rule is that
records that were routine reflections of the day to day operations of a business created a
probability of trustworthiness]




                                                                                            22
Lewis v. Baker
here, an accident report is admitted. The court says that the difference from Palmer is
that the report in Palmer was prepared by someone who likely knew that he would be
involved in litigation; in Lewis, the report was prepared by employees who had no reason
to think that they would be sued. Therefore, their memorandum/report is deemed
trustworthy [seems a bit specious to me].

NB: FRE 803(6) permits a party preparing a business record to offer it into evidence; no
requirement that it be offered by adverse party.

Yates v Bair Transport
doctors' reports were prepared with the knowledge that they would be used in litigation.
Thus, under Palmer v. Hoffman, they may be untrustworthy. However, in two of the
reports, the court finds an added criterion of trustworthiness. In this case, the adverse
party sought to introduce the reports of doctors from the other party. The fact that the
insurance company doctors were speaking against interest, the court says, is enough for
trustworthiness. However, the court excludes the reports made by doctors who were
favorable to plaintiff's side.
        Here is a losing argument, but one that you should make [for EXAM]: the reports
        made by the doctors paid by Yates should come in as the doctors are not wedded
        to their employers the way the insurance company doctors are. Their professional
        standards require them to be objective and trustworthy.

FRE 803(8) – Public Records and Reports
Text of Rule:
       "Records, reports, statements, or data compilations, in any form, of public offices
or agencies, setting forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and proceedings and against the
Government in criminal cases, factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness."

       803(8)(A): activities of agency records can be used in all civil and criminal cases
       803(8)(B): duty to report [e.g., weather records, trial transcripts, etc]
       803(8)(C): investigative findings (can be administrative findings)

       Neither 803(8)(B) or (C) can be offered in evidence in a criminal trial because the
       policy is that a defendant in a criminal trial has a right to confront his accuser [this
       logic carries over to 803(6)]

       Johnson v. Lutz does not apply to 803(8)

FRE 803(8) is much broader than the exception for business records in FRE 803(6)for the
following reasons:



                                                                                            23
        1. may contain statements of persons not employed by the gov't (i.e., there is no
        Johnson v. Lutz problem)
        2. no req for regularity of recordation
        3. no need for sponsoring witness (i.e., no custodian of records needed)

Beech Aircraft Corp v. Rainey FRE 803(8)
Discussion of history and policy of FRE 803(8).
HELD: factually based conclusions or opinions made by the preparer of the report from
disputed evidence are included in the scope of FRE 803(8)(C).
       Four factors for trustworthiness:
               1. timeliness of the investigation
               2. skill or experience of the investigator
               3. whether a formal hearing was held
               4. bias of the investigator

US v. Oates Numerous Rules discussed; compares 803(6) with 803(8)
Because intent of 803(8) was to exclude police and evaluative reports from evidence
against criminal defendants, 803(6) must be interpreted in light of this intent. therefore,
police and evaluative reports cannot meet the exception under 803(6).

        Standen: Argues that the logic of Oates is bad because FRE 803(6) records are so
        much better that they should come in even in a criminal trial because: [EXAM]
               1. must be made by a person with knowledge, unlike 803(8)
               2. must have regularity of recordation, unlike 803(8)
               3. must be made at or near the time of the event, unlike 803(8)
               4. must have a sponsoring witness, unlike 803(8)

Hypothetical
      ways of getting the parking ticket in:
             1) past recollection recorded – but fails
             2) business record? – Oates problem
             3) present sense impression? – Oates problem
                     a) on a policy level Oates applies to all 803 and 804 (dicta p. 288)
                     b) on a strict level, Oates only applies to 803(6 and 8)18
             4) public record 803(8)(A)

US v. Grady FRE 803(8)(A)
However, if the police records were records kept in regular course [i.e., non-
adversarial/routine] of police work (e.g., recording serial numbers of seized guns) and not
in specific instance of investigating the specific people on trial, then the record may be
admitted.

18
  For example, some cases hold that Oates doesn't apply to Past Recollection Recorded and Pres Sense
Impression because they are of better quality than 803(8):
        i. PRR – better because declarant is there and therefore cross and confrontation permitted
        ii. Present Sense – better because it is made immediately upon occurance of an event (i.e., a
        guarantee of trustworthiness)


                                                                                                        24
Hypotheticals
1. argue a Palmer v. Hoffman problem with store manager compiling report with an eye
toward litigation and protectin his job

2. meets 803(6), though Johnson v. Lutz argument that guest's statement was outside the
business duty

3. overruled, meets 803(8) if captain works for government; fails on 803(6) Johnson v.
Lutz from speaking with the neighbors

4. report comes in under 803(6), the prognosis probably comes in under 803(6) if it was
in the regular course of doctor's business to make prognoses. [NB: always argue
untrustworthiness when confronting 803(6)]

5. Trick: need custodian of the records to lay proper foundation for 803(6)

6. 803(6)

7. A's statement is hearsay (offered for truth of the license #; it must be true in order to be
probative. Exception for 803(8)(C) fails because it is not a factual finding [because if it
were, C permits a defendant to use the evidence against a criminal prosecutor, but not
vice-versa]

11. Miscellaneous Exceptions

FRE 803(22) – Judgment of Previous Conviction (NB: this rule addresses only the
hearsay problem with a prior conviction, not the rule 403 issue)
Text of Rule:
        "Evidence of a final judgment, entered after a trial or upon a plea of guilty (but
not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by
death or imprisonment in excess of one year, to prove any fact essential to sustain the
judgment, but not including, when offered by the Government in a criminal prosecution
for purposes other than impeachment, judgments against persons other than the accused.
The pendency of an appeal may be shown but does not affect admissibility."

Stroud v. Cook
-FRE 803(22) permits introduction of judgment for a felony conviction, but not a
misdemeanor.
-Some courts, however, say that a misdemeanor conviction is admissible under public
records exception 803(8)(A) as a record of logging misdemeanor convictions.
-However, expressio unius, exclusio alterius seems to indicate that if the makers of the
FRE wanted to have an exception for misdemeanors, then they would have.
-But, by FRE 302, a diversity court must apply the substantive law of the forum state.

Learned Treatises Exception



                                                                                            25
FRE 803(18) – Learned Treatises
Text of Rule
        "To the extent called to the attention of an expert witness upon cross-examination
or relied upon by the expert witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject of history, medicine, or other
science or art, established as a reliable authority by the testimony or admission of the
witness or by other expert testimony or by judicial notice. If admitted, the statements may
be read into evidence but may not be received as exhibits."
        in effect, this rule permits an expert to testify for free

FRE 807 – Residual Exception
Text of Rule
         " A statement not specifically covered19 by Rule 803 or 804 but having
equivalent20 circumstantial guarantees of trustworthiness, is not excluded by the hearsay
rule, if the court determines that (A) the statement is offered as evidence of a material
fact; (B) the statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the adverse party21
sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant."
         Important components of FRE 807:
                 1. evidence has "equivalent circumstantial guarantees of trustworthiness"22
                 2. it goes to a material fact
                 3. is more probative of that fact than other evidence that can be reasonably
                 found
                 4. interests of justice and the policy of FRE will be served

PART C – Future of Hearsay
Some possible answers to hearsay:
      1. allow all written hearsay into court (English rule) – note that people don't take
      the time to write something down if they don't agree with it
               a) in civil trials, English let in all hearsay
      2. let judge decide

Turbyfill v. International Harvester
Challeneged evidence: handwritten, unsworn statement of a mechanic who witnesses the
car accident but later died. Admitted by trial court under FRE 807. Appellate Court
agrees. Statement was also consistent with 803(5), past recollection recorded, for if


19
   therefore, permitting near-misses in would override this language
20
   Standen: equivalent to what? trustworthiness varies by rule, etc
21
   notice requirement
22
   trustworthiness: to examine the circumstances surrounding the making of the statement (e.g., p. 306)


                                                                                                          26
mechanic had not died and was present to testify, the evidence would have come in under
that rule.
Failing attempts to get this evidence in (from class):
        1. Pres sense imp – written to far after the event
        2. business record – not ordinary course of business and Palmer v. Hoffman issue
        3. admission – not offered by party opponent
        4. recollection recorded – declarant must be a witness; here, he is dead
        5. declaration vs. interest – no guarantee of trustworthiness
        6. excited utterance – was he still under stress from event – maybe?

US v. Dent23
Trial court admitted grand jury testimony under FRE 807. Grand jury testimony cannot
come in under former testimony exception (804(b)(1)) because defendants in a criminal
trial are not represented before the grand jury and therefore lack the opportunity to
develop witnesses' testimony by direct or cross examination.
         Conflict among the circuits whether it can come in at all. Must also evaluate
grand jury testimony under Sixth Amend confrontation clause.24
         Appellate court holds admission of the testimony was in error.

Emerging Problems under FRE
-FRE 807 however requires notice to the other party in advance of the trial that this
exception will be used to get the evidence in.
-near-miss theory should keep evidence out because exceptions have limits and should
not be overridden just because some evidence was close (see concurrence in Dent)
        -Standen says the really good applications of 807 are with evidence that is
        excluded under Pres Sense Impression as not soon enough after event but are
        admitted because it meets all criteria of 807.

Hypotheticals:
2. Statement vs Interest, but fails: 1) there was no showing of unavailability and 2)
probably not so far contrary to declarant's pecuniary/proprietary interest or subjecting her
to criminal or civil liability
        Come in under 807?
                 Trustworthiness:
                          i. wouldn't normally tell husband such things
                          ii. statement made while memory was relatively fresh
                          iii. the event of losing money was a memorable one for declarant
        It fails under 807 because:
                 i. there is evidence more probative of what happened in the poker game
                 because a player at the game was a witness
        Should still come in under 807 because:


23
   the most common use for FRE 807 is by prosecution to get in grand jury testimony since this testimony
could not come in under previous exceptions
24
   Keep 6th Amend in mind for EXAM and use policy argument for keeping evidence out in the favor of
criminals.


                                                                                                      27
                  i. declarant's statement is best possible evidence for impeachment of prior
                  witness

Confrontation Clause:
-external limit on otherwise admissible, relevant evidence
-only limits hearsay in criminal cases (only criminal D may assert)
-Confrontation Clause can never be raised against non-hearsay because it means the
witness is testifying in court

-exist 2 plausible readings of the clause:
        1) it excludes ALL hearsay in criminal trials; or
        2) has nothing to do with hearsay because clause addresses "witnesses" and not
        "declarants"

Confrontation Clause Main Issue: [KNOW THIS TABLE AND THE ORDER]
At a criminal trial, when using prior testimony against criminal defendant, the
prosecution must show:
        1. necessity: either a) show declarant was unavailable25
                       or      b) produce the declarant

         2. indicia of     either a) firmly rooted hearsay exception26
            reliability    or     b) particularized guarantees of trustworthiness

         EXCEPTION: Crawford v. Washington:27 when a testimonial statement is at
         issue [in this case, statements made during police interrogation], the only
         indicium of reliability sufficient to satisfy constitutional demands is confrontation
         (either in court or when statement made if declarant under oath)
                  -so, a hearsay statement may come in if:
                          1) D had "prior opportunity" to question the witness before the
                          testimonial statement is entered into evidence; and
                          2) the witness is unavailable
                  -Ohio v. Roberts still applies to all other hearsay statements; i.e., non-
                  testimonial hearsay statements

Information from cases below, through Idaho v. Wright:
      1. Inandi: unavailability requirement does not apply for co-conspirators' hearsay
      statements; therefore, Roberts only applies to prior testimony
      2. Bourjaily: indicia of reliability test not required for admission of co-
      conspirators' statements because the exception is firmly rooted within a hearsay
      exeption

25
   Standen: "this seems like a dangerous precdent and appears to exclude all 803 exceptions unless we can
prove the decalrant is unavailable – i.e., it would turn 803 into 804!
26
   [EXAM] for this analysis, if the exception is firmly rooted, then it is deemed trustworthy, so no need to
look at particularized guarantees. Therefore, good to know which exceptions the court deems firmly rooted
and which it does not.
27
   cf: Thomas' opinion in White


                                                                                                         28
       3. Wright: any statement let in under residual exception (807) must show
       particularized guarantees of trustworthiness. This is done by looking at the
       statement itself and the context in which it was made and not any evidence
       aliunde.
(Standen says: so, the Supreme Court has just reiterated its own FRE but in the guise of
making them constitutional)

Ohio v. Roberts
Issue: whether a witness' preliminary hearing testimony may be introduced against a
defendant in a criminal trial when that witness is not produced for trial.
          Testimony: called and questioned by defense counsel but never crossed by
          prosecution because testimony actually favored prosecution.28
At trial, D took stand and countered the testimony given at preliminary hearing.
Prosecution then introduced the written transcript of testimony to rebut D's testimony. D
objects to use of testimony as violation of confrontation clause. Trial court admitted the
transcript.
Confrontation Clause operates in two ways to restrict the range of admissible hearsay:
          1. established a rule of necessity: prosecution must either produce or demonstrate
          the unavailability of the declarant whose statement is to be introduced against the
          defendant
          2. ensure trustworthiness: since the policy of the clause is to permit a defendant
          to test the reliability of evidence used against him, any hearsay admitted must
          meet guarantees of trustworthiness (aka, the indicia of reliability requirement)
To sum, Confrontation Clause to be met by hearsay admission requires:
          1. witness is unavailable
          2. there are indicia of reliability for his statement that is admitted
According to Inadi, the holding in Roberts only applies to situations when prosecution
seeks to admit testimony from a prior judicial proceeding in place of live testimony at
trial (i.e., 804(b)(1)).

Lilly, an introduction to the Law of Evidence
Confrontation Clause issues:
        1. never been literally read to exclude hearsay from criminal trials
        2. does place limits upon the freedom of prosecution to deny opportunity to cross
                 -clause limits when a declarant can be considered unavailable for hearsay
                 purposes
Confrontation Clause issues should also depend on considerations of trustworthiness and
adversarial fairness.
        -if there is a strong reason to distrust the evidence, then the preference for live
        testimony should be compelling




28
  NB: a counter to the Roberts holding is that in Salerno, the court had said that the motivation for a
prosecutor at grand jury was different than at trial, so can't the defense lawyer say that his motivation at the
preliminary hearing was not the same one he would have had at trial?


                                                                                                             29
US v. Inadi FRE 801(d)(2)(E)
Issue: whether the Government must show that a non-testifying co-conspirator is
unavailable to testify as a condition for admission of that co-conspirator's out of court
statements.
       Roberts does not apply here or to all hearsay exceptions, but only to the prior
testimony exception (804(b)(1)).
HELD: the unavailability rule related to Confrontation Clause is not applicable ot co-
conspirators' out of court statements. Why?
       1. former testimony is a replacement for live testimony [cf Roberts];
        but statements made by co-conspirators are made in the course of the
        conspiracy [i.e., context lends credibility to the hearsay] and cannot be replaced
       with anything even if declarant testifies in
        court
       2. co-conspirator has not incentive to testify truthfully at trial of another
       conspirator, and so statements made earlier are more useful
       3. policy: requiring a showing of unavailability each time 801(d)(2)(E) was
       invoked would unduly burden the prosecution

Bourjaily v. US
HELD: indicia of reliability not required for admission of co-conspirators' out of court
statements under 801(d)(2)(E). [i.e., coupled with Inadi, US Supreme Court says neither
of the Roberts reqs needed for admissions under this rule]
        -more broadly: no independent inquiry into reliability is required when the
        evidence "falls within a firmly rooted hearsay exception" because that category of
        statements is traditionally deemed trustworthy enough that adversarial testing can
        be expected to add little to its reliability.

Idaho v. Wright
Issue: whether the admission at trial of certain hearsay statements made by a child
declarant to an examining pediatrician violates defendant's rights under Confrontation
Clause.
        These statements were admitted at trial under rule similar to FRE 807.
Court follows Roberts here and says unavailability was satisfied by stipulation. As to
indicia of reliability:
        -this req can be met in one of two ways:
                1. falls within a firmly rooted hearsay exception (fails here because 807 is
                an innovation)
                2. a showing of particularized guarantees of trustworthiness
                         -must examine totality of the circumstances surrounding the
                         making of the statement and that render the declarant worthy of
                         belief29
                         -this indicia of reliability must be internal to the statement itself
                         and the context in which statement was made, not by reference to

29
   In other words, "if the declarant's truthfulness is so clear from the surrounding circumstances that the test
of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the
statement at trial."


                                                                                                             30
                           other evidence at trial (i.e., evidence aliunde)30 (e.g., if statement
                           made under duress, it may be true, but no indicia of reliability and
                           should be excluded)

STANDEN: "as a lawyer, whenever you have someone trying to get evidence in under
FRE 807 against a criminal defendant, you should always make a Confrontation Clause
objection. Conversly, if you know the only hearsay exception evidence fits is 807, then
you should try and get the evidence classed as non-hearsay because no Confrontation
Clause objection can be made against non-hearsay" This is so because offering party
MUST show a particularized guarantee of trustworthiness! In many courts, this is very
difficult.

White v. Illinois
HELD: confrontation clause does not require the showing of necessity for the
"spontaneous declaration" and "medical examination" exceptions [i.e., lets protect 803
some more]
        -prosecution makes these sorts of appeals so that the US Supreme Court will tell
        the world that the State does not have to carry the burden of making keeping track
        of all possible declarants and witnesses
policy: basic purpose of the Confrontation Clause is the "promotion of the integrity of
the factfinding process." the unavailability req is unlikely to produce much testimony
that "adds meaningfully to the trial's truth-determining process" [cf Inadi where similar
reasoning was stated about admitting co-conspirator statements which could not really be
added to by in-court recital]

CONCUR by THOMAS [Standen emphasized; use this on EXAM]: "Wigmore-Harlan"
view: suggestion that when evidence is presented in the form of witness testimony that
the testimony can be subject to cross-examination. Therefore, Confrontation Clause
should only apply to extrajudicial statements contained in formalized testimonial
materials (i.e., we can't let police create testimonial substitutes – affidavits, depositions,
prior testimony, confessions – and then use them in court)

Lilly v. Virginia
STANDEN: there is no real holding here; a confusing case [does this mean he'll give us
a no-win question like this on the final exam?]

[non-self-inculpatory statements prohibited in Williamson]
State Court admitted statements made by Lilly's brother to police. Court stated that they
were: 1) declarations of an unavailable witness against penal interest and 2) the
statements' reliability was established by other evidence.

US Supreme Court: a confession or statement to police is analogous to ex parte affidavit,
and so Confrontation Clause must be brought into this because it denies defendant chance
to confront witness in a judicially-related procedure??

30
  if this were permitted, it would allow a presumptively unreliable statement to gain reliability by
bootstrapping on the trustworthiness of other evidence at trial


                                                                                                       31
Supreme Court Inquires:
      1. is "statement against interest" a "firmly rooted" exception?
               -not really: category is too broad and statements are used in many
               different ways [pp. 347ff]
                       i. admission against declarant
                       ii. exculpatory evidence
                       iii. used by prosecution to establish guilt of an alleged accomplice
      HELD on #1: no, especially the 3rd category, most applicable here, is an
      innovation that is normally unreliable; "accomplice confessions that inculpate a
      criminal defendant are not within a firmly rooted exception to the hearsay rule"

       2. did confession to police have guarantees of trustworthiness?
               -not when they are like ex parte affidavit practice, i.e.:
                      i. government is involved in the statement's production
                      ii. statement describes past events
                      iii. statement has not been subjected to adversarial testing

       -Rehnquist, concurring, seems to say that the relevant inquiry is that custodial
       confessions are normally viewed with suspicion (issue #2), and that is all that the
       court should have held on – but since lower courts did not reach on the issue, the
       case should simply be remanded for trial on that issue
               -the plurality's blanket ban on govt's use of accomplice statements that
               incriminate a defendant sweeps beyond the facts of this case and of
               precedent

Chambers v. Mississippi
Here is what is required for criminal defendants:
        1. reasonable notice of the charge
        2. opportunity to be heard in his defense
                -includes right to cross-examine witnesses
                -offer testimony
                -have a lawyer
FACTS: 1) testimony of witness originally called for defense not allowed to be crossed;
based on Miss CL rule that prohibits "impeaching your own witness" because by calling
him, a party, in effect, vouches for the witness' credibility; 2) witnesses to third-party
confessions were not permitted to testify as to what they heard.

Admitting 3rd-party declaration against interest; statements must have indicia of
reliability. These have four:
         1. confessions were made spontaneously to a close acquaintance
         2. corroborated by some other evidence (huh? Wright)
         3. each confession was self-incriminatory and unquestionably against interest
         4. Confessor was also a witness, so he could have been crossed and the jury seen
         his demeanor




                                                                                         32
HOLDING: under the facts and circumstances of this case, the rulings of the trial court
deprived Chambers of a fair trial. We establish no new principles of Constitutional law.

Green v. Georgia
testimony that was excluded correctly as hearsay can still be required to be admitted
under the 14th Amend Due Process clause if the statement is deemed to have indicia of
reliability.
HELD: this statement was reliable and should have come in under 14th Amend:
         -reliable because:
                 1. spontaneous statement made to a close friend
                 2. corroborating evidence of confession
                 3. statement was against interest
                 4. no reason to suspect ulterior motive
                 5. same testimony had been used in another proceeding to convict and
                 sentence a person to death
"The hearsay rule may not be applied mechanically to defeat the ends of justice."



Chapter IV: A RETURN TO RELEVANCE

Part A: Probabilistic Evidence

People v. Collins
Issue: whether evidence of mathematical probability has been properly introduced and
used by the prosecution in a criminal case.
HELD: the fact that it is almost impossible for anyone else to fit a description does not
mean that this is a substitute for proper identification
       -the mathematical testimony introduced two fundamental, prejudicial errors:
                1. lacked adequate foundation in both evidence [i.e., math professor has
                no idea how many blonde women or blacks live in LA] and statistical
                theory [each variable must be independent so that a phenomenon does not
                get measured twice – e.g., blonde women and women with pony tails are
                not entirely mutually exclusive]
                2. distracted jury from its proper and requisite function of weighing the
                evidence on the issue of guilt

Standen: "all evidence is a question of odds to the jury, so why does it matter that the
prosecutor asked the jurors to assume odds? everyone knows that is what they do.

Bayes' Theorem –      i.e., what should jury do with a final "frequentist" number such as
                      1:12,000,000?
-provides a way of determining how an evaluation of probability based upon initial
evidence should be modified in light of additional evidence




                                                                                           33
-that is, Bayes' Theorem takes the odds, then assumes that the relationship of the
defendant to the odds is non-random and then converts it to a number the jury can
understand (usually a percentage)

Nance, Naturalized Epistemology and the Critique of Evidence Theory
"random match probability" – the chance that, though innocent, the defendant would, by
mere coincidence, match a mark found at a crime scene
       -to determine this, must estimate the frequency of that mark in the appropriate
       suspect population

       e.g., a random match probability of 0.04 means that 1 in 25 people share the mark.
       Which is to say that it is 25 times more likely that defendant made the mark than
       some random person.

most courts, however, allow at least the expression of random match statistic as a
probability (0.04) or as a frequency (1 in 25, or 4%)

Lempert, The New Evidence Scholarship: Analyzing the Process of Proof
Bayesian approaches an best be used heuristically as guides to rational thought and not as
specific blueprints for forensic decision making.

Statistical evidence, similar to People v. Collins, is used in a minority of cases, but a
meaningful number (at least 4%).

Quaere: why is one form of evidence based on statistical probability – fingerprints or
DNA – admissible, but another form that is slightly less reliable not? Where can/should
we draw the line?

People v. Mountain
discusses the Robinson rule: there is no probabtive value to showing that a defendant has
type A blood and the sperm in a deceased was derived from type A blood in light of the
commonness of type A blood in the population.
        -this rule has been criticized and roundly rejected in several jurisdictions on the
ground that while not conclusion, such evidence does have some probative value. When
issue is identity, proof that assailant and defendant share that characteristic is probative of
identity.

Kammer v. Young
Appellant challenges the admission of blood test evidence on two grounds:
       1. experts were not qualified to perform and interpret the tests
       2. statistics used to evaluate the tests were "scientifically invalid"
       -court finds that the data and procedures were fine

Appellant then raises a Due Process violation arguing that "statistical probability" of
paternity deprived him of right to fair trial on two grounds:




                                                                                            34
           1. does due process permit paternity index to be converted to a statistical
           probability through use of Baynes' Theorem?
                   -Appellant argues that using a prior probability factor assumes a fact not in
                   evidence and is therefore scientifically invalid. HELD: it is allowed.
           2. can the limited reference population used to compute paternity index be used in
           this case? Rejected; reasoning edited out.

Odds trip up pair in NY Race bet case


Part B: Character and Habit

FRE 404 - Character Evidence Not Admissible To Prove Conduct; Exceptions;
Other Crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a particular
occasion, except:               Character                 In other words, 404(a) prevents
                                                                         moving from E to C to A.
                                                                         However, 1) character evidence
                                                                         used only to demonstrate character
                                                                         or 2) evidence that is less than
                                            Habit31                      charcter (a habit) may be used to
                                                                         show action
                  Evidence                                    Action

  (1) Character of accused. Evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same, or if evidence of a trait of character of
the alleged victim of the crime is offered by an accused and admitted under Rule 404
(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
  (2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged
victim of the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the alleged victim was the first
aggressor;
  (3) Character of witness. Evidence of the character of a witness, as provided in rules
607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial if the court excuses

31
     Habit: a series of repeated behaviors
           So, in terms of strategy: prosecution would argue that evidence is habit in order to get it in; while
           a defense lawyer would argue that it is a character trait and keep it out under 404(a)


                                                                                                              35
pretrial notice on good cause shown, of the general nature of any such evidence it intends
to introduce at trial.

FRE 405 - Methods of Proving Character
(a) Reputation or opinion. In all cases in which evidence of character or a trait of
character of a person is admissible, proof may be made by testimony as to reputation or
by testimony in the form of an opinion.32 On cross-examination, inquiry is allowable into
relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense, proof may also be made of
specific instances of that person's conduct.

Character: general considerations
Why should 404(a) keep so much evidence out?
      -FRE 403: character evidence is very prejudicial
      -judges do not want to try a case within a case
             -this means that if a character witness makes an accusation and ti is denied
             by D, then this creates a question of fact that was not the original reason
             for the litigation
                     -FRE 405(a): takes this policy into account when it only permits
                     opinion and reputation evidence, rather than evidence of specific
                     conduct

1, Character in Issue

Cleghorn v. NY River RR Co.
here, the question of whether the switchman had an intemperate character came in to
show something other than an action in conformity therewith. That is, it was used to
show notice to the employer in order to prove negligent hiring.

Other situations in which character evidence can be used [FRE 405(b)]:
       -child custody (character of each potential custodian is in issue)
       -notice to a party of some character of another party

Wellman, The Art of Cross-Examination
Evidence of character may also tend to show that someone suing for defamation of
character could not be defamed in any expensive manner because his character and
reputation was already in such disrepute.

FRE 405(b): character is an essential element only when it is an ultimate issue, and
therefore is not being used as evidence of anything else. That is, character is directly in
issue in the strict sense when "it is a material fact that under the substantive law
determines rights an liabilities of the parties" (430-431).
        when character is offered as circumstantial evidence to prove some other fact,
        then it is not an essential element
32
     in other words, no specific acts of conduct are admissible


                                                                                          36
2. Character as Circumstantial Evidence
Michelson v. US FRE 404(a)
Michelson convicted of bribing a federal revenue agent. He admits to giving the money,
but says he was entrapped by agent's demands and threats.
        JURY: who do you believe?
Michelson challenges the admission of a question about a prior conviction for receiving
stolen goods.
        -Evidence is admitted on grounds that it tests the character witness' knowledge of
        the person about whom he is giving testimony.
                [-question must be asked: have you heard? rather than did you know?
                because character witnesses are supposed to testify about reputation, not
                personal knowledge]
        -Michelson says that it prejudiced the jury who will now use the prior arrest to
        establish his guilt for this crime.
                -arrest may be inquired about because such a thing can affect reputation
                [court does not adopt Illinois Rule saying that arrest may be inquired only
                when arrest is for a similar charge to the current one]

CL tradition of character testimony:
       -disallow prosecution to prove guilt of D due to D's "evil character" because the
       evidence is seen as too persuasive to a jury (i.e., prejudicial)
               [-HOWEVER, when D calls a character witness, prosecution now allowed
               to attack D's character through cross-examination of those witnesses or
               calling its own witnesses
               -Prosecution also thus permitted to ask D's witnesses to give examples of
               events that led to their conclusions in order to test the sufficiency of his
               knowledge about the D and make sure witness not just a partisan]
       -defendant, however, is permitted to use character evidence to defend himself
               -moreover, a character witness is an interesting creature: "he testifies
               from hearsay alone" because he is testifying to the D's reputation, which is
               by definition, hearsay.
                       -the witness cannot testify about D's specific acts, conduct, mental
                       or moral traits; nor can he base his opinion on his own
                       observations of the D
       -character witnesses permitted to draw conclusions

       policy: such testimony is justified because of the overwhelming practical
       problems of establishing character by direct testimony

       APPEAL standard of review: courts give great deference to trial court's ruling on
       admissibility of this specie of evidence

FRE 404(a)
Once character evidence door is open by the defense, the prosecutor may;
      1. present his own character witnesses



                                                                                         37
           2. attack the credibility of D's character witnesses by attacking the character of
           D's witnesses
           3. question D's witnesses' sufficiency of knowledge about D's character by asking
           the witness about "specific acts of bad conduct" (see FRE 405(a))33

McCormick: Bad Character as Evidence of Criminal Conduct
evidence of prior criminal acts may not come in unless for a purpose other than to show
the accused is a person of criminal character
       permissible uses include:
               1. place crime on trial in context of nearby and nearly contemporaneous
               happenings
               2. prove existence of large plan/conspiracy of which the crime on trial was
               a part
               3. to prove the accused has an identical m.o.
               4. to show passion or propensity for unusual or abnormal sexual relations
               5. to show the act in question was not performed inadvertently or
               accidently
               6. to establish motive: motive may be probative of the identity of the
               criminal or of malice or specific intent
               7. to establish opportunity to commit the crime or possession of unusual
               skills or abilities to commit the crime
               8. to show D acted with malice, deliberation, or specific intent
               9. to prove identity (typically as related to one of the other eight
               exceptions)
       other issues affecting admissibility of prior crimes:
               1. other crimes evidence potentially admissible even if person acquitted of
               the charge
               2. connection between evidence and permissible purpose should be clear
               and the issue on which the prior crimes evidence bears should be the
               subject of genuine controversy
               3. even when evidence meets admissions criteria, still need to balance it
               against undue prejudice.
                        -issues to consider when determining if there will be undue
                        prejudice:
                                1. strength of evidence to prove commission of other crime
                                2. similarities between the crimes
                                3. interval elapsed between the crimes
                                4. need for the evidence
                                5. efficacy of alternative proof
                                6. degree to which evidence will cause jury to become
                                irrationally hostile to D

Hypotheticals for FRE 404(b) situations

33
     -only allowed on cross; prosecutor is bound by witnesses' reply; extrinsic evidence [i.e., evidence not
      from witnesses' mouth] is not allowed
     -prosecutor must have a reasonable basis that the bad conduct referred to actually occurred


                                                                                                               38
US v. Carrillo
-D found guilty of distributing heroin and cocaine based on an undercover officer's
testimony. D claimed mistaken identity.
-District court allowed evidence of two sales of drugs by D as m.o. evidence
-D challenges this admission under "identity exception" in FRE 404(b).
        HELD: the admitted acts do not bear a sufficient degree of similarity to the
        charged offense to mark it as handiwork [this special hallmark needed for
        admission under identity exception] of D, therefore, conviction is vacated and
        remand for new trial

Two-part test for prior crimes admissions under 404(b):
      1. extrinsic offense evidence must be relevant to an issue other than D's character
      2. must pass muster under FRE 403

           identity exception requires strict circumstances: must be used in conjunction with
           other basis for admissibility or strictly for m.o., and must not be merely similar to
           the charged crime, but show a high degree of similarity

US v. Beasley FRE 404(b) and 403
Beasley charged with obtaining narcotics, obtaining by misrepresentation, and
distributing.
        Prosecutor tried to show that Beasley had distributed drugs in the past in order to
help prove that he had done it this time [rather than rely exclusively on the testimony of a
convicted drug dealer against a successful academic]

Objection: Beasley wanted to exclude evidence that he had "shopped for doctors" and
that he had used three people as prostitutes. If evidence is not used to show one of the
things listed in 404(b)¸then it is being used to show propensity34 and is therefore
inadmissible.
        -Prosecution argued that any evidence showing that Beasley dealt in the kinds of
        drugs for which prescriptions were written was "pattern" evidence.
        -Judge allows this in as pattern evidence of events "close in time" to the charged
        crime, but during trial, judge told jury the evidence was for Beasley's intent

HOLDING: pattern evidence is not in list of 404(b) uses. What the evidence really is is
a "series of acts that collectively identify the offender."
        -when evidence is used for identity, the proximity of the acts in time is important.
        -this only becomes an issue if all the acts in question are sufficiently similar to the
        charged act(s)
        -must be clear and convincing
        -must meet 403 standard
                (i.e., cannot show the forbidden inference: someone who violates the law
                has a bad character and therefore violated the law that is charged)
        -must show something other than D's propensity to commit similar crimes
34
     def propensity: action in conformity with prior actions (i.e., character evidence)


                                                                                              39
Non-harmless error:
      "an error is not harmless if it results in actual prejudice because it had substantial
      and injurious effect or influence in determining the jury's verdict."


US v. Cunningham FRE 404(b) – "prior wrongful acts establishing motive"
Cunningham was a nurse who was convicted for tampering with Demorol-filled syringes.
       ISSUE: whether the trial judge abused his discretion in admitting evidence of
       prior "bad acts" of the defendant under FRE 404(b).

Propensity [evidence never admissible for propensity] vs. motive
      -these do not overlap when, e.g., an addict commits a robbery in order to pay for
      drugs
      -they do overlap when the crime is motivated by a taste for engaging in that crime
      or a compulsion to engage in it (an addiction), rather than by a desire for
      pecuniary gain or for some other advantage to which the crime is instrumental in
      the sense that it would not be committed if the advantage could be obtained as
      easily by a lawful route.

Here, Cunningham was not addicted to stealing Demerol, but to consuming it. In other
words, the addiction provided the motive to commit the crime and was thereby
admissible unless judge concluded it failed rule 403.

Bad acts may also be used to provide context for other evidence if that context is needed
to help the jury understand the evidence. [another exception to the general prohibition of
bad acts evidence]

Relevance analysis: 1) what is the preliminary question of fact?
                    2) Did the D do the bad act of which he is accused? If yes, the
                    question goes to the jury.

NB: just as party admission is the tried-and-true way of getting in hearsay; so "identity"
is the tried-and-true way of getting evidence in under 404(b)

Tucker v. State
[Standen says this is a bad decision in most jurisdictions: 1) many courts would let the
evidence in as signature evidence due to the high degree of similarity; 2) the "clear and
convincing" standard in the courts RULE will keep out a lot of relevant evidence that
would otherwise go to jury under a 104(b) rational basis standard]

Upon finding a second dead guy in his house, police arrest Tucker. He is convicted of
2nd degree murder.
HELD: trial court committed error by letting in evidence of the first dead guy (Kaylor).
Since there was no proof that Tucker had indeed killed Kaylor, the evidence cannot be




                                                                                            40
said to be of one of his prior acts. Therefore, no reason is sufficient to let it in. [could be
let in as character evidence if Tucker had opened the door]

           RULE: Before evidence of a collateral offense is admissible for any purpose, the
           prosecution must first establish by plain, clear and convincing evidence, that the
           defendant committed the offense

Huddleston v. US FRE 404(b)
HELD: district court need not make a finding that the Government has proved the "other
act" to be admitted under 404(b) by a preponderance of the evidence before it submits the
evidence to the jury.
        -"Such evidence should be admitted if there is sufficient evidence to support a
        finding by the jury that the defendant committed the similar act."
                -in other words, the relevance of a piece of evidence conditioned on
                believing a fact to be true are dealt with under 104(b)
                -404(b) requires a "rational basis" standard (i.e., 104(b) evidence)
        -text of 404(b) makes "no intimation that any preliminary showing is necessary
        before such evidence may be introduced for a proper purpose

Threshold test for admitting similar acts evidence:
      1. Is the evidence relevant [ie., probative of a material issue other than character]?
      [preponderance that the act occurred is not indicated by the text of the rule, the
      location of the rule (in section IV on relevance), or legislative intent]
      2. could a reasonable juror believe the evidence and thus give it probative
      value?35
               -proper phrasing: "if a jury finds that the D did not do the bad act, then it
               would naturally disregard the evidence. If it would not naturally
               disregard, then the question should go to the judge do to the overwhelming
               prejudice."

There is protection from unfair prejudice in similar acts evidence because:
       1. 404(b) requires that evidence be offered for a proper purpose
       2. relevancy requirement of 402 as enforced by 104(b)
       3. trial court assessment under 403 criteria
       4. availability of limiting instructions by 105

How character evidence may be used for its circumstantial value:
        proof of a violent character  D must be a violent person  allow me to draw
the inference that  D started the fight because this would be an act in conformity with
his character

Perrin v. Anderson FRE 404(a), 405, and 406
Dead man's estate brings §1983 action against cops. Challenge to the testimony of four
cops who claimed to have had violent encounters with the person two other cops shot.


35
     Standen emphasized this a lot in several classes


                                                                                             41
         Defendant cops introduced evidence of numerous prior acts by dead man in order
         to show that he was first aggressor in the fight leading to his death, thus
         substantiating the cops' self-defense claim.
                in other words, the cops were using character evidence in a circumstantial
                manner in order to draw the inference that the dead man acted on that
                occasion in question consistently with his character (404(a)(2))36
                         [this use of character evidence raises questions of relevancy as well
                         as questions of allowable methods of proof]

HOLDING #1: Normally, character evidence only admissible in criminal trials when
introduced by defense. However, when a civil claim involves an issue that is criminal in
nature, defendant may introduce character evidence pursuant to exceptions in 404(a).
[Standen: most courts would not hold this about civil trials.]

HOLDING #2: since character evidence can only be presented by reputation or opinion,
the district court erred by relying on rules 404(a) and 405 to justify the admission of
specific conduct to prove character.

HOLDING #3: the evidence was admitted properly, however, under 406 as habit that is
relevant to prove that the dead man's conduct on this occasion was in conformity with his
habit.
       def. habit: a regular practice of meeting a particular kind of situation with a
       certain type of conduct, or a reflex behavior in a specific set of circumstances

Standen: getting evidence in under 406 is probably wrong. The best way to get it in
would be under 404(b) to show motive that Perrin hated the cops.

Also, FRE 803(21) – Reputation as to Character
Text of Rule:
       "Reputation of a person's character among associates or in the community."

Park, Leonard & Goldberg, Evidence Law – FRE 406
-Evidence of habit is freely admissible in criminal and civil trials.
-The distinction between habit and character is a matter of degree:
Character                                      Habit
generalized description of one's disposition more specific; describes one's regular
or of one's disposition in respect to a        response to a repeated specific situation
general trait (e.g., honesty, temperance,         (i.e., the similarity itself is what creates
peacefulness)                                  the probative value; hence the requirement
                                               for similar circumstances)37
                                               habit also permits evidence of the routine
                                               practice of a corporation or other

36
   circumstantial use of character evidence rejected in most jurisidictions except that 1) an accused may
introduce evidence of his good character; 2) accused may introduce evidence of the victim's character –
normally in self-defense claim; 3) attacking credibility of a witness.
37
   compare with 415 discussion below


                                                                                                            42
                                             organization
                                             does not require corroboration by other
                                             evidence; it can itself be sufficient to prove
                                             the doing of an act (therefore, admissible
                                             even if no witness can say the habitual act
                                             occurred during the occasion in question)
                                             406 does not state a principle of exclusion
                                             forensic problems with 406:
                                             1. wrong-doers may consciously act
                                             contrary to their habits in order to avoid
                                             suspicion
                                             2. we don't always follow our habits every
                                             time (therefore, is a habit really an
                                             unthinking reaction, as suggested by some
                                             courts)
-various examples of things admitted under 406 given on p. 433

Halloran v. Virginia Chemicals Inc
habit admissible in civil action if witnesses can prove it was repeated enough times to
qualify as a habit

Hypotheticals (p. 438)
3. Here get evidence in by arguing that bad act was being used to show identity rather
than propensity; i.e., not being used to prove that X would do the same crime again, but
to show that he did it to A.

4. since the evidence here was being used for modus operandi in order to show
identity38, it should be kept out as irrelevant because identity was not an issue in this case
because D admitting to the killing, but claimed self-defense


Note on Rape Shield Legislation
Statutes vary, but tend to have at least one common feature: evidence of reputation and
sexual behavior is not admissible purely for purposes of showing unchaste character, as
the basis for a further inference that the complainant consented to sex on the occasion in
question.
        Prior sexual behavior usually admissible for 2 limited reasons:
                 1. prior sexual behavior with defendant
                 2. prior sexual behavior with other persons when offered to explain
                 physical consequences of the alleged rape
        Some jurisdictions allow evidence for a possible motive to fabricate the complaint
        or evidence to show behavior closely similar to the behavior on the occasion in
        question (e.g., accusation of rape to cover up infidelity or protect existing
        relationship)
38
  KNOW THIS: M.O. is almost always used for identity (e.g., you can't use evidence for m.o. when
person has admitted to crime but claims self-defense)


                                                                                                   43
       Some statutes include a procedural element, requiring in limine hearings on
       admissibility or permitting in camera hearings to protect the victim's privacy

Standen's comments:
FRE 412-415: these rules were written quickly and poorly in response to political
pressure [review marginal notes in book for examples – mainly problems with
definitional vagueness]
        In order to get to the rape shield, evidence must first be deemed relevant. That is,
        the rape shield is designed to keep out relevant evidence. So we must ask, do rape
        shield laws violate the Sixth Amendment of the Constitution? [NB – if evidence
        is deemed irrelevant, then it does not implicate the Sixth Amendment.]

State v. Cassidy – Rape shield laws held to FRE 104(a) standard
Trial court excluded (because no offer of proof that victim had made a prior false claim
of sexual assault) evidence about a sexual encounter between victim and another man that
had allegedly ended in a fit of screaming similar to what defendant claims happened,
rather than a rape. [evidence only probative of D's truth-telling, not if he raped her]
        D argues that the evidence should have been admitted to show a pattern of
conduct by victim. Rape shield statute limits/bars such evidence because of its highly
prejudicial nature.
        All appeals on rape shield laws must be analyzed on a case-by-case basis. Offer
of proof must be examined in reference to Sixth Amend (Confrontation Clause) and 14th
Amend (due process).
        Rebuttable presumption that the only conduct relevant to rape charge is the
conduct between the victim and defendant.

Olden v. Kentucky FRE 412
The story of a victim of an alleged rape keeps changing before trial and during cross.
Defendant claims consent. Victim was married and having an affair with Russell, so did
she make up the rape story to cover her other dalliance?
        Trial court keeps out the evidence that victim (matthews) and Russell we
cohabitating, even after victim lied on witness stand and said she was living with her
mother.
        Olden appeals on 6th Amendment grounds that by refusing to allow him to use
the excluded evidence to impeach victim, he was denied his confrontation rights. In other
words, the Constitution guts rape shield laws.

HELD: exclusion of evidence a violation of 6th Amend
[in other words, the 6th Amend is the way to get around Rape Shield blocks]

Interpretations of the Olden case:
        1. Defense lawyers: anytime there is an extant sexual relationship with someone
        other than rapist, evidence must come in as motive to fabricate
        2. Prosecution: evidence only comes in when victim makes first accusation of
        rape to a current significant other




                                                                                         44
US v. Platero – recent intimate relationship and its relevance to making a false accusation
of rape

Victim was out with a man she was having an affair with (Laughlin); she claims to have
been raped by a cop who pulled them over. Defense claims that the sex was consensual
and that the story was to protect her relationship with Laughlin.
        Defense tries to get the evidence of the affair in as motive to fabricate the rape
story.
        The only difference between facts here and in Olden is that there was uncertainty
as to the relationship between Laughlin and victim. Trial judge concluded – based on his
evaluation of the credibility of a witness – that there was no relationship at the time of
the assault.
        Appeal on 1) refusal to submit question of fact re: extramarital relationship to jury
and 2) 6th Amendment

HELD: because of removal of language in 412(c)(2), evidence conditioned on fact in
rape case must go to jury unless there is no rational basis for belief. In other words, the
PQF – "was there a relationship between Vernon and Susan at the time of the assault" – is
a 104(b) question.
       Chambers supports this holding – i.e., that a person is entitled to cross all
witnesses against him in open court [look over this case]
               [Query from Standen: so, do the in camera hearings required by rape
               shield laws cause the judge to make 104(a) rulings when the jury should
               be hearing the evidence and thus violate 6th Amendment]

Johnson v. Elk Lake School District FRE 415
PQF – was there improper touching, and if so, was it intentional?

HELD: evidence admitted under this rule need not be held to 104(a) standard of
preponderance that the prior act of sexual assault actually occurred, but may be sent to a
jury if it meets relevance standards and meets rational basis standard. BUT, evidence can
only be admitted if it meets the 403 standard that its probative value is not substantially
outweighed by danger of unfair prejudice or misleading the jury.

NB – rules 413-415 override the general prohibition of admitting character evidence in
order to show action in conformity therewith when the evidence involves sexual assault
and child molestation [413 & 414 are criminal trials; 415 is civil trial]

Steps for admitting evidence under FRE 415:
        1. offense must meet definition of sexual assault in 413(d) – includes both
        convictions and uncharged conduct [104(a) standard]
        2. evidence must pass muster under 403 [104(a) standard]
                -steps for performing 403 balancing test:
                        i. if past act is very similar to act being litigated, then it should
                        come in




                                                                                                45
                            ii. dissimilar acts or acts that cannot be demonstrated with
                            sufficient specificity should be subject to 403
                            Similar: therefore, the               Dissimilar: more prejudicial
                            information is more probative         than probative
                            than prejudicial

         3. if it passes muster, then because the evidence is only subjected to a rational
         basis standard, then in keeping with Huddleston, the court need not hold an in
         limine hearing but merely decide and present evidence to jury [104(b) standard]

Standen: judges automatically take questions of fact under FRE 413-415 because they
override the long-standing prohibition against admitting character evidence. Because
character evidence generally so prejudicial, judges like to perform the 403 balancing
prior to giving evidence to the jury.
        413-415 seem directly counter to 403 because they want to permit the forbidden
character inference that is one of the main purposes for the existence of 403.


Part C: Similar Happenings – TORTS only
PQF: does the proffered evidence contain events that are similar and did those events
happen? i.e., is the offered evidence relevant? This is a 104(a) question because if the
jury were to determine that the events were not similar they would not naturally disregard
the evidence and might convict on the basis of prior events. [cf. Carlson for reasons why
certain relevancy determinations are 104(a) questions]

Simon v. Kennbunkport – no FRE rule39
Plaintiff challenges the exclusion of evidence that people had stumbled and fallen at the
same sidewalk location where she fell and sustained injury.
        APPEAL: evidence of similar events may be relevant circumstantially in a
negligence action to show 1) defective or dangerous condition, 2) notice thereof, or 3)
causation vis-à-vis the occasion in question. Absence of such events may also be
probative.
        Because a negligence action is about the absence of due care under the
circumstances, evidence admitted for its circumstantial value is probative.

Steps for admission: 1) events occurred
                      2) events were similar (similarity breeds relevance)
NB: fight over admission of similar events creates a case-within-a-case

Hypothetical p. 467
        in order to get a series of non-events admitted [e.g., no one has ever slipped here
before], we can say that since the weather was undoubtedly similar at some point to the
day in which P fell, we may presume that during many of these non-events we had
similarity except for the fall.

39
  however, it is like 404(a) in reverse: similar events in effect permit character evidence; in this case,
showing the action of a sidewalk in conformity with prior actions of the sidewalk


                                                                                                             46
Part D: Subsequent Precautions
Tuer v. McDonald FRE 407
Text of Rule:
         "When, after an injury or harm allegedly caused by an event, measures 40 are taken
that, if taken previously, would have made the injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence, culpable
conduct, a defect in a product, a defect in a product's design, or a need for a warning or
instruction. This rule does not require the exclusion of evidence of subsequent measures
when offered for another purpose, such as proving ownership, control41, or feasibility of
precautionary measures, if controverted42, or impeachment." [Standen says that because
of last sentence, many subsequent measures come in.]

Main argument raised by this rule based on definition:43
What does the witness mean What does text of FRE 407                    Result
by "feasible"?                mean by feasible?
it was not practicable        it was impossible                         rule would not permit
                                                                        evidence to controvert
                                                                        because witness never said
                                                                        it was impossible
it was not practicable              it was not practicable              rule permits evidence to
                                                                        come in because it goes to
                                                                        the same issue


        policy for this exclusion:          1) subsequent conduct is not an admission, since the
                                            conduct is equally consistent with injury by mere
                                            accident or through contributory negligence
                                            2) social policy should encourage people to take, or
                                            at least not discourage them from taking, steps in
                                            furtherance of added safety

HELD: exclusion of evidence of change in drug administration protocol after a patient's
death is not admissible to prove negligence in that patient's death, pursuant to FRE 407.
Since the doctor and hospital made a judgment call about the proper procedure, it is
difficult to contradict with subsequent precaution evidence

P's arguments for inclusion: 1) feasibility and 2) impeachment
1. Feasibility – narrow view: only allow the evidence when D asserts that the alternative
                course was essentially impossible for him to undertake

40
   corrections or remedial measures
41
   over property/instrumentality
42
   i.e., if control, ownership, or feasibility has been denied by a witness
43
   EXAM:              lawyer: "Did you make an unsafe product?" answer: "no." Now, the fight emerges
under FRE 407 and whether the court will permit evidence in to "controvert" the testimony of witness.
Such as, safe according to whom or what protocol, etc.


                                                                                                        47
               broad view: including that which could have been utilized successfully

2. Impeachment – if evidence of remedial measure offered "for simple contradiction of a
defense witness' testimony," then it is not admissible as impeachment evidence and fear
that evidence could prejudice the jury. The allowance of the evidence depends more on
the nature of the contradiction rather than the fact of it.

Hypotheticals (p. 476)


Part E: Offers in Compromise
-inadmissible as proof of liability
       normally they have low probative value because many people will settle just to
       avoid nuisance of litigation [however, may have high probative value if settlement
       offer is almost same amount as damages sought]
-policy: by excluded settlement offers from being used against the offeror at trial, the rule
encourages settlement

Davidson v. Prince – FRE 408
Davidson challenges the admission of a letter written to Prince that said he was ten feet
from a steer when it charged him.
        Based on this letter, Prince theorized that Davidson had negligently attempted to
corner the steer when it injured him.
        Evidence presented at trial for various possible distances; i.e., conflicting
evidence.

HELD: as the statement was made in a letter informing Prince of his options, rather than
in a letter of settlement or offer to compromise claims, it is properly admitted.

NB: even if the letter was a settlement letter and therefore excluded under 408, courts
would permit the statement in for purposes of impeachment

Ando v. Woodberry – FRE 410 (would have excluded this evidence)
Should a plea of guilty to traffic violations be admissible as evidence of carelessness in a
civil action for damages?

Two possible reasons to exclude: 1) it is hearsay or 2) admission contrary to public
policy
       1. plea of guilty is an admission; therefore meets hearsay exception
       2. state law prohibits a traffic violation from being used to affect/impair the
       credibility of a witness
                i.e., prior conviction may not attack a witness unless it was a conviction
                for a crime

D's also argue that a plea of guilty to a traffic violation should be treated as nolo
contendere rather than guilty.



                                                                                             48
       Court says no way. Instead, D may explain why he plead guilty (i.e., I just
wanted to get it over with, but I really didn't violate the traffic law . . .) and then the jury
can give what weight it wants to the prior plea of guilty.

NB: p. 482 – Standen highlights: nolo contendere is not a statement against interest.
Nevertheless, it comes in under the hearsay exception of party admission [remember,
party admissions needed not be against interest at the time they are made]

FRE 410
      nolo pleas not useable
      guilty pleas normally treated like in Ando

Hypotheticals (p. 484)
These are very good hypos. Main issues: even when something meets a hearsay
exception, it must still be relevant before it can come in.
       1. note especially that there is an argument both for and against admission of the
       statement under 408. Understand it.


CHAPTER V: IMPEACHMENT & REHABILITATION; CROSS-EXAMINATION

Classic definition of impeachment (p. 475)
       "classic impeachment evidence serves the purpose to cast doubt on the credibility
       of the witness's testimony; it is not a mere pretext for using the evidence to
       establish culpability."

Some restrictions on examining witnesses
      I) side calling witness may not ask leading questions (i.e., questions that suggest
      their own answers)
               Exceptions: 1) may lead in preliminary matters
                               2) may lead when witness cannot testify without being led
                               (e.g., child, elderly)
               Notes:
                       -questions starting with who, what, where, etc, tend not to be
                       leading; "are, is" are mildly leading; "didn't you, weren't you"
                       questions tend to be leading
                       -leading questions tend to be feared because they may be too
                       suggestive [useless fear because all of the suggesting is done in
                       lawyer's office before testimony]
      II) side calling witness is bound by that witness' testimony (no attempts to correct
      statements made by witness)  abolished by FRE 607

        III) objections to the form of the question
                -question calls for a narrative (narrative is bad because no idea what will
                come out of witness' mouth and opposing attorney must have chance to
                object)



                                                                                               49
                  -compound (multi-part) questions prohibited
                  -question is confusing
                  -argumentative: means that lawyer is arguing his case to the jury by
                  asking a question loaded with bias ("so, when you negligently crashed into
                  my client, were you drunk?") – lawyer can raise voice, that is not
                  argumentative

Cross-examination: none of these restrictions apply
       -in fact, there are no rules except for impeachment

Four potential aims of cross-examination:
       1. discrediting witness' testimony
       2. using testimony of witness to discredit the unfavorable testimony of other
       witnesses
       3. using testimony of witness to corroborate favorable testimony of other
       witnesses
       4. using witness' testimony independently to contribute to the favorable
       development of your own case

Risks incurred in cross-examination:
        13 listed on p. 492

Impeachment                                            Contradiction
some characteristic or prior act of the                use of in-court testimony of other witnesses
witness destroys his credibility                       to contradict a witness about one of the
    -when a witness testifies, he always puts          matters at issue.
his character for truth-telling on the line [cf
FRE 404(a)(3)]
intrinsic – use witness' own words to
impeach; that is, try to get him to admit he
lied on cross-examination
extrinsic – evidence other than that which
comes out of the witness' (the witness you
seek to impeach) mouth
   -prohibition on extrinsic evidence is
another way of saying that the lawyer is
bound by the witness' answers
   -extrinsic prohibition is based on the
policy consideration that judges do not
want to waste time.44

        Method of Impeachment                                         Limitations?
Contradiction                                          Oswalt: if issue is collateral, then
                                                       impeachment can only be intrinsic; unless
44
   Standen: this is a key because occasionally extrinsic evidence that will not waste time may be permitted
in (see, for example, #3 and 4 on page 516)


                                                                                                         50
                                               evidence is otherwise relevant, then
                                               extrinsic impeachment permitted
Character:                                     no extrinsic evidence permitted
   a) by reputation – 608(a)
   b) by prior bad acts – 608(b)
   c) by convictions – 609
[psychiatric condition is "similar to"         [therefore, instrinsic or extrinsic evidence
character, but goes to mental incapacity,      permitted because 608 is not applicable]
bias]
prior inconsistent statement                   CL: had foundational requirements of
                                               notice and allowing explanation ("Rule of
                                               Queen Caroline's Case")
                                               FRE 613: no foundational requirement
bias                                           not yet covered



FRE 607 – Who May Impeach
        The credibility of a witness may be attacked by any party, including the party
calling the witness.

US v. Hogan FRE 607 [know Hogan Problem for EXAM]
HELD: a witness may not be called to testify for the express purpose that he will then be
impeached with otherwise inadmissible evidence.  aka The Hogan Problem
       [-this is a controversial opinion because it means that if a witness recounts his
       story, then the only way to impeach is with hearsay testimony; so how can
       prosecution show someone is a liar?]

FRE 607 permits a party calling a witness to impeach that witness; however, a statement
may not be used under the guise of impeachment to place "substantive evidence" before
the jury that would otherwise be inadmissible (NB: this tactic used as a subterfuge to
avoid hearsay rules – EXAM?)

In this case, if permitted such evidence would run the risk that the defendant would be
convicted on the basis of hearsay evidence that should bear only on a witness' credibility.


Standen: impeachment evidence need not be admissible to be used for impeachment
purposes; impeachment evidence not deemed to be substantive, therefore it is never
actually admitted into the case-in-chief (e.g., a judge deciding on a motion fro directed
verdict could not use the facts elicited by impeachment evidence to decide the motion)

*** Create a chart in which all mentions of evidence aliunde/ outside evidence/ extrinsic
evidence can find a home ***

METHODS OF IMPEACHMENT


                                                                                            51
1. Impeachment by Contradiction – that is, introducing contradictory evidence
       -this is normally always allowed because impeaching evidence is normally relvant
       to the case (i.e., you say light was red; he says it was green)

Generally, impeachment evidence can only be used to contradict specific testimony, and
so often a judge needs to offer a limiting instruction so that the jury is "prevented" from
using the evidence for an impermissible purpose.

State v. Oswalt (extrinsic impeachment)
RULE: a witness cannot be impeached upon matters collateral to the principal issues
being tried.
        Purpose of the rule: 1) avoidance of undue confusion of issues
                                2) prevention of unfair advantage over a witness
                                unprepared to answer concerning a collateral issue
                                unrelated or remote to the issues at hand
        CL Test on whether something is a collateral matter:
               could the fact at issue have been shown in evidence for any purpose
               independently of the contradiction?
                       -if no, then evidence excluded

Questions (p. 502)
Extrinsic evidence routinely permitted for impeachment when the purpose is to
show:
       1) mental incapacity
       2) defect in perception
       3) bias
       4) personal interest in a specific trial outcome

US v. Copelin (intrinsic impeachment)
HELD: evidence of a positive drug test properly admitted to impeach, but judge should
have given a limiting instruction to jury.
       [this held even though defense council never asked for such an instruction during
       trial]

prior drug tests cannot come in directly under the character prohibition [i.e., use drug
tests to show Copelin is a drugs-taking kind of guy] in FRE 404(a)

Evidence of positive drug tests (i.e., prior acts) admitted under 404(b) because it was
used as "an attempt to impeach through contradiction a defendant acting as a witness." A
reason not listed45 in 404(b), but legitimate nonetheless.

         -extrinsic evidence offered to impeach a witness may not be on a collateral
         matter;


45
  NB: standen may test on this sort of logic; i.e., even though something not explicit in the rule, can it be
done permissibly?


                                                                                                            52
           -however if a witness' own words/knowledge are being elicited on cross-
           examination (i.e., intrinsic impeachment), then this rule is irrelevant as it cannot
           govern the scope of cross-examination


2. Character of the Witness
whenever testifying, a witness puts his character for truth-telling at issue
      -impeaching with character evidence usually takes one of three forms:
               1) reputation
               2) specific instances of misconduct not resulting in criminal convictions
               3) prior criminal convictions (FRE 609)46
      -when NOT impeaching character of a witness, then the normal prohibitions
      against character evidence apply
      -extrinsic evidence only prohibited when impeaching on character [is this right??]

A. Prior Bad Acts

FRE 608(b)
        "(b) Specific instances of conduct. Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness' character for truthfulness, other
than conviction of crime as provided in rule 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if probative of truthfulness
or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the
witness' character for truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the witness being
cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate
as a waiver of the accused's or the witness' privilege against self-incrimination when
examined with respect to matters that relate only to character for truthfulness."

US v. Owens
prior falsehoods relevant to impeaching a witness by showing his prior lack of veracity.
however, even though evidence is relevant to that issue, it must still pass the 403 test and
not have its probative value substantially outweighed by its prejudice.

in this case, evidence of lying about a drug charge and gun possession charge is admitted,
but one of domestic violence is excluded on grounds that it would create undue prejudice
since the D was on trial for murdering his wife.

Questions, p. 515

US v. Drake
extrinsic evidence (under FRE 608(b)): cross-examination questions themselves are not
considered extrinsic evidence  so, does that mean they can ask about anything?
46
     i.e., someone who has broken the law is more likely to break the laws of purjury


                                                                                              53
       -however, such questions may be improper if they assume facts not in evidence


FRE 806
        "When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or
(E), has been admitted in evidence, the credibility of the declarant may be attacked, and if
attacked may be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a statement or conduct by the
declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to
any requirement that the declarant may have been afforded an opportunity to deny or
explain. If the party against whom a hearsay statement has been admitted calls the
declarant as a witness, the party is entitled to examine the declarant on the statement as if
under cross-examination."

US v. Saada FRE 806 and 608(b)
prosecution attempts to impeach dead declarant whose excited utterances were admitted
under hearsay exception and appeared to favor defendants.

prosecution arg: because 806 (read in concert with 608(b)) permits a declarant to be
impeached by the party against whom the hearsay has been admitted as if declarant were
under cross-examination, the extrinsic evidence could be admitted
       HELD: 806 does not modify 608(b)'s ban on extrinsic evidence of prior bad acts
       in the context of hearsay declarants, even when unavailable to testify

       however, if the witness offering the hearsay testimony has knowledge of anything
       that might bear on declarant's veracity, this can be explored for impeachment
       purposes on cross
       [Standen: look, this really is extrinsic evidence because the evidence is not
       coming out of declarant's mouth who is, obviously, unavailable; since it is
       impossible to impeach an unavailable declarant without extrinsic evidence, then
       extrinsic evidence should be allowed]

B. Prior Convictions – a form of character impeachment
theoretical grounds for admission
        -prior convictions show that a person who would commit a crime is also likely to
        lie on the stand by disregarding perjury laws (impeachment evidence cannot be
        used to show that the prior crime means that the witness would commit a similar
        crime again)
        -Standen: look, logic seems specious as any defendant has a motive to lie
        whether or not they have been convicted before because going to prison would
        suck

why do prosecutor's love this rule?
      -able to prejudice jury to say that since he was convicted before, he is a criminal
      type who would do criminal things again




                                                                                          54
NB: the hearsay exception for prior convictions does not solve the relevance problem
(609 is a good Bar Exam area)

FRE 609

US v. Sanders (FRE 609a and 404(b))
Sanders argues that assault and contraband convictions should not have been admitted in
his trial for assault with a deadly weapon and contraband possession, saying court abused
its discretion under 609(a) and 404(b).

his convictions are relevant per se under the rule, but court must decide if they pass the
403 test.
       -policy: when the crime is of a similar offense, it is often only slightly probative
       of the defendant's credibility; but highly prejudicial to jury in that it is more likely
       to convict because the person has done a similar crime before

609(b): maximum time limit – conviction was ten years ago or released from prison ten
years ago

fails under 404(b) because the only purpose for introducing the evidence of criminal
convictions was to show that Sanders had a "criminal disposition" (i.e., to show
character), which is impermissible.

        DISSENT: by claiming self-defense, Sanders put his intent at issue; a prior
        conviction for assault is probative of intent47, and therefore can come in under
        404(b). The fact that he has used shanks before shows that he would use shanks
        again – i.e., the conviction is probative of premeditation. EXAM


Factors for Deciding whether to exclude prior conviction for impeachment
       1. impeachment value of prior crime
       2. point in time of the conviction and the witness' subsequent history
       3. similarity between past crime and charged crime
               -the greater the similarity, the greater the danger of prejudicing the jury
               and exclusion for impeachment under 609
               -similarity, however, will favor admission if evidence offered under
               404(b) to show modus operandi             tension: when D tries to establish
       4. importance of the D's testimony                similarity in order to keep crimes out as
                                                         prejudicial, it makes the evidence more
       5. centrality of the credibility issue            likely to come in under 404(b) as modus
                                                              operandi evidence to establish identity.
US v. Wong FRE 609(a)(2)
HELD: court has no discretion to exclude evidence of a conviction of a crime if it
involved dishonesty or false statement [609(a)(2)]. In fact, admission of such crimes is
not even subject to 403 balancing.

47
  NB: you couldn't use this evidence for modus operandi because m.o. evidence is nearly always used in
order to show identity


                                                                                                         55
403 not designed to overrule specific rules (as 609(a)(2)), but to be used as a guide for
handling situations with no specific rule

US v. Brackeen FRE 609(a)(2)
Issue: does bank robbery fit the definition of "dishonesty" in FRE 609? HELD: No,
bank robbery is not per se a crime of dishonesty for 609(a)(2).


             But is can be a crime of dishonesty if it can be shown to
             include an element of falsification and is therefore a crimen
             falsi. For example, if robber pretends to have a weapon or
             dresses like a teller or security guard, then this is enough to
             give it a tinge of falsification.


"false statement" – crimes involving false statements or committed by fraudulent or
deceitful means [none of that here]

"dishonesty" – has many meanings; broadly, it would include all criminal activity
       narrowly, it would refer to a liar type. Since bank robbery involves taking by
       violence, not lying, it doesn't fit the narrow definition
               -legislative history also supports this narrower reading because it mentions
               by name, the crimes of perjury, subornation of perjury, false statement,
               criminal fraud, embezzlement, false pretense, or like crimes that are
               crimen falsi.

Impeachment Implications from Prior Convictions
General Prior Convictions                  Crimen Falsi Prior
-this is the sort of person who flouts the - this is the sort of person who flouts the
law, and who may also flout perjury laws   law, and who may also flout perjury laws
                                                        AND
                                           -since this person has committed a crime
                                           based on dishonesty, it shows he has a
                                           character for dishonesty

                                                       therefore, the impeachment value of this
                                                       sort of crime is much higher and so it can
                                                       always come in for impeachment48



Hypotheticals, pp. 536-537 [very useful marginal notes]


48
  don't forget; impeachment evidence is not admitted like normal evidence; it is not substantive evidence
[unless, of course, it could have come in for some reason other than impeachment]


                                                                                                        56
Luce v. US
HELD: admission of evidence of a prior conviction may be made conditional on whether
and to what a defendant testifies; that is, to raise and preserve a claim for review of
improper impeachment, a defendant must testify. [in this case, if D testified to having no
involvement with drugs, then evidence of a prior drug conviction could come in; if he
only testifies about attempting to evade arrest, then it would stay out]

since the only way to truly judge the prejudicial effect of impeachment evidence is to
know what the D will testify to, a court often can only rule after testimony has been given
[this, of course, can be reviewed at appellate level]

Ohler v. US
if a D admits to a prior conviction on direct, D loses the right to challenge a ruling that
judge would have let the evidence in anyway on cross

Luce and Ohler Implications:
       1) difficult to have ruling in your favor for MIL
       2) law says tough luck: you must pay a price to take the stand, and that is the
       possibility of being impeached. Moreover, in order to preserve your objection to
       the MIL, you must testify

C. Bad Reputation for Truth and Veracity

great hypo p. 541


3. Psychiatric Condition

US v. Lindstrom
D's convicted of falsifying insurance records to defraud insurance companies.

Appeal: D's say trial judge improperly placed limitations on defense questioning of govt's
chief witness re: her psychiatric treatment and confinement.
Counter: govt says that the psychiatric condition of a witness is merely a collateral issue.
       [Court says – whether or not that is true, the issue of credibility is for the JURY to
       decide.]49

Some forms of mental illness have a high degree of probative value on the issue of
credibility. Mental illness may also tend to produce bias in the witness.

This is not precisely a FRE 608(b) question because the credibility of a witness can
always be attacked by showing that his capacity to observe, remember or narrate is
impaired.



49
     CREDIBILITY is always a jury question. A 104(b) issue. Know this for EXAM!!!


                                                                                              57
HELD: district court abused discretion and violated D's 6th Amend rights by not
allowing the defense to confront witness on her mental health. As she was the chief
witness for the prosecution and her credibility was central to govt's case, the defense
should have been allowed to question that credibility more fully.


Hypotheticals (p. 545)

"Witnesses: Impeachment by Psychiatric Testimony"
-until the 1950s or 1960s, testimony by experts (shrinks, etc) on this issue was considered
an innovation on prior forms of impeachment, and not easily admitted [?]

4. Prior Statements to Impeach or Rehabilitate – FRE 613
(a) Examining witness concerning prior statement. In examining a witness concerning
a prior statement made by the witness, whether written or not, the statement need not be
shown nor its contents disclosed to the witness at that time, but on request the same shall
be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of
a prior inconsistent statement by a witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a party-opponent as defined in
rule 801(d)(2).

Coles v. Harsh
[action to recover money for seduction of a wife]
Plaintiff tries to impeach witness, James Thompson, by use of prior inconsistent
statements when P testified to something that Thompson had said to him in the past
[extrinsic impeachment].
        However, P failed to lay proper foundation [i.e., ask witness if he remembers
making the inconsistent statement and then giving witness a chance to remember and
explain the inconsistency with his previous testimony before you can call him a liar]


FRE 613: there is no need to offer witness a chance to defend/explain his statement
before being called a liar. All that is necessary is that he be afforded an opportunity to
explain it, and this opportunity can come afterwards.

Great example for REVIEW given 552-553 [sounds exactly like what Standen has been
saying in class


FRE 801(d)(1) – Prior Statement by Witness
(d) Statements which are not hearsay. A statement is not hearsay if—

        (1) Prior statement by witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is (A)


                                                                                             58
inconsistent with the declarant's testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B)
consistent with the declarant's testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive, or (C)
one of identification of a person made after perceiving the person;

Tome v. US FRE 801(d)(1) – Prior Statement by Witness
HELD: out-of-court consistent statements made after the alleged fabrication OR after the
alleged improper influence or motive arose are NOT admissible under FRE 801(d)(1)(B).
       premotive rule: prior consistent statements are admissible to rehabilitate the
       witness only if they were made prior to the time that the bias or interest arose


          Standen: if a prior consistent statement is deemed relevant, why are courts so
          reluctant to admit them?
                  - waste of time, repeating same statement
                  - may lead to character inference [i.e., look she tells the same story
                  repeatedly, so she must be an honest person]

801(d)(1)(B) – permits hearsay statements to be converted into substantive evidence and
used for their truth. [Rehnquist explains this in his dissenting opinion]
       -Standen: admission under this rule for rehabilitation of witness can thus be
       extended to substantive evidence

NB: if fail to get statements in under 801(d)(1)(B), as in this case, one way to get them in
is to have the declarants certified as experts, then have them give an opinion (yes, AT
was molested); then ask basis for their opinion (she told me she was).


Hypotheticals (565-566)

5. Bias

US v. Abel
Abel convicted for bank robbery. D impeaches prosecution witness, Ehle, with the
testimony of Mills. Ehle then recalled to stand to impeach Mills, saying that Mills was a
member of prison gang that would have killed Ehle for saying what Mills claimed Ehle
had said.

Appeal: disallowed the Ehle's impeachment of Mills impeached witness by means of
guilt by association and thereby implicated D by association which was too prejudicial
and failed 403.

HELD: Ehle's testimony was sufficiently probative of Mills' bias in favor of Abel to
warrant its admission into evidence.




                                                                                           59
       -since no rule specifically governs this situation, the key is relevance (rule 401 –
       "relevant if it tends to make a material element of charge more or less likely" and
       402 – "all relevant evidence comes in unless by Constitution, Congress, or rule)
       -def BIAS: "a relationship between a party and a witness which might lead the
       witness to slant, unconsciously or otherwise, his testimony in favor or against a
       party"
               -proof of bias almost always relevant because jury is the weigher of
               credibility and needs such information to accomplish this task

Bias has several facets:
       1. the bias exists
       2. source of the bias: in this case, both men are members of the same group
       3. strength of bias: this group is committed to lying

Hypos, p. 571-572


CHAPTER VI: CONFIDENTIALITY & CONFIDENTIAL COMMUNICATION

Part A: Attorney-Client Privilege – FRE 501
Elements of FRE 501:
      1. privilege based on principles of CL as
      2. interpreted by reason and experience and
      3. federal courts should look to state law when possible

The classic CL Rule is from United Shoe (p. 578) listing elements of privilege:
       1. communication from client (but not records/objects made for a purpose other
       than communication with lawyer – e.g., business records)
       2. communication to lawyer or his employee
       3. no third party present (unless a necessary party, i.e., parent, interpreter, etc)

A Lawyer's legal opinions also privileged because they can reveal what the client had
communicated to the lawyer

Policy Rationale behind privilege rules:
       1. prevent lawyers from becoming snitches
       2. utilitarian: encourage disclosure to lawyer so lawyer can offer proper advice

NB:    -"Privilege" applies in a court of law; "Confidentiality" applies everywhere else.
       -privilege is external to evidence law because it works in derogation of the central
       principle of evidence law: i.e., it operates to exclude relevant evidence
               EXAM arg: criminal defendant in a conspiracy would say, "Hey, I'm
               innocent on this charge but only way I can prove it is to get another D's
               lawyer on stand and testify to what his client told him. This seems to
               violate due process rights, but privilege maintained anyway!!




                                                                                              60
US v. Woodruff
HELD: attorney-client privilege does not shield an attorney from disclosing whether or
not he conferred with his client about the time and place for his trial (when that client
skipped the trial and is now wanted for bail jumping).

       -when attorney informs client of time-place for trial, he is acting as an officer of
       the court, and not making a confidential communication
              -this sort of communication does not involve the subject matter of the D's
              legal problem

Standen: isn't the holding in Woodruff actually bad because it forces the lawyer to
establish, by his testimony, one element of the crime of failure to appear (i.e., that person
had knowledge of the time to appear)?

Upjohn v. US
making a document Upjohn protected:
      1. attorney requests info
      2. employees must know that they are communicating with a lawyer [and thus
      have anticipation of protection]
      3. action of attorney/employees directed by corporate superiors

re: scope of attorney-client privilege in corporate context
-Upjohn asserts that questionnaires sent to employees by general counsel in order to
investigate alleged misfeasance were protected by privilege

Appellate Court: privilege not applicable to those outside the corporate control group
(i.e., composed only of those employees who may influence decision about action to be
taken by corporation).

HELD: since privilege protects both the giving of professional advice and the giving of
information to lawyer to enable him to give sound and informed advice, it should cover
all information gathered needed by lawyer to make sound decisions and give sound legal
advice.
        policy: the attorney and the client must be able to predict with some degree of
        certainty whether particular discussions will be protected [if privilege only limited
        to a control group, it creates uncertainty as to the definition of that group]

Limit: the privilege applies only to disclosure of communications, but not to facts. [i.e.,
one need not tell someone what he said to a lawyer, but he must disclose any fact in his
knowledge if asked about that fact under oath]


"Note on Work Product Doctrine" – a rule of discovery, not evidence
-work product is: everything prepared in anticipation of litigation, except mental
impressions, conclusions, opinions, or legal theories of an attorney.



                                                                                           61
-differs from attorney-client privilege in three ways:
        1. privileged material can never be discovered, but work product can upon
        showing of substantial need;
        2. privilege applies only to confidential communications, while work product is a
        much larger category of stuff;
        3. privilege covers all communications, whether or not they are made in
        anticipation of litigation

City and County of San Francisco v. Superior Court
Dr. Catton who examined D at request of D's lawyers in preparation for a lawsuit will not
reveal what he learned, claiming that it is privileged. D's attorney's also argue that the
information is privileged.
        HELD: Catton was an "intermediate agent" between D and his attorneys and may
therefore invoke attorney-client privilege.
        The privilege embraces not only written and oral communications, but actions,
signs, and other means of communicating information by a client to his attorney. That is,
a communication by any form of agency employed or set in motion by the client is within
the privilege.

HOWEVER, had doctor treated Hession prior to this, the privilege would not apply; and
if doctor treated him after the exam requested by lawyers, the privilege would not apply.
[therefore, always send clients to someone other than their family doctor]

policy: attorney-client privilege justified in belief that the benefits derived therefrom
justify the risk that unjust decisions may sometimes result from the suppression of
relevant evidence

Clark v. State
Can a person who overhears an otherwise privileged conversation testify to that
conversation's contents in court?
       generally, evidence acquired by eavesdropping is admissible.
HELD: evidence may be admitted

Moreover, Lawyer advised client to dispose of murder weapon. This cannot be deemed
preparing his defense at law, but rather is more akin to accessory to murder.
       STANDEN: is this actually a bad decision. The client never asked for illegal
       advice. The lawyer told him to get rid of the gun without the client asking how or
       if he should get rid of it. In other words, the client's actions did not initiate crime-
       fraud exception, so it should not apply here since it is the client who owns the
       privilege, not the lawyer! I.e., the evidence of the conversation should have
       remained privileged, at least in the murder trial.


"Restatement 3rd of Law: Law Governing Lawyers"
the crime-fraud exception: [aka, seeking illegal advice]
Attorney-client privilege does not apply to a communication occurring when a client:



                                                                                            62
        1. consults a lawyer for aid in committing a crime or fraud or to assist a 3rd
        person to do so; or
        2. regardless of purpose at time of conversation, uses the attorney's advice to
        engage in crime or fraud.

-A client may ask if a certain action is illegal. If client then refrains from committing that
action, the communication is privileged.
-A client may also consult with a lawyer about the ramifications of past criminal or
fraudulent acts, so long as no intention of committing such acts again.

A person seeking to invoke this exception to privilege doctrine must present a prima facie
case for the exception by showing a reasonable basis for concluding that the elements of
the exception exist.

US v. Zolin
FRE 104(a): does not flatly prohibit in camera review of material claimed to be
privileged.

HELD: when a party asserts the crime-fraud exception to privileged material, it must
make some threshold showing that such review is appropriate.
      The threshold showing is:
             "a showing of a factual basis adequate to support a good faith belief by a
             reasonable person"
             -factual basis
             -supports good faith belief
             -of reasonable person

Materials to be permitted to make this threshold showing exclude any privileged material,
as stated in FRE 104(a).

Swindler & Berlin v. US
privilege is eternal; it survives death


Part B: Physician-Patient & Psychotherapist-Patient Privileges
1) States courts – these privileges created by statute
2) Federal courts – typically no recognition of this privilege

Steps to claim medical privilege:
        1. must be a professional relationship, where patient sees doctor for medical
        treatment (therefore, a court-apptd shrink's information is not privileged)
        2. covers all info (including gestures, looks, etc) necessary to make diagnosis
        3. most states have exceptions: centrally, disclosure required in criminal
        proceedings
        4. it is easily waived [i.e., Prink]




                                                                                           63
Prink v. Rockefeller Center
1. personal injury claims almost always place medical/psychological information at issue
which automatically waives privilege
2. in a wrongful death suit, jury needs to value a life, and someone's psychological or
medical condition is part of that

this was a wrongful death action; a creature of statute. As such, it was an action that
could be brought had the decedent survived. Therefore, should he have wanted to bring
the action, he would have had to waive privilege in order for D to have all information
needed to defend the claim.
        Therefore, the act of bringing the action in which mental or physical condition is
affirmatively put in issue, a party waives privilege.
        To allow P to succeed in her claim by hiding behind privilege would be unfair.


Hypos, 601-602 [some answers written in margins of book]

1) It was error to force attorney to testify that D was afraid of V's testimony because this
would say to the jury, "Hey, D thought V's testimony was harmful to him." Therefore,
the attorney's testimony would help convict his client. [cf, error, according to Standen, in
Woodruff]
        NB: in absence of client (who owns privilege and may waive) the lawyer has a
duty to maintain privilege and the judge has obligation to see that it is maintained as well.

3) X waived his privilege by his actions in suing his own lawyer and putting at issue the
communications between himself and his lawyer

breach of duty exception: when client accuses lawyer of misfeasance, communications
are relevant to resolving the charge

4) close call as to whether these are Upjohn protected: i.e., what was the main purpose of
Z? Was it to get the report to the lawyer (in which case it is protected) or was it for the
accident report that would just be a normal business record?

5) Since lawyer is to act in client's behalf, lawyer's disclosure of facts to P in order to
prevent his client from getting a traffic ticket is an attempt by lawyer to protect client's
interests. Therefore, in effect, the client waived his own privilege!! This is known as
"implied waiver".

6) Clearly Upjohn protected

7) Not protected by Upjohn because no mention that documents were originally requested
by counsel.




                                                                                               64
Part C – The Marital Privileges

There are two different ones:
       1. marital communications privilege:
              -privileges any private communications between husband and wife made
              during the marriage.
              -The privilege survives dissolution of the marriage.
              -Each party holds half of the privilege.
                      -Either party can bar revelation of this information even if the
                      other party waives.

       2. privilege against adverse spousal testimony:
               -privileges observed acts and communications made in presence of a
               third party
               -only testifying spouse holds the privilege [i.e., defendant spouse cannot
               bar testimony]
               -applies to information pre- or during marriage [because policy is to foster
               marital harmony
               -privilege dies when marriage dies [divorce]

Trammel v. US
HELD: the Hawkins' privilege permitted a defendant spouse to prevent a witness spouse
from offering adverse testimony to criminal acts and communications in the presence of a
third party is revoked.

In Funk (1933), the US Supreme Court abolished prohibition against favorable testimony
from a spouse but left in place bar against adverse testimony.
       The Court maintained this bar (8 majoirty, with 1 concurring) in Hawkins (1958).

marital privilege: any private communications between spouses are totally privileged, as
with attorney-client.

Hawkins privilege: invoked to prevent spouses to testifying to evidence of criminal acts
and of communications made in the presence of third persons
        [this stands in contrast to all other privilege rules which only protect one-on-one
        communications]


Part D – Priest/Penitent
       1. both parties equally hold the privilege
       2. therefore, either party can stop the other from testifying

"seal of the confessional"
        -no priest/clergyman shall be compelled to testify to what was told to them in
        their professional capacity and in confidence. Some states allow a priest to testify
        should he wish



                                                                                          65
CHAPTER VII - WRITINGS
THE BEST EVIDENCE RULE
     1. either produce the original writing, recording, or photographs,
     2. or give a good excuse as to why you can't produce it

                              Writing




       Testimony                             Content of writing

               -one can testify as to one's opinion about contents
               -no testimony permitted to say "the writing contains"


       Duplicates of originals permitted if:
              -it accurately reproduces the original or
              -good excuse for not having the original

"in proving the terms of a writing, where such terms are material, the original writing
must be produced, unless it is shown to be unavailable for some reason other than the
serious fault of the proponent."

Summary: when offering evidence based on a document, proponent must submit the
original document into evidence; if no original, so long as proponent explains the absence
of the document, he may proceed with questioning based on the document

document = "any physical embodiment of information or ideas"

recordings
       treated like documents; should an exact copy be admitted if the proponent
       destroyed the original in good faith (i.e., to record over it again)?

KEY: best evidence rule applies only when someone wants to introduce the contents of
writing. Just because some other testimony is given that "could be proven" by a writing,
does not mean there was a violation of the best evidence rule

Herzig v. Swift
"best evidence" does not mean the best available evidence to prove a point;
best evidence applies only to proving the contents of a writing by introduction into
evidence of that writing




                                                                                          66
Meyers v US
DISSENT says that the basic evidence rule should be changed to: when a party has
available evidence which is relatively certain, he may not submit evidence which is far
less certain (e.g., in a contracts case, the written contract is used by the court, not the
recollections of the contracting parties).

People v. Enskat
in order to prove the contents of an obscene motion picture, the entire movie must be
admitted, not just a few stills and then testimony about the audio and visuals of the film.




FRE 1007
contents of writings, recording, photographs may be proved by
       1. the testimony or deposition of the party against whom they are offered; or
       2. by that party's written admission
       3. without producing the original


AUTHENTICATION

FRE 901
      1. every piece of evidence must be authenticated before admission
      2. this is satisfied by evidence reliable enough to show that it is what its proponent
      claims it to be

US v. Dockins
FRE 901- evidence of authenticity at trial need not be conclusive, merely sufficient to
support finding that the matter in question is what the proponent claims

First State Bank v. Maryland Casualty Co




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