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					                                                                                                                                                                       Abhijit Das, 1999
                                                                                                                                                    Evidence Outline, reprint 12/14/2011


Abhijit Das – Evidence Outline
Table of Contents


RELEVANCE ........................................................................ 1                    WITNESSES ........................................................................ 14
   WHAT KIND OF PROOF? ....................................................... 1                           COMPETENCY AND PERSONAL KNOWLEDGE ................... 14
   IS THE EVIDENCE RELEVANT TO THE ISSUE? ....................... 1                                                       FRE 601 (119), 602 (121), 603 (122) ...................... 14
                   FRE 401 (71) ..............................................................1             Competency Assumed.................................................... 14
   RELEVANT BUT STILL EXCLUDED ....................................... 1                                     Personal Knowledge Required ..................................... 14
                   FRE 403 (75) ..............................................................1
                                                                                                             Oath .............................................................................. 14
   CONDITIONAL RELEVANCE DETERMINATIONS .................... 1
                                                                                                             Dead Man Statutes ........................................................ 15
                   FRE 104 (44) ..............................................................1
                                                                                                             Testimony by Jurors ...................................................... 15
   LIMITED INCLUSION OR EXCLUSION .................................... 2
                   FRE 105 (49) ..............................................................2           HYPNOSIS IN THE COURTROOM ......................................... 15
                   FRE 106 (50) ..............................................................2           OPINION TESTIMONY AND SCIENTIFIC EVIDENCE ........... 15
   RELEVANCE AND PROBABILITIES ....................................... 2                                                  FRE 701 (161), 702(162), 704 (165), 705 (167)...... 15
                                                                                                             Lay Witnesses ................................................................ 15
RELEVANCE PART DEUX ................................................ 2                                       Expert Witnesses ........................................................... 15
   CHARACTER ........................................................................ 2                    IMPEACHMENT OF WITNESSES.......................................... 16
                   FRE 404 (77) ..............................................................2                    FRE 607 (129), 608 (130), 609 (134), 613 (156), 801
                                                                                                                   (178) 16
     Character in Civil Cases ................................................. 2
                                                                                                             Impeaching Credibility ................................................. 16
     Character in Criminal Cases .......................................... 2
                                                                                                           REHABILITATION OF WITNESSES ...................................... 18
     Victim’s Character .......................................................... 3
                                                                                                                          FRE 608 (130) ......................................................... 18
   PRIOR ACTS / HABIT........................................................... 3
                                                                                                             Basic Principles ............................................................ 19
                   FRE 404(77), 406(84) ................................................3
                                                                                                             Ways to Repair… .......................................................... 19
     Other Bad Acts of Misconduct ........................................ 3
                                                                                                           LEADING QUESTIONS ........................................................ 19
     Habit ............................................................................... 4
                                                                                                                          FRE 611 (147) ......................................................... 19
   PUBLIC POLICY EXCLUSIONS / PLEAS ................................. 4
                                                                                                             Cross Examination ........................................................ 19
                   FRE 407 (86), 408, 409, 410, 411 ..............................4
                                                                                                             Direct Examination ....................................................... 19
     Relevance Exceptions for Public Policy ......................... 4
                                                                                                           PRIVILEGES ...................................................................... 19
     Documents and Records.................................................. 5
                                                                                                                          FRE 501 (113), 502 (299), 503 (300), 504 (306)..... 19
   TYPES OF EVIDENCE: SEXUAL ASSAULT / RAPE ................. 5
                                                                                                            State & Common Law ................................................... 19
                   FRE 412 (99), 413 (106) ............................................5
                                                                                                            Social Worker-Client .................................................... 20
       Rape ................................................................................ 5
                                                                                                            Physician-Patient .......................................................... 20
       Similar Sexual Assault Cases .......................................... 5
                                                                                                            Husband-Wife ............................................................... 21
HEARSAY .............................................................................. 5                   WRITTEN MEMORANDA ................................................... 21
                                                                                                                          FRE 612 (153) ......................................................... 21
   BASIC DEFINITION .............................................................. 6
                                                                                                               Adverse Party ................................................................ 21
                   FRE 801 (a-c) (178) ...................................................6
   STATEMENTS WHICH AREN’T HEARSAY ............................. 7                                      FOUNDATIONAL EVIDENCE AND
                   FRE 801(d) (179) .......................................................7           AUTHENTICATION .......................................................... 21
   DANGERS OF HEARSAY........................................................ 9
   BENEFITS OF TESTIMONY; CONTRAST WITH HEARSAY ........ 9                                                 AUTHENTICATION .............................................................. 21
                                                                                                                          FRE 901 (247) ......................................................... 21
   HEARSAY EXCEPTIONS (DECLARANT  UNAVAILABLE) ..... 9
                                                                                                             Steps in Authenticating ................................................. 21
                   FRE 803 (191) ............................................................9
                                                                                                             Tape Recordings ........................................................... 21
   POLICY – FOR EXCEPTIONS (DECLARANT = UNAVAILABLE)
                                                                                                             Telephone Conversations .............................................. 22
   ........................................................................................... 13
                                                                                                             Self-Authenticating Exhibits.......................................... 22
   HEARSAY EXCEPTIONS (DECLARANT = UNAVAILABLE) ... 13
                   FRE 804(b) (221) .....................................................13               BEST EVIDENCE DOCTRINE ............................................. 22
                                                                                                                          FRE 1001 (259), 1002 (261) .................................... 22
                                                                                                               Duplicates ..................................................................... 22
                                                                                                               Summaries..................................................................... 22
                                                                                                               Judge/Jury Allocation ................................................... 22



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                                                                                                                                                              Abhijit Das, 1999
                                                                                                                                           Evidence Outline, reprint 12/14/2011


BURDENS OF PROOF ....................................................... 22                                      FRE 301 (63) ........................................................... 23
                                                                                                    JUDICIAL NOTICE ............................................................. 24
   BURDEN OF PRODUCTION................................................. 22                                      FRE 201 (53) ........................................................... 24
                 FRE 301 (63) ............................................................22          Legislative Facts ........................................................... 24
     Presumptions................................................................. 22                  Adjudicative Facts ........................................................ 24
   BURDEN OF PERSUASION .................................................. 23                          Mandatory Judicial Notice ........................................... 24
                 FRE 301 (63) ............................................................23
                                                                                                       Permissive Judicial Notice ............................................ 24
     Generally....................................................................... 23
                                                                                                       Effect of Judicial Notice ................................................ 24
     Allocation ...................................................................... 23
     Standards of Proof ........................................................ 23
   BURDENS IN CIVIL CASES.................................................. 23
                 FRE 301 (63) ............................................................23
   BURDENS IN CRIMINAL CASES ......................................... 23




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                                                                                                              Evidence Outline



Relevance
                                                                 Relevant But Still Excluded
   Clark: Relevance is a low threshold, and it is very           FRE 403 (75)
      difficult to exclude on this basis. The judge makes
      the call based on his experience. The “step                   Clark: FRE403 is also written to favor admissibility
      method” is used to show aspects of the situation.                because the burden is to prove why it shouldn’t be
                                                                       admitted, not the other way around. Also, never
                       Admissible                                      make this your first argument – it signals you
                      Inadmissible                                     have nothing else on which to exclude.
What Kind of Proof?                                              In the judge’s judgment, if the evidence’s relevance is
1. Direct Evidence – proves a proposition directly. If           “substantially outweighed by the danger of unfair
   believed, solves the matter at issue. [e.g. testimony         prejudice, confusion of the issues, or misleading the
   by eyewitness that he saw defendant kill victim]              jury, or by considerations of undue delay, waste of
2. Circumstantial Evidence – tends to prove a                    time, or needless presentation of cumulative evidence”
   proposition indirectly through inference (additional          it may be excluded.
   reasoning is used to reach the proposition) [e.g.
                                                                 1. Prejudice – “unfair prejudice” is the key: judgment
   testimony by officer that defendant was seen
                                                                      will be made on an improper basis such as emotion.
   running after gun shot that killed victim was heard]
                                                                      a. gruesome pictures – often excluded, especially
                                                                           if the pictures are large or in color. [State v.
Is the Evidence Relevant to the Issue?                                     Chappel, AZ, 1983 (79) - which is an exception
FRE 401 (71)                                                               to the general rule] However, when necessary to
FRE401 merges the “materiality” and “probative” inquiry                    show how the defendant brought about death,
   into one test.                                                          pictures are not usually excluded despite
                                                                           prejudicial impact.
1. Does it tend to prove or disprove a fact of                        b. prior crimes – usually excluded because the
   consequence?                                                            possibility jurors will be less concerned with the
a. Materiality – Whether the evidence being offered                        high burden of proof for a person with a record
   relates to an issue in the case – (relationship                         – it is an abuse of discretion to admit name and
   between the fact and the applicable substantive law                     type of prior conviction despite a defendant’s
   – certain matters like bias and credibility are                         offer to stipulate to a conviction [Old Chief v.
   always in issue.) [e.g. In an action for negligence in                  US, US, 1997 (s377)]
   a car accident, evidence that car was going 35 in a           2. waste of time / cumulative - limits may be
   20 would be material, whereas 35 in a 55 wouldn’t]                 imposed on the number of witnesses, if repetitive,
   If direct evidence, and passes this test, always                   etc.
   relevant. Circumstantial evidence must satisfy                3. no unfair surprise – FRE403 doesn’t recognize
   probative test.                                                    “unfair surprise” as a ground for excluding
b. Probative – The evidence must make the factual                     otherwise relevant evidence.
   proposition more or less likely than without the
   evidence. [e.g. testimony by witness to assert she
   thought car was going 55 to back up claim that car            Conditional Relevance Determinations
   was travelling at 55 makes it more likely that it was]        FRE 104 (44)
        “Step Method” – When the link isn’t obvious, an          Ordinary relevance determinations do not involve a
        “evidential hypothesis” or “chain of inference”          finding of fact. Some evidence, however, is relevant
        must be provided.                                        only if some other preliminary fact exists. [e.g. the fact a
        a) the longer the chain, the less probative value,       warning was made only relevant if it was heard.
        b) the circumstantial evidence need not make             preliminary fact = whether it was heard.]
        the entire fact more probable, but rather make an        1. jury decides – in a majority of courts and the FRE
        element of that fact more probable.                          hold that the jury should decide questions of
                                                                     conditional relevance


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                                                                                                             Abhijit Das, 1999
                                                                                                             Evidence Outline


2. judge decides – a judge may disallow of he
   determines that a reasonable jury could not possibly
   find that the preliminary fact existed. A judge may
   allow evidence subject to a promised later proof of
   the preliminary fact.
   Clark: 104(b) is a dumb rule. To be subject to this
      rule evidence must be type that can be                     Relevance Part Deux
      disregarded if condition is deemed unmet.
      Evidence that may linger, like membership in the                                  Admissible
      KKK, wouldn’t really work. *** CHECK THIS                                        Inadmissible
Limited Inclusion or Exclusion                                   Character
FRE 105 (49)                                                     FRE 404 (77)
If evidence is admissible as per one defendant or                Character in Civil Cases1
purpose and not another, the court can give limiting             1. Generally not admissible to prove probable conduct
instructions to the jury.                                           [e.g. Plaintiff can’t introduce evidence that
   Clark: you generally don’t want this. Not only don’t             defendant is usually a reckless driver to prove that
      juries always follow the rules, this ends up calling          he was negligent on the day in question.]
      attention to evidence you don’t even want the jury         2. Admissible when directly in issue
      to consider.                                                  a. Character is an ultimate fact in dispute and
                                                                        must be proved by competent evidence2
FRE 106 (50)
Generally known as the rule of completeness, this rule                  i. Defamation: Plaintiff sues defendant for
allows another part of a writing earlier introduced to be                    calling plaintiff a thief and defendant pleads
presented in order to correct what would have otherwise                      truth as an affirmative defense – that
been an inaccurate or unclear picture of the situation.                      plaintiff is as despicable as they say he is.
                                                                        ii. Negligent Entrustment: plaintiff sues
                                                                             defendant for negligently permitting the use
Relevance and Probabilities                                                  of car by reckless driver, driver’s character
If probability evidence – in a case where plaintiff was                      for recklessness at issue – should not have
hit by unidentified blue bus the fact that 85% of blue                       lent car, etc.
buses in town are operated by D - is to be introduced, it               iii. Wrongful Death – as evidence that the
must be upon a solid foundation. [Consider People v.                         damages for loss of the individual – a
Collins, CA, 1968, 96 – black man, blond girl in yellow                      compulsive gambler for example – is not
car – mathematician multiplies probability of partly                         great
yellow car (1/10) by moustache (1/4) by girl with                   b. Evidence of either reputation in the
ponytail (1/10) by girl with blond hair (1/3) by all the                community, opinion, or specific acts to show
other factors to get 1 in 12 million that couple exists                 this character issue. Hence, FRE allows any type
with such criteria – Court reversed conviction – a) no                  of evidence (reputation, opinion, or specific
scientific basis for the probability numbers, b) no                     acts)3 when character is in issue.
showing that factors were independent – which means
no reason to believe they should be multiplied, c) jury
may accord too much weight to the resulting figure               Character in Criminal Cases4
instead of any independent probabilities.]                       1. Generally bad character inadmissible to prove he
   Clark: You might get away with statements like                   is more likely to have committed crime5
      “what are the chances” but this form is too
      conclusory.
                                                                 1
                                                                   FRE 404
                                                                 2
                                                                   FRE 405(b)
                                                                 3
                                                                   FRE 404(b)
                                                                 4
                                                                   FRE 404

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                                                                                                                 Abhijit Das, 1999
                                                                                                                 Evidence Outline


2. Accused may always introduce evidence of good                  Prior Acts / Habit
   character having tendency to show he didn’t                    FRE 404(77), 406(84)
   commit the crime whether or not he takes the stand.            Other Bad Acts of Misconduct
   a. Methods of Proving Character                                1. Admissible to prove another element of present
        i. traditional: witness limited to reputation                crime7 and not to show defendant had criminal
            only, opinion or specific acts not allowed.              propensity. It is unclear what level of proof is
        ii. modern: witness may testify to defendant’s               required on the prior act sought to be introduced or
            reputation and his personal opinion of                   who should decide it.8
            defendant, but not specific acts, which are           2. Huddleston four part test employed by many courts
            still not admissible                                     in which a judge:
3. Prosecution may not initiate evidence of bad                      a. decides whether the evidence is offered for a
   character of defendant, but if defendant puts                         proper purpose
   character in issue by having a character witness                  b. decides if it is relevant for that purpose
   testify as to his opinion of defendant’s character,               c. decides if the probative worth is outweighed
   prosecution may rebut by showing bad character.                       by the risk of unfair prejudice
   a. by merely taking the stand, the accused                        d. limiting instruction on the request
        doesn’t “open the door.”                                  3. Upon reasonable notice by request of defendant or
4. Cross examination                                                 prosecution in a criminal case, admissible to prove
   a. majority view: prosecution may test the                        another purpose: MIMIC rule: Motive, Intent,
        credibility of defense witnesses by asking                   Mistake (Absence of), Identity, Common Plan or
        whether witness has heard of particular                      Scheme9
        instances of misconduct (reputation) and may                 a. Identity – if modus operandi is a crime
        ask about arrests and convictions                                signature – must be very similar so as to almost
   b. modern view: inquiry is allowed regarding                          preclude the possibility that two different
        specific instances of conduct [“Do you know                      criminals were involved.
        that ------?” is allowed. if a witness denies                b. Intent – if the person admits the act, but offers
        knowledge of specific instances, prosecution                     an innocent explanation, intent evidence could
        cannot prove by extrinsic evidence                               rebut that innocence (evidence of similar acts,
        (arrest/conviction records)                                      for example) – relatively lax standard.
                                                                     c. Absence of Mistake – other crimes evidence
Victim’s Character6                                                      used to show that the act in question was not
1. Admissible in Homicide Cases – when defendant                         inadvertent [e.g. Huddleston v. US,10 defendant
    claims self-defense, he may introduce evidence of                    purchased stolen goods from seller but claimed
    victim’s violent nature to show that the victim was                  not to know they were stolen. Evidence that
    actually the aggressor. The prosecutor may then                      defendant had previously purchased other stolen
    introduce evidence of victim’s good character. Most                  goods from this seller was admissible.]
    courts do not allow prosecutors to offer rebuttal                d. Common plan or scheme – evidence defendant
    evidence of defendant’s reputation for violence to                   recently stole burglary tool is probative of
    show that he was the aggressor.                                      burglary or that defendant used a similar method
2. Methods of Proving Character – reputation and                         as the crime alleged
    opinion evidence is admissible to show character of
    the defendant or victim. On cross examination,
    inquiry is permitted into specific instances of past          7
    conduct of victim.                                              Examples/Clarification: often how litigators try to sneak in
                                                                  previous crimes evidence is by trying to convince the judge
                                                                  that it is needed to prove an element of the current crime
                                                                  8
                                                                    see page 497
                                                                  9
                                                                    Examples/Clarification: while usually used by a prosecutor,
5
  Rationale: such evidence creates extreme prejudice – jury       defendants in signature crimes sometimes use this technique to
may convict regardless of guilt in crime charged                  show that someone else committed the crime.
6                                                                 10
  FRE 404(a)(2)                                                      page 497

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                                                                                                                      Abhijit Das, 1999
                                                                                                                      Evidence Outline


                                                                         defect in product or design, or need for warning16
Habit                                                                    (Applied by a majority of courts to product liability)
1. Routine reactions to regular responses as compared                    Such evidence is admissible to:
   to character evidence – quality of conduct                            a. prove ownership or control
2. Habit is more specific than character evidence [e.g.                  b. prove defendant has destroyed or concealed
   #1) habit: defendant walk to work on the same                              evidence [e.g. repairing fender to hide evidence
   streets every day and stops at the same stop sign                          of collision]
   every day. #2) character: fact that defendant is                      c. rebut evidence of defendant’s witnesses on
   “careful” or “careless.” Can’t use drinking as                             safety of the condition (“there was no hazard”
   evidence to prove drunk on a specific occasion.                            with a later sign that says “beware, hazardous”)
3. Rule:11 Habit or routine business practice is                         d. to rebut a claim that all feasible safety measures
   admissible to prove conduct of person or                                   had been taken17
   organization on a specific occasion conformed to the               2. Settlement Offers or negotiations18 – offers to
   habit or routine. Some states reject habit evidence or                compromise or compromises in settlement of a
   allow it only where no eyewitnesses are available.12                  disputed claim not admissible to prove liability for
4. Habit must be routinely performed without                             or invalidity of claim or amount19 Conduct or
   deliberation13 [e.g. #1) evidence that mail is                        statements made during negotiations are also
   routinely put in a certain stack to be picked up by                   excluded (it’s all my fault, I’ll pay you $5000 –
   mail clerk and mailed by same is admissible to                        under FRE, all excluded). Such evidence is
   prove a particular letter was picked up and mailed.                   admissible to:
   #2) Halloran v. Virginia,14 where testimony that an                   a. prove bias or prejudice of a witness
   auto mechanic regularly used an immersion heating                     b. negative contention of undue delay in presenting
   coil to heat a refrigerant in violation of warnings and                    a claim
   labels had been excluded. Held: testimony should                      c. prove obstruction of criminal prosecution
   have been allowed. Such evidence of habit is                       3. Offers to pay medical expenses20 - evidence that
   admissible to prove conformity on a specific                          defendant paid or appeared to pay plaintiff’s
   occasion, because “no one who has demonstrated a                      medical bill is not admissible to prove liability for
   consistent response is more likely to repeat that                     the plaintiff’s injuries21 Unlike settlement
   response when the circumstances arise again.”]                        negotiations, conduct or statements accompanying
                                                                         offers to pay medical expenses are admissible22

Public Policy Exclusions / Pleas
FRE 407 (86), 408, 409, 410, 411                                      16
                                                                         Rationale: conduct is equally consistent with injury by mere
Society wants to encourage this behavior
                                                                      accident or through contributory negligence, and social policy
Relevance Exceptions for Public Policy                                of encouraging people to make such repairs [FRE 407 note]
1. Subsequent Remedial Measures:15 Evidence of                        see also Flaminio v. Honda Motor Co, page 506, which
    repairs following an injury to the plaintiff is                   discusses the applicability of FRE rules to diversity cases, and
    inadmissible to prove negligence, culpable conduct,               the interest the Congress has procedurally in preventing juries
                                                                      from focussing on the wrong issue – remedial designs – and
                                                                      hence
                                                                      17
                                                                         considered to be opening the door to this type of claim.
                                                                      18
                                                                         FRE 408
11                                                                    19
   FRE 406                                                               Rationale: Offers may be motivated by “desire for peace
12
   Rationale: some fear that habit evidence can consciously be        and not from weakness of position” and public policy favors
used to one’s advantage (you always do something at 6 and             settlement of disputes [FRE 408 note]
                                                                      20
hence there’s an alibi), it can easily be disregarded even well          FRE 409
                                                                      21
established ones, and especially easy to fabricate.                      Rationale: payment may be made for humanitarian motives
13
   Definition/More Info: Generally, has three qualities: a)           and not admission of liability
                                                                      22
specificity, b) regularity, and c) degree of regularity                  Rationale: communication is essential to compromises so
14
   similar hypo – exploding can – on page 501                         they should be protected but statements regarding offers to pay
15
   FRE 407                                                            medical expenses are usually incidental [FRE 407 note]

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                                                                                                                     Abhijit Das, 1999
                                                                                                                     Evidence Outline


4. Liability Insurance23 – evidence that one was or                   Rape30
   was not insured against liability is inadmissible to               1. Reputation or opinion of victim’s past sexual
   prove negligence or wrongdoing24 Admissible to                        behavior is not admissible in any civil or criminal
   prove ownership or control and to show bias.                          proceeding (Rape Shield Statute) If the probative
                                                                         value of victim’s sexual behavior or predisposition
                                                                         substantially outweighs the danger to the victim, it
                                                                         may be admissible in a civil case – such as a sexual
                                                                         harassment suit.
Pleas and Related Statements                                          2. Admissible in criminal cases to show:
1. Withdrawn guilty pleas, pleas of nolo contendre,                      a. victim’s past sexual behavior with others to
    offers to plead guilty or evidence of statements to                      prove whether defendant was or was not the
    prosecute in making such pleas are not admissible in                     source of semen or injury31
    any proceeding25                                                     b. victim’s past sexual behavior with defendant to
2. Admissible:                                                               prove consent
    a. where another contemporaneous statement in                        c. when the Constitution requires that evidence be
        plea negotiations has been introduced                                admitted32
    b. in subsequent perjury prosecution, false                          d. Above only admitted on motion with 15 days of
        statement made under oath, on record, and in                         trial and offer of proof at hearing in chambers
        presence of counsel
    c. to impeach inconsistent testimony [US v.                       Similar Sexual Assault Cases33
        Mezzanatto]                                                   The addition of FRE 413-415 completely eviscerates the
                                                                      “no showing of predisposition” for sex offenses.
Documents and Records26                                               1. Sexual Assault - evidence of defendant’s prior
1. Must be authenticated27                                                commission of sexual assault admissible in a
2. Best Evidence Rule28                                                   criminal case to prove any matter to which it is
    a. Original is required only when contents of                         relevant
        writing are at issue                                          2. Similar child molestation cases34 - evidence of
    b. copy admissible if original unavailable29                          defendant’s prior commission of child molestation
3. Not available on collateral matters                                    admissible in a criminal case to prove any matter to
                                                                          which it is relevant
                                                                      3. Similar acts in a civil case35 - evidence of
Types of Evidence: Sexual Assault / Rape
FRE 412 (99), 413 (106)                                                   defendant’s prior commission of sexual assault
                                                                          admissible in a civil case where a claim for relief is
                                                                          based on one’s conduct of sexual abuse or child
                                                                          molestation.
23
   FRE 411
24
   Rationale: knowledge of presence of or lack of liability           Hearsay
insurance would cause juries to decide on improper grounds
and prejudicial effect on defendant – whether defendant had
insurance or not does not tend to prove liability
25
   Rationale: Prejudicial effect of the evidence would
                                                                      30
outweigh the probative value of a withdrawn plea of guilt as an          FRE 412
                                                                      31
admission Furthermore, pleading guilty may very well be a                FRE 412(b)(1)(A)
response to a defendant’s analysis of the alternatives of a           32
                                                                         Examples/Clarification: See Olden v. Kentucky, page
punishment after trial – he’s choosing the better option, not         474, where the court held that it was unconstitutional to
necessarily saying he did it.                                         preclude sexual history evidence of victim’s incestuous
26
   Definition/More Info: Includes a) handwriting, b) voice            relationship with brother which may have been part of a bias
and telephone, c) photographs and X-Rays                              against father for stopping relationship.
27                                                                    33
   FRE 401                                                               FRE 413
28                                                                    34
   FRE 1002                                                              FRE 414
29                                                                    35
   FRE 1003                                                              FRE 415

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                                                                                                                        Abhijit Das, 1999
                                                                                                                        Evidence Outline


                         Admissible                                       should be inadmissible hearsay on the issue of
                        Inadmissible                                      whether the vessel was seaworthy41] and is
                                                                          admissible both to show declarant’s state of mind
Basic Definition
FRE 801 (a-c) (178)                                                       and truth of the matter asserted. Absence of
An out of court36 statement37 offered to prove the truth                  complaints or silence in a situation where such
of the matter asserted is inadmissible.                                   conduct can be interpreted as a statement that
                                                                          “everything’s ok” is admissible since no assertion is
Policy reasons: adverse party is denied the opportunity
    to cross examine, thereby violating the constitutional                intended. [e.g. people who are on a train but say
    right to confront.                                                    nothing about the extreme cold asserted by plaintiff]
                                                                       2. Offered to prove the truth of the matter asserted
     Clark: Only hearsay when offered to prove what the
                                                                          – when a statement is offered for another reason [i.e.
        speaker was primarily trying to affirm or
                                                                          impact on listener] statement is not hearsay and is
        communicate
                                                                          admissible. Examples:
1. Statement – oral or written assertion or non verbal                        a. Verbal Acts – a statement that is itself a
   conduct intended as an assertion [e.g. #1) declarant                           legally operative fact because the fact that
   nods his head up and down, #2) robbery victim                                  those words were said means something
   picks a picture out from a series of mug shots and                             apart from their truth (including an offer to
   hands it to the officer without saying a word is                               contract) [e.g. #1) officers recounting of
   hearsay because it’s the same as saying “that’s the                            prostitute’s offer to have sex not hearsay,
   one”] non-assertive38 conduct is not hearsay [#1)                              because its unimportant whether she
   truck driver lurching forward at light39, #2) Wright                           actually would. #2) statement “you’re a
   v. Doe d. Tatham,40 Baron Parke in invalidating the                            dumb shit-head who’d steal from your own
   admission of letters by persons who presumed they                              mother” is not hearsay when offered as
   were corresponding with a sane man, analogized:                                proof of slander – truth of words
   fact that sea captain loaded his family on a ship                              unimportant to the charge, #3) Husband in
                                                                                  Denver problem42 - lies are performative
36                                                                                words, hence not hearsay]
   Definition/More Info: In-court testimony by a party to a
prior conversation that includes a one-sided conversation
                                                                              b. Verbal Part of Act – words that accompany
intended to parse out the other party’s statement to avoid                        physical acts are not hearsay if they clarify
hearsay is also inadmissible as hearsay, see United States v.                     otherwise ambiguous acts [e.g. bob hands
Check, page 132.                                                                  the mayor money. Unclear if proper or a
37
   Definition/More Info: Must be by a human. “statements”                         bribe. Statement that “this is to repay your
by machines – the reading of a clock or radar gun, which                          loan last year” would be admissible as non-
would be inadmissible if made by a human declarant, are not                       hearsay.]
hearsay. Similarly, objects establishing a link between a person              c. Impact on listener – statement is not
and a place are not usually considered hearsay. [e.g. #1)                         hearsay and is admissible when offered to
Eagle’s Rest Bar Problem, page 141 – matches in pocket
                                                                                  show hearer’s state of mind in sense of
more like mud on shoes than a note that says “I’ve been to that
bar.” – verbal object exception, #2) Luggage with Clarke’s
                                                                                  showing notice or knowledge or motive [e.g.
card – also verbal object, might not be able to use as proof of                   #1) third parties’ statement that floor was
ownership, but definitely a strong connection., #3) Eagle’s                       wet admissible as proof that plaintiff had
Rest Bar Problem #3, page 141, testimony “I pointed out the                       notice of the condition, #2) statement by a
couple to the police in the past” not hearsay because verbal                      person, “I’m from the gas company” you
marker. *** CHECK THIS, #4) US v. Singer, p. 158, address
on envelope not hearsay because not being used to prove that
defendant lived there, only landlord’s behavior]                       41
                                                                          Examples/Clarification: The fact that the sea captain’s
38
   Definition/More Info: The assertion must be intended by             actions are interpreted by an observer as an assertion that the
the person doing the conduct. Common law was different: any            ship is seaworthy would not be enough to make this
statement that could be interpreted as an assertion. See US v.         inadmissible hearsay under the Federal Rules, hence this case
Singer in footnote above.                                              isn’t the modern law on the issue. Under FRE, therefore, the
39
   page 121                                                            letters probably would have been admitted.
40                                                                     42
   England, 1837, page 121.                                               page 160

                                                                   6
                                                                                                                   Abhijit Das, 1999
                                                                                                                   Evidence Outline


              believe that the person is from the gas             Statements Which Aren’t Hearsay45
              company and hence your following him is             FRE 801(d) (179)
              more reasonable.]                                   Not hearsay if:
           d. Declarant’s state of mind – circumstantial          1. Prior Inconsistent46 Statement47 – made under
              evidence of such kind is not hearsay because            oath48, if it was made at a prior proceeding or
              not offered to prove matter asserted but that           deposition, is admissible to both impeach credibility
              declarant believed them to be true or what              and as substantive proof (for its truth).
              the declarant knew [e.g. #1) “I’m the Queen         2. Prior Consistent Statement – whether under oath
              of England” not as proof of its truth but to            or not, offered to rebut an express or implied charge
              prove declarant’s insanity., #2) statement              of recent fabrication or improper influence or
              that “I need to get my brakes fixed”                    motive on part of witness - hence admissible for its
              admissible to show D’s knowledge – not                  truth [Tome v. US,49 statements must be made
              that brakes were indeed bad, #3) Betts v.               before the motive arose to be admissible under
              Betts,43 “he killed my brother and he’ll kill           801(d)(1)(b)]
              mommy too” not hearsay because not                       Clark: prior statement by a witness who is on the
              offered to show that Ray killed her brother                 stand should be admissible on the theory that the
              but to show her mental state and fear at the                person is available for cross now – even regards
              time, #4) Paper-Mache Man44 - a girl’s                      to prior statements. He is opposed to the
              description of the room where she was                       traditional rule which doesn’t allow it.
              previously raped – not hearsay because goes
                                                                  3. Prior Statement of Identification50 – of a person
              to her knowledge. #5) Anna Sofer’s will:
                                                                     after perceiving him [e.g. photo ID or from a lineup
              like a public slap on the face – unlikely to
                                                                     – because and ID closer to the event is presumably
              lie. Clarke: so darn reliable, we consider it
                                                                     more reliable]. This ID is not limited to
              not hearsay]
                                                                     corroborative evidence, but can be used as a primary
      Clark: Every hearsay problem can be broken down                source of ID [State v. Motta51]
         as follows:
         a) declarant did or said X
                                                                  45
         b) therefore Y is true                                      Some consider these to be exceptions, but they are treated
         c) because _____________.                                by FRE as not hearsay at all.
                                                                  46
         * is X isn’t an assertion, no hearsay.                      Definition/More Info: Inconsistency seems to include
         * if X is an assertion, but no the same as Y, also       feigned and possibly truthful claims of failure to recall.
                                                                  47
         probably not hearsay.                                       Definition/More Info: This is different than common law
                                                                  where it was hearsay, though admissible to impeach
                                                                  48
                                                                     Definition/More Info: Threshold for oath seems to be any
         Examples:
                                                                  proceeding with a notary present and under oath in State v.
         a) “I’m alive, I’m alive”                                Smith, 181, but Clark indicates this is not the standard and
         b) he’s alive                                            most courts wouldn’t follow it. Statements made in agency
         c) dead people can’t speak – even if liar                proceedings are admitted, however, under US v. Castro-
                                                                  Ayon, 186.
                                                                  49
         Impeachment:                                                Examples/Clarification: page 193. – there are several
         a) said X                                                different readings of Tome: 1) only non-hearsay use is
         b) therefore a liar                                      statements made before motive, 2) if used for this purpose only
         c) because now says not X                                available if pre-motive and then can be used for truth, and 3)
                                                                  may be admissible on many grounds, but substantive evidence
                                                                  use only in rebuttal and if pre-motive. Casebook likes #3,
         notice:
                                                                  Clark not so much.
         a) said X                                                50
                                                                     This is different than common law where it was hearsay
         b) therefore had notice of something                     51
                                                                     Examples/Clarification: page 206 - Which allowed both ID
         c) should’ve checked based on notice                     and sketch drawn by a sketch artist to be introduced at trial. In
                                                                  US v. Elmy it was held that a third party (like an officer) could
43
     Washington, 1970. page 171.                                  also testify to the ID. Perhaps the same concept as verbal
44
     page 143                                                     marker.

                                                              7
                                                                                                                   Abhijit Das, 1999
                                                                                                                   Evidence Outline


4. Admission by Party Opponent52 – an out of court                             remember, you can’t use the statement to
   statement or conduct by a party to the present                              prove the matter asserted – that driver
   litigation that is used against him. Does not need to                       worked for X if the statement is “I was
   be “against interest” of the person, can be an                              making a delivery for X” – independent
   opinion, and does not need to be a result of personal                       evidence of such employment/agency would
   knowledge. Statements overheard while declarant is                          be required – but see Bourjaily]
   sleeping generally not allowed. [e.g. “the accident                      d. Vicarious Admissions – statements made
   was my fault” – an opinion made by the party                                by another party may be imputed to a party
   opponent, would get in.]                                                    based on certain relationships – also a
        a. Civil pleadings (judicial admissions) –                             modern trend.57 There are limits, however.
            admissions made in civil cases may bind                            [Bruton v. US,58 which held inadmissible
            parties even if later amended.53 Most courts                       “the powerfully incriminating extrajudicial
            provide limited protection for guilty pleas in                     statements of a codefendant, who [stood]
            minor traffic infractions – allowing pleas to                      accused side-by-side with the defendant.”
            avoid the costs of litigation.                                  e. Co-Conspirator Statements59 – Statements
        b. Criminal pleadings – (a) nolo contendre                             made by one conspirator (1-co-venturer) are
            plea is inadmissible because it doesn’t admit                      admissible against other co-conspirators, so
            guilt, but (b) guilty plea is admissible in a                      long as the statement was made during the
            following criminal or civil case involving                         course of the conspiracy (2-pendency)60, and
            the same act.                                                      in furtherance of it (3-furtherance).61
        c. Authorized Statements54 – a statement by                            [note: Bourjaily v. US62 eliminated the
            an agent or person authorized by party-                            independent evidence requirement in
            opponent is admissible as is a statement by                        holding that a trial judge, in making a FRE
            an agent while under the agency                                    104(a) factual determination, may use the
            relationship. Statements made between an                           hearsay testimony itself as evidence of the
            agent and a principal, once held                                   existence of a conspiracy63 without, or in
            inadmissible, are increasingly admitted                            addition to, other independent evidence.64 A
            because they are considered very reliable –
            that view is codified by the FRE. [e.g. #1)
            written and oral statements made by a                   57
                                                                       Definition/More Info: Common law used be that
            wildlife director to the wildlife president             statements themselves needed to be authorized, but FRE seems
            after a wolf bit a child held admissible since          to say that statements made while under an agency relationship
            it was a statement made under the scope of              are generally admissible.
                                                                    58
            the agency – also, first hand knowledge was                page 219
                                                                    59
            not necessary when used against the party                  Rationale: FRE 801(d)(2)(E) – Consider the rationale –
            that made the statement, see Mahlandt v.                conspirator comments such as those admitted can be
                                                                    considered the verbal acts of a conspiracy.
            Wild Canid Survival & Research                          60
                                                                       Definition/More Info: A statement made after a
            Center55, #2) Errand for Boss problem56 -               conspiracy has ended, is admissible only against the declarant
                                                                    himself. What if the conspiracy included plans for after they
52
   Examples/Clarification: Treated differently because a)           got caught? Courts usually don’t accept this, see Krulewitch
unlike other exceptions, there’s no special reason to think         v. US, p. 261.
                                                                    61
these comments are more reliable, and b) arguably this isn’t           Examples/Clarification: Does not require the declarant to
hearsay – merely part of the litigation.                            be absent – because the context of the conspiracy cannot be
53
   This excludes pleadings in the alternative: “even if I was       replicated, see US v. Inadi, page 248.
                                                                    62
negligent, I am still not …” may not be used as evidence of            page 248
                                                                    63
negligence.                                                            under the POE standard
54                                                                  64
   FRE 801(d)(2)(C)-(E) The statement may be used against              Examples/Clarification: This rule effectively overruled US
both in suits against the individual or the party under whose       v. Nixon and Glasser v. US, both pre-rules cases. The dissent
authority the statement was made.                                   argued that the independent evidence rule was essential to
55
   Page 240                                                         safeguard the reliability of these statements and 104(a) could
56
   page 245                                                         be read as consistent with FRE801(d)(2)(E)’.

                                                                8
                                                                                                                    Abhijit Das, 1999
                                                                                                                    Evidence Outline


              circularity problem exists, but so does a               4. Inaccurate Perception – because of poor
              coincidence problem.65]                                    perceptive ability [i.e. eyesight or hearing],
         f.   Adoptive Admissions66 – cases where A                      declarant’s statement was simply incorrect though
              explicitly or implicitly adopts B’s statement              believed by declarant
              as correct are admissible.67 [e.g. #1) Q:               5. Mistake in transmittal – mistake made by person
              “Were you speeding?” A: “Yes” – adopts                     simply repeating the statements of another
              the question as part of the answer as both
              being declarant’s statement; #2) US v.
                                                                      Benefits of Testimony; Contrast with Hearsay
              Hoosier68, silence in the face of an
                                                                      1. Oath – fear of perjury and solemnity of occasion
              inculpatory statement where a denial is
                                                                         increases truth potential. Hearsay = no oath.
              expected from an innocent man, is
                                                                      2. Demeanor – Jurors can judge demeanor of witness.
              effectively an adoption of the statement and
                                                                         Hearsay = no such opportunity.
              admissible69 #3) consider insurance cases –
                                                                      3. Context – Statements in the contexts of a larger
              cases go both ways – whether death cert. is
                                                                         story that jurors can evaluate for sincerity and
              an admission by beneficiary for purposes of
                                                                         accuracy. Hearsay = no such context.
              cause of death]
                                                                      4. Cross Examination – Subject to adversary seeking
                                                                         to uncover truth. Hearsay = no such opportunity.
Dangers of Hearsay
1. Ambiguity – what was asserted wasn’t really what
   declarant meant to say due to language difficulties
   or similar impediment
2. Insincerity – knowing statement intentionally
   misleading for ulterior motive                                                             Admissible
3. Incorrect Memory – honest belief but faulty                                               Inadmissible
   memory or confusion with another similar fact or
                                                                      Hearsay Exceptions (Declarant  Unavailable)
   issue                                                              FRE 803 (191)
                                                                      1. Present Sense Impression – statement describing
                                                                         or explaining an event while declarant was
65
   Examples/Clarification: The judge could let the testimony             perceiving the event or immediately thereafter
in based on his FRE104 determination that a conspiracy                   a. does not have to be startling or exciting
existed and the statement isn’t hearsay, while the jury could            b. includes cases where a witness makes an
find that no hearsay existed, but rather some negligence. How                 accident or crime report shortly after it
about treating the evidence under FRE104(b) and let the jury             c. safeguard – statement is free from memory
decide if its relevant?                                                       deficits and there is no time for calculated
66
   FRE 801(d)(2)(B)                                                           reflections
67
   Examples/Clarification: Generally, party needs to have a)          2. Excited Utterance70 – statement made about a
heard the statement, b) understood it, c) not have been under
                                                                         startling event while under the stress of excitement
confusion or duress, d) been called upon to deny the statement
if untrue
                                                                         is admissible71, but the event must produce shock or
68
   page 227                                                              excitement and the scope must be relate to the event.
69
   Examples/Clarification: This is not the case where                    [see US v. Iron Shell, below – some lapse of time
declarant was in custody and had been told that anything he              (45 minutes) and response to inquiry (“what
said could be used against him – there, silence is                       happened?”) doesn’t necessarily destroy exception]
understandable – see Doyle v. Ohio, page 230, because that
would invalidate Miranda. However, pre-arrest custodial
                                                                      70
questioning is different under Jenkins v. Anderson, page 234.           FRE 803(2)
Where police aren’t present, and statements are made that an          71
                                                                        Rationale: Based on the theory that a person’s reflective
innocent person is expected to rebut, the adoption by silence         faculties are stilled and memory is not a problem. Generally
theory applies per US v. Alker. My thoughts: I wonder how             limited to a half-hour from the occurrence as a limit to how
sensible this policy is – there are bragging rights that such a       long you can wait – some exceptions for medical necessity or
statement might carry that might question its credibility.            coma, etc.

                                                                  9
                                                                                                                        Abhijit Das, 1999
                                                                                                                        Evidence Outline


     Clark: maybe this is a case where a hard case made                        Hillmon78 - letters stating intention to travel to
        bad law – stretched too far, perhaps. Also, think                      Colorado admissible as proof of intention to go,
        about the wife abuser situation – wife: “he’s                          because the letters increased the probability that
        going to kill me” based on years of abuse – not                        he did in fact go to Colorado; #2) where
        the first time you’ve thought about it – hence no                      declarant states an intent and is the murder
        guarantee of non-reflective response72                                 victim, like US v. Pheaster79, that declarant’s
   a. no requirement of unavailability, competency,                            stated intent to meet defendant80 would be
        or identification of the declarant                                     admissible under common law to support
3. Then Existing Mental or Physical Condition73–                               inference that defendant was there81; #3) even
   statement of declarant’s then existing state of mind,                       where he statement includes some backward
   emotion, sensation, or physical condition (intent,                          looking statement (“I just got a call from D
   plan, motive, pain, health, etc.) may be used to                            asking for money which I intend to send”), if the
   prove existence of that condition or to prove                               thrust of the statement is forward looking, the
   probable future conduct consistent with the intent                          entire statement will be admitted, under US v.
   [see Nuttall v. Reading Co.74]                                              Annunziato82]
   a. statement of past memory or belief to prove                         e. statements as to past state of mind are
        the fact remember is not admissible unless                             generally not admissible. [e.g. #1) “I didn’t
        related to declarant’s will.                                           mean to kill him” in a murder case; #2) for
   b. Present physical condition – when one’s                                  present statements based on past actions, like
        physical condition at certain time is in issue,                        Shepard v. US83, court will not admit
        statements made at that time are admissible to                         statements such as “Dr. Shepard has poisoned
        prove that condition. [e.g. plaintiff’s statement                      me” because it was backward facing, not
        at accident that he is in pain are admissible to                       forward facing like Pheaster or Hillmon]
        prove he was in fact in pain75 but a person’s                          exception for cases dealing with the execution
        statement that “my leg must be broken” would                           or revocation of wills where statements by
        not be admissible for uninformed opinion                               testator before and after execution of will are
        because of the opinion stated]                                         admissible
   c. Statement of past conditions – generally                         4. Statement for Medical Diagnosis or Treatment –
        excluded [e.g. last friday I was in pain76]                       statements made to medical personnel which are
   d. statements of present intent to prove                               reasonably pertinent to diagnosis or treatment are
        subsequent behavior are admissible [e.g. #1) “I                   admissible84
        intend to go to X admissible to show probability                  a. including both past and present statements
        he went there77” see Mutual Life Ins. Co. v.                      b. FRE allows statements of the cause or source of
                                                                               the condition closely related to medical
                                                                               diagnosis and treatment to be admitted even by a
72
   Examples/Clarification: statements that are clearly self
serving, such as “I carefully stopped at the sign” may be
                                                                       78
suspect.                                                                  page 282
73                                                                     79
   FRE 808(3)                                                             Examples/Clarification: page 286 – see also People v.
74
   page 264, husband’s statement that he was feeling ill               Alcade, p. 288 – “I’m going out with Frank tonight”
admissible to prove that point                                         admissible as evidence that see did so in a murder trial against
75
   Rationale: Perhaps based on the theory that statements              Frank.
                                                                       80
contemporaneous with symptoms are more reliable than                      Examples/Clarification: especially forceful if there is
present testimony based on recollection                                independent evidence that declarant actually did the things he
76
   Rationale: on the theory that there’s no way to cross               claimed – even if independent of the other named person
                                                                       81
examine and greater likelihood of falsification                           FRE803(3) may limit this doctrine, though – see House
77
   Examples/Clarification: modern view also allows such a              Judiciary notes
                                                                       82
statement, if including the intent to accompany another person,           page 293
                                                                       83
to support the inference that such action was taken with the              page 292
                                                                       84
other person a that the other person did that thing with                  FRE 803(4) – based on the theory that people don’t usually
declarant                                                              lie about symptoms to their doctors

                                                                  10
                                                                                                                        Abhijit Das, 1999
                                                                                                                        Evidence Outline


         third person.85 [see US v. Iron Shell86 in which                the regular practice to make the record, is
         a little girl told her doctor about a man trying to             admissible.95 Testimony must be:
         put something in her vagina – because the                       a. provided by someone who can provide a
         statements related to the doctor’s inquiry as to                     foundation for the records such as a
         what happened so that he could treat her                             “custodian” of the records.
         condition – not an inquiry into who did it, etc.]               b. free from self-serving influences (such as the
         Factual statements of other circumstances                            accident report written by one party after an
         surrounding the event are inadmissible.87                            accident) [like Palmer v. Hoffman96 where the
                                                                              court held inadmissible a railroad’s accident
                                                                              report because of lack of regularity – most
                                                                              courts would probably now hold it inadmissible
                                                                              for self serving reasons]
                                                                         c. for medical records: statement made by a
                                                                              hospital doctor or administrator. a statement
                                                                              made to a doctor by a patient97 cannot be used
                                                                              later to prove the matter asserted by the patient.
                                                                              [see Petrocelli v. Gallison98]
5. Recorded Recollection88 – memorandum or record                     7. Absence of Entry in Business Records99 –
   on matter about which witness once had first hand                     absences may usually be admissible since the failure
   knowledge89, but now has insufficient recollection                    to record a transaction is rarely an assertion.
   may be read into evidence.90 Document must have                       Generally, the same requirements apply as to the
   been prepared or adopted by the witness, and the                      regularity of the records.
   witness must have vouched for its accuracy at the                  8. Public Records & Reports100- records, statements
   time it was recorded.91 [See Ohio v. Scott92]                         and reports, prepared by a public official are
   a. this is different than FRE 612 “Present                            admissible101 if:
       Recollection Refreshed” – because, there, the                     a. prepared by public employee within scope of
       only thing going into the record is the testimony,                     duty
       not the device used to refresh the witness                        b. made at or near the time of the event
       testimony.                                                        c. police reports102 inadmissible in criminal cases
6. Business Records Exception93 – a writing, record
   or memorandum of any act, transaction, occurrence,                 personal knowledge of the matter recorded. “business” can
   if made in the regular course of business94 and it was             mean association, or institution of many kinds.
                                                                      95
                                                                         Rationale: business incentive to keep accurate records – no
                                                                      motivation to file. it would also be too cumbersome to bring in
                                                                      everybody that may have contributed to the records.
85                                                                    96
   Definition/More Info: if the person whose condition is                page 325
                                                                      97
being discussed is unconscious, for example – often called the           Examples/Clarification: courts are also reluctant to admit
“Good Samaritan” doctrine                                             opinions made by doctors in such reports that doctors could
86
   page 269 and 298                                                   otherwise make in live testimony
87                                                                    98
   Examples/Clarification: so in the Iron Shell example, a               page 316
                                                                      99
statement about who raped the girl to the doctor may not be              FRE 803(7)
                                                                      100
admissible.                                                               Definition/More Info: FRE 803(8) various parts: (a)
88
   FRE 803(5)                                                         activities of the office, (b) matters observed by public officials
89
   the knowledge also had to have been made “fresh”                   and (c) factual findings from official investigations unless
90
   Rationale: theory being that statements made fresh in mind         untrustworthy
                                                                      101
are more reliable than statements made on the stand.                      Examples/Clarification: as opposed to the business
91
   the person must be available to testify to having made the         records exception above, public records are self-authenticating
recording.                                                            if certification procedures are used.
92                                                                    102
   page 306                                                               Examples/Clarification: statements excluded are those
93
   FRE 803(6)                                                         made by police and other law enforcement personnel. In US v.
94
   Examples/Clarification: and in a timely manner, near the           Oates, a full-time chemist for the Customs Service was held to
point in time when the event occurred by someone with                 fall under the category of “other law enforcement” personnel.

                                                                 11
                                                                    Abhijit Das, 1999
                                                                    Evidence Outline


    d. in civil cases, factual findings (including
         opinions and conclusions) are admissible.
    e. not untrustworthy [see Baker v. Elcona Homes
         Corp.103 – where the factors for trustworthiness
         were applied: 1. timeliness, 2. skill or
         experience, 3. whether a hearing was held, and
         4. motivation problems (Palmer v. Hoffman)
         and the court determined that the report was
         trustworthy]
9. Treatises104 - in direct testimony, parts of written
treatises can be read into testimony, though they may
not be included as exhibits. in cross examination,
treatises may be used against an expert even if the expert
refuses to accept the authoritativeness of the treatise.




The court also held that such material is not to be admitted
under any other evidence rules and was absolutely
inadmissible.
103
    page 328
104
    FRE 803(18)

                                                               12
                                                                                                                         Abhijit Das, 1999
                                                                                                                         Evidence Outline


                         Admissible                                         a. party against whom testimony is now being
                        Inadmissible                                            offered was a party to former suit and had
                                                                                opportunity and some motive111 to cross
Policy – for Exceptions (Declarant = Unavailable)
                                                                                examine112 as adverse party in present
A group of hearsay exceptions are available only when a
                                                                                proceeding, or
declarant is unavailable for two primary reasons:
                                                                            b. in a civil action113, a predecessor114 with similar
1. Trustworthiness – special guarantees which make
                                                                                interests had an opportunity to cross examine
    up for the inability to cross examine
                                                                         2. Dying Declarations115 – in a homicide
2. Necessity – need for hearsay evidence, usually
                                                                            prosecution116, or in a civil action, a statement made
    caused by the unavailability of the declarant
                                                                            by unavailable declarant while believing his death is
                                                                            imminent117 that concerns the cause or
“Unavailable” when the declarant:
                                                                            circumstances of what he believed to be his
1. Exempt due to privilege
2. refuses to testify
3. testifies to lack of memory of subject matter of
   statement105
4. physically unavailable (death, physical or mental                     110
                                                                             Examples/Clarification: the former testimony must have
   illness106)                                                           been given under oath or sworn affirmation and subject to
5. is absent107 or cannot be subpoenaed (out of                          cross examination – prior trial, preliminary hearing, grand jury
   country)108                                                           investigation (is used by the defense only – never by
                                                                         prosecution), suppression hearing or deposition. affidavits and
                                                                         statements made to police are not admissible.
Hearsay Exceptions (Declarant = Unavailable)                             111
                                                                             Examples/Clarification: motive can be different, if, for
FRE 804(b) (221)                                                         example, the amounts in question are very different – prior suit
1. Former testimony109 – by a now unavailable                            was small, the second much larger. The Supreme Court seems
   witness at another hearing or in deposition110 is                     to construe this requirement strictly for defense requests. See
   admissible in a subsequent trial if:                                  US v. Salerno, 368, where the Court held that unless the
                                                                         defense could argue that the prosecution had a motive when it
                                                                         cross-examined individuals for grand jury testimony, it could
                                                                         not introduce the exculpatory evidence on lack of similar
105
    Examples/Clarification: see US v. DiCaro, page 347,                  motive grounds. The witnesses had not been offered “use
where a witness was held to be “subject to cross examination”            immunity” by the government for their testimony, and were
for FRE 801(d)(1)(A) – prior inconsistent testimony –                    thus unavailable to testify.
                                                                         112
purposes but unavailable for 804(a)(3) purposes because he                   Examples/Clarification: there is no requirement that
remembered making the statement but not the underlying                   actual cross examination have occurred, though if the
events.                                                                  defendant had no counsel, it may be judged that he had no
106
    a minor illness will not do – for which an adjournment               reasonable opportunity to cross examine.
                                                                         113
would be more appropriate                                                    this is strictly civil – no criminal cases allowed
107                                                                      114
    Examples/Clarification: for criminal cases, where                        see Lloyd v. American Export Lines, Inc., page 293,
confrontation clause issues arise, the state must show that              where testimony from a coast guard hearing regarding a fight
attendance could not be procured by other means. See Barber              two ship crewmembers had was held admissible in a
v. Page, page 352, which held that in a state prosecution,               subsequent suit brought by one of the combatants against the
where a prisoner was in a federal prison in another state he             shipping company. the “nucleus of operative facts,” the
wasn’t unavailable because procedures where available which              conduct of the combatants, was the same and “there was a
would have allowed him to testify. But see Mancusi v.                    sufficient community of interest shared by the Coast Guard in
Stubbs, page 356, which held witness was unavailable where               its hearing and Alvarez in the subsequent civil trial” – they
it found he was living in Sweden and the prosecutor made no              both sought to establish Lloyd’s wrongdoing. this holding,
effort to procure his attendance.                                        followed by many courts, minimizes the importance of the
108
    Examples/Clarification: the federal rules are stricter than          predecessor in interest requirement.
                                                                         115
state rules when a witness is absent. the person seeking to offer            FRE 804(b)(2)
                                                                         116
the testimony must show that the declarant cannot be                         unavailable in a non-homicide cases, though under common
persuaded to appear and that efforts to take a deposition were           law, it wasn’t available for civil cases either.
                                                                         117
unsuccessful.                                                                this may be shown through statements made by the
109
    FRE 804(b)(1)                                                        declarant, or his knowledge of the severity of his wounds

                                                                    13
                                                                                                                           Abhijit Das, 1999
                                                                                                                           Evidence Outline


   impending death118 Under common law, death was                              clearly indicate the trustworthiness of the
   required – not under FRE, where declarant may be                            statement.126
   unavailable on other grounds.
3. Statements Against Interest119 - statements which,
   when made,120 was against declarant’s121 pecuniary                    Witnesses
   or proprietary interest122 or tended to subject
   declarant to civil or criminal liability such that a                  Competency and Personal Knowledge
   reasonable person would not have made it unless he                    FRE 601 (119), 602 (121), 603 (122)
   believed it to be true.123 However, statements which
   subject the declarant to criminal liability124 and                    Competency Assumed127
   are offered to exculpate the accused are not                          Every witness is presumed competent to testify. The
   admissible125 unless corroborating circumstances                      district judge does retain the power to order a mental
                                                                         evaluation.128 Children are also able to testify.129 Three
                                                                         reasons why they may be incompetent:
118
    the rationale for this rule being more religious than legal –                  1. lack of personal knowledge
the “dying declarant, knowing he is about to die, would be                         2. failure/refusal to take oath130
unwilling to go to his Maker with a lie on his lips.” Does this                    3. lack of capacity to recall
rationale stand up to modern views of hell, etc? are you much
more likely to make such a statement in the hopes of getting
revenge, or self-exoneration than you are to speak truthfully
                                                                         Personal Knowledge Required131
for fear of god?                                                         An ordinary, non-expert witness, must limit his
119
    FRE 804(b)(3)                                                        testimony to facts of which he has first-hand
120
    on the theory that if the person doesn’t know its against            knowledge.132 Difference from hearsay: if it appears on
interest, then the reliability factor goes down                          its face that the testimony is a repetition of what
121
    unlike an admission, the declarant whose statement is                someone else said, then its hearsay. If the witness claims
admitted need not be a party to the litigation.                          to have personal knowledge but contexts supports the
122
    declarant must have had actual knowledge of the facts and            contention that he couldn’t have seen it, then it is void
have known that the statement was against interest                       for lack of personal knowledge.
123
    Also incorporates one-way interests: a tax return to prove
that the person made at least that much – theory that you
would never overstate your income: where the interest of the             Oath133
declarant is to aim high, use the number as the maximum.                 What does the requirement do?
Conversely, where the interest is to aim low, use the number as
                                                                         126
a minimum. Courts are mixed on the application of conclusory                 Rationale: we don’t want people confessing to get others
remarks, such as “it wasn’t your fault” right after an accident.         off the hook. However, with corroboration, the situation is
See Carpenter v. Davis, where the court allowed in a portion             different, where a reasonable person can infer from the
of the statement, “you pulled right in front of me” – “I know”           corroborating evidence that the declarant, not the defendant
but it excluded, “it’s not your fault.” Perhaps this should have         could have committed the crime.
been attempted as a party admission – which would allowed                127
                                                                             FRE 601
                                                                         128
even the opinion portion (though the court ruled the wife                    page 529
wasn’t a party to husband’s suit).                                       129
                                                                             See Ricketts v. Delaware, page 532, where a six year old
124
    Definition/More Info: but where a statement is part                  was allowed to testify after a statement to the effect that “lies
against a declarant’s interest, but part neutral or self serving,        are bad” and a promise to tell the truth. Sufficient under 601
the collateral statements are simply not admissible under                for competency and 603 for oath. Some states do not presume
FRE804(b)(3) according to the Supreme Court in Williamson                competency for children.
                                                                         130
v. U.S., page 377. the fact that a person is making a partly                 See United States v. Fowler, page 530, where defendant
inculpatory statement doesn’t increase the reliability of the            refused to take the oath “I state that I will tell the truth in my
non-self inculpatory portion. (in fact, there’s a fear that the          testimony” but offered alternatives such as “I am a truthful
declarant may be trying to curry favor with the authorities by           man” – held insufficient under FRE 603.
                                                                         131
“bringing in the big fish” etc.)                                             FRE 602
125
    under the traditional approach, they weren’t admissible –            132
                                                                             See Mahlandt which held that first-hand knowledge is not
see Justice Holmes’ dissent in Donnelly v. US, page 376,                 required when a statement is to be used against the party that
protesting the reason behind excluding this evidence while               made the statement.
                                                                         133
allowing dying declarations.                                                 FRE 603

                                                                    14
                                                                                                                      Abhijit Das, 1999
                                                                                                                      Evidence Outline


         1. impress upon witness solemnity of duty
         2. ensure witness is paying attention and will
                                                                       Hypnosis in the Courtroom
            articulate clearly
                                                                       1. Testimony by witnesses after hypnotic
         3. awaken conscience – express willingness to                    refreshment – most courts will exclude such
            pay for lie                                                   statements because of lack of safeguards though
                                                                          some courts will allow such testimony after
Dead Man Statutes134                                                      stringent safeguards including videotaping and
A survivor from common-law, dead man’s statutes                           documentation.
attempt to “equalize the opportunities of proof in                     2. Defendant has a right to testify, even after
litigation involving a decedent and survivor where the                    hypnosis – whatever burdens courts place on third
subject matter of the suit is a transaction or event that                 party testimony, the Supreme Court has held, in
occurred when both were living.”
                                                                          Rock v. Arkansas,139 that though states have some
1. Extreme – prevent the survivor from testifying at all                  right to guard against unreliable hypnotized
     about the transaction between him and the decedent.                  testimony, a per se ban on all hypnotically refreshed
     Oral agreement, for example, will not be permissible                 testimony is unconstitutional. Especially where post-
     without evidence beyond survivor’s testimony to its
                                                                          hypnosis testimony was corroborated, it should
     existence
                                                                          have been admissible. Procedural safeguards which
2. More liberal – less draconian versions allow the                       should be employed:
     survivor to testify but equalize the advantage by
                                                                          a. hypnosis only by psychologist or psychiatrist
     allowing the decedent’s estate to introduce hearsay
                                                                          b. neutral setting
     statements by the decedent.
                                                                          c. videotaped or recorded
3. Federal Rules – there is no federal Dead Man’s
     Statute, but a court sitting in diversity must apply              Opinion Testimony and Scientific Evidence
     the state statute under FRE 601.                                  FRE 701 (161), 702(162), 704 (165), 705 (167)
                                                                       Lay Witnesses140
Testimony by Jurors135                                                 1. Generally inadmissible
1. Testimony Prohibited before the same panel on                       2. Admissible as to common sense impression such as
    which she sits                                                        appearance, state of emotion, intoxication, speed of
2. Pre-Verdict Questioning136 - regarding failure to                      vehicle, and testimony helpful in resolving issues141
    follow instructions (reading a newspaper) is allowed               Expert Witnesses142
    while the trial is in progress                                     1. Generally admissible where scientific, technical, or
3. Post-Verdict Questioning137 – jurors can be asked                      other specialized knowledge will help the trier of
    questions about their jury service – not about                        fact to: understand the evidence or determine a fact
    deliberations – but about whether improper evidence                   in issue. Does not necessarily have to testify to
    (extraneous prejudicial information) was available                    something beyond jury’s knowledge – just has to
    a. key: external/internal distinction                                 provide a refined understanding. Judge has ultimate
    b. Drug and alcohol use by the jury while hearing                     discretion.143
        testimony and under deliberation is internal, and              2. Expert may be qualified by:
        hence not subject to questioning.138                              a. knowledge
                                                                          b. skill
134
    page 543
135                                                                    139
    FRE 606                                                                page 535 – defendant shot her husband in the chest. She
136
    FRE 606(a)                                                         cannot remember all of the events. After hypnosis, defendant
137
    FRE 606(b)                                                         remembered that her finger was not on the trigger but rather
138
    see Tanner v. United States, page 553, which involved an           that the gun fired when her husband grabbed her arm. A gun
affidavit from a juror regarding such abuses during the trial.         expert corroborated with testimony that the design of the gun
The Supreme Court held that the affidavit was not a valid basis        was defective allowing such accidental shooting.
                                                                       140
for a post-verdict evidentiary hearing into the validity of the            FRE 701
                                                                       141
verdict. see also Advisory Committee Notes, page 126,                      see examples on page 690
                                                                       142
talking about reasons for questioning jurors – almost every                FRE 702
                                                                       143
“internal” factor is out.                                                  FRE 104(a)

                                                                  15
                                                                                                                   Abhijit Das, 1999
                                                                                                                   Evidence Outline


      c. experience                                                   h. credentials of the scientists
      d. training                                                  3. Appellate Daubert Standard – under GE v.
      e. education                                                    Joiner,147 the appellate standard for Daubert is
      Clark: remember, an expert needs no formal                      abuse of discretion by the trial judge as gatekeeper –
         education. could be tons of experience a.k.a. My             not an overly stringent review.148
         Cousin Vinny – Marissa’s automobile testimony                   Clark: Though Daubert appears at first to liberalize
                                   144
3. Bases of Expert Testimony: The facts or data                             admissibility, it is enormously anti-plaintiff.
    upon which an expert bases an opinion may be those                      Instead of a head count, the judge now has any
    perceived by or made known to the expert and need                       factors to consider – many more places along the
    not be admissible in evidence if: they are of a type                    way to eliminate new emerging sciences. It has
    reasonably relied upon by experts in the particular                     been especially difficult to get in toxic tort cases
    field.145 Hence, there is a body of evidence that an                    because of expert testimony inadmissibility.
    expert can rely upon but the trier may not.                    4. Syndrome evidence: some courts apply Daubert to
4. Opinion on ultimate issue is admissible, including                 syndrome evidence – but most fail the test. The
    defendant’s state of mind at time of trial                        names of syndromes, like Battered Wife Syndrome,
    a. exception: opinion on criminal defendant’s state               are not usually allowed so as to prevent undue
         of mind at time of crime                                     prejudice.149
5. Opinion admissible without first testifying to                  5. DNA Evidence – satisfies the Daubert standard
    underlying facts or data unless required by court                 under State v. Moore.150 What should trial judges
Scientific Evidence                                                   do with the application of an otherwise accepted
1. The Frye Standard – under Frye, only “generally                    method in a particular case? should the judge
    accepted” scientific evidence could be admitted.                  decide, or is that a question of fact for the jury?
2. The Daubert Standard – in rejecting Frye, the
    Supreme Court in Daubert v. Merrell Dow
                                                                   Impeachment of Witnesses
    Pharmaceuticals146 established a new standard                  FRE 607 (129), 608 (130), 609 (134), 613 (156), 801
    focussed upon “reliability.” Under the new standard,               (178)
    in order to be admissible, scientific evidence must:           Impeaching Credibility
    a. be derived by scientific method and be valid                There are six ways to impeach the credibility of a
    b. fit at least one issue in the case, and therefore be        witness:
         relevant to the task at hand.                             1. Prior Inconsistent Statement151
    c. the above determinations are for the court under
         FRE 104(a)
    In determining whether the evidence qualifies as
    scientific, the court will consider the following
                                                                   147
    factors:                                                           supplement page 397
                                                                   148
    a. whether methodology can be applied to the facts                 Examples/Clarification: Can be read to emphasize the anti-
         in this case                                              admissibility bent of Daubert, because decisions to exclude
    b. whether the method has been and can be tested               scientific evidence are not subject to a searching review. my
    c. whether the method has been subject to peer                 opinion: Is there any reason to believe that trial judges, and
         review and is published                                   more than appellate courts are better prepared to answer these
                                                                   questions? perhaps we just want to draw a line and have it
    d. rate of error for the method
                                                                   done with earlier.
    e. whether method was designed independent of                  149
                                                                       Rationale: syndrome evidence is allowed into the
         the litigation                                            courtroom to equalize misconceptions about abusive
    f. operational standards regarding the method                  situations. The jury'’ background information should be
    g. general acceptance                                          corrected, or they might let incorrect assumptions distort their
                                                                   evaluations of the facts.
                                                                   150
                                                                       page 741
144                                                                151
    FRE 703                                                            FRE 613 – note that this really applies to non-parties only
145
    see examples on page 698                                       since a prior inconsistent statement is substantively admissible
146
    page 717                                                       as an admission (does not get tossed as hearsay)

                                                              16
                                                                                                                         Abhijit Das, 1999
                                                                                                                         Evidence Outline


   a. witness must first have opportunity to explain or                          proof of personal adoption is certainly probative
       deny only with extrinsic impeachment (laying                              of bias, according to the court.]
       the foundation)152                                                        i. court may limit how much you can say
   b. extrinsic evidence regarding material153 issues                                about the group to limit prejudice (i.e. not
       only; no extrinsic impeachment on collateral                                  allowing the name “Aryan Brotherhood)
       issues (can highlight the inconsistency, but can’t                   b. paid witnesses: clearly a proper issue to bring
       introduce other evidence to hammer it home)                               up. [e.g. “Will you tell us, sir, what hourly rate
   c. may not be used as a subterfuge to get                                     you charge for testifying in cases such as this
       otherwise inadmissible testimony in – under                               one?”]
       FRE 607 – by impeaching your own witness.                            c. confrontation clause – courts have held that
       [e.g. #1) you can’t ask a witness a question you                          constitutional issues (due process) may arise
       know he will get wrong in order to bring in the                           upon denial of a defendant’s right to impeach
       prior statement; #2) it is OK, however, if you                            the credibility of a witness [see Olden v.
       call the witness in good faith not knowing what                           Kentucky and Davis v. Alaska]158
       he will say – see Webster154]                                     3. Defect in Sensory of Mental Capacity – Attacking
   d. May include statements obtained in violation                          party may try to demonstrate that witness was under
       of Miranda unless under coercion or                                  the influence of drugs or alcohol,159 or that witness
       involuntary. [see Harris v. New York155 for one                      is mentally impaired.160 Proof of mental illness can
       that was admissible, or Portash 156 for an                           be made through the introduction of medical records
       example of where statements under a grant of                         and psychiatric testimony.161
       immunity are not useable to impeach.] Possible                    4. Character for Untruthfulness - in addition to
       to avoid the prior statement if that portion of                      cross, may be introduced on direct as well under
       your testimony is in accordance with the                             607.
       defective confession.                                                a) specific instances of conduct (which did not
2. Bias evidence is always allowed and is never                                  result in conviction)162 – allowed at the
   collateral. This can take the form of a witness’                              discretion of the court if probative of
   friendly feeling to one of the parties, hostility to                          truthfulness.163 No extrinsic evidence allowed.
   one of the parties, or self interest in the outcome.                          Hence, if you ask “Isn’t it true that you…?” and
   a. membership in group: bias may be shown by                                  the witness denies it, you’re stuck.
       demonstrating that the witness belongs to a                          b) instances of crimes involving dishonesty or
       particular group and subscribes to its beliefs.                           false statement 164 Trial judges usually lack
       Extrinsic evidence may be used only if bias is                            discretion to disallow this type of evidence.
       denied. [see United States v. Abel,157 Supreme
       Court held that: prosecution entitled to show
       that a defense witness was a member of a secret                   158
                                                                             page 585
       prison organization which had a creed requiring                   159
                                                                             though perhaps most courts may not allow proof of habitual
       members to lie to protect each other. Common                      impairment or alcoholism as proof of impairment at the
       membership in an organization, even absent                        particular time.
                                                                         160
                                                                             Cross examination should be aimed at illness within the
                                                                         time period the witness is testifying about and should not be
                                                                         aimed to stigmatize the witness.
152                                                                      161
    FRE 613(b)                                                               See United States v. Lopez, page 597, for information
153
    Examples/Clarification: For example, if the testimony                regarding trial court discretion in requiring a witness to
varies only slightly from the record, or the fact is a minor one,        undergo psychiatric or mental evaluation.
                                                                         162
extrinsic evidence is not allowed. Keep in mind, however,                    FRE 608(b)
                                                                         163
some evidence that may be excluded here could be introduced                  Examples/Clarification: Usually must usually directly
as bias evidence, etc.                                                   involve truthfulness – theft, for example, is debatable.
154
    page 636                                                             Questions about drug use, violence, or sexual relationships are
155
    page 639                                                             disapproved, though potentially useful to show bias. Some
156
    page 646                                                             jurisdictions do allow bad conduct unrelated to truthfulness.
157                                                                      164
    page 586                                                                 FRE 609(a)(2)

                                                                    17
                                                                                                                     Abhijit Das, 1999
                                                                                                                     Evidence Outline


      c) other crimes by a witness other than the                   5. Opinion or Reputation – witness credibility may
         accused165 – if punishable by death or 1+ year, if            be attacked or supported based on reputation or
         it passes muster under 403 (prejudicial impact                opinion evidence given by a character witness.
         doesn’t outweigh probative value)                             Testimony must refer only to character for
              i. if the witness has lied about the prior               truthfulness or untruthfulness and must be preceded
                   conviction in the past, you may be able             by a foundation – asserting personal knowledge of
                   to get the conviction in under 608, even            the witness or his community. Evidence of
                   though it would not have been                       truthfulness may be introduced only if original
                   admissible under 609                                witness’ truthfulness attacked and may include
      d) defendant’s prior conviction – evidence of a                  specific instances of truthfulness.169
         defendant’s prior conviction may be introduced             6. Contradicting Testimony – only evidence that has
         to impeach if the probative value outweighs (not              relevance independent of its contradicting effect
         substantially) prejudicial impact to defendant.               gets in,170 either through cross examination or
         Factors employed include:                                     extrinsic evidence. [FRE 608(b) does not apply to
              i. nature of conviction                                  this category – only covers untruthful disposition
              ii. recency or remoteness                                impeachment, However, 608 and rape shield laws
              iii. whether similar to charged offense                  both trump the general right to contradict]
              iv. whether defendant’s record is clean                  a. Counterproof that contradicts but also proves
              v. importance of credibility issues                           a substantive point admissible
              vi. importance of getting defendant’s                    b. Counterproof that tends to prove another
                   testimony                                                impeaching point admissible171
      e) Inadmissible convictions166                                   c. Counterproof which only contradicts is usually
         i. more than 10 years elapsed – unless by                          excluded as collateral
                   special notice of intent to use and the             d. prosecution may ask questions on direct, the
                   interests of justice require its use                     cross-examination of which can open up the
         ii. juvenile adjudications                                         introduction of otherwise inadmissible evidence
         iii. witness has been pardoned and no                              to impeach. [see US v. Havens172 where
              subsequent conviction in excess of one year                   illegally seized evidence that had been excluded
      f) Judge’s Evaluation – a judge may inquire into                      as inadmissible was held admissible for use by
         the factual background leading to the prior                        the prosecutor in rebuttal to answers in response
         conviction, but need not do so in determining                      to questions asked by the prosecutor during his
         admissibility. [See Lipscomb167]                                   cross examination – a.k.a. opening his own
      g) Preserving appeal – to raise and reserve for                       door]
         review the claim of improper impeachment, the              7. Forbidden Attacks: impeachment based on
         defendant must testify. [See Luce168] States may              religion, beliefs, or opinions
         still allow defense appeals from adverse rulings
                                                                    Rehabilitation of Witnesses
         in limine.
                                                                    FRE 608 (130)
      h) Limits – impeaching party is allowed to bring in
         the fact of the conviction, date, and type but not
         the underlying details.
                                                                    169
      Clark: thinks that you should not be able to skirt 609            FRE 608(a)(2)
                                                                    170
         and bring in the gory details under 608, but there             generally viewed as a result of judicial discretion in FRE
                                                                    403.
         seems to be no case law.                                   171
                                                                        Examples/Clarification: when otherwise excludable
                                                                    testimony gets in to contradict a witness, usually the testimony
                                                                    being contradicted could itself have been excluded: e.g.
                                                                    testimony by D, “I’m a good driver” could be excluded by
165
    FRE 609(a)(1)                                                   objection because it’s character evidence. But P won’t object,
166
    FRE 609                                                         because it lets him bring in evidence of other accidents as
167
    page 614                                                        counterproof.
168                                                                 172
    page 625                                                            page 661

                                                               18
                                                                                                                   Abhijit Das, 1999
                                                                                                                   Evidence Outline


Basic Principles                                                   Privileges
1. You can’t repair until attacked. 173But you can                 FRE 501 (113), 502 (299), 503 (300), 504 (306)
   bring out damaging information on direct so as to               State & Common Law
   defuse:                                                         1. Based on societal desires to encourage particular
   a. expert fees                                                      relationships, and therefore unlike other rules of
   b. prior convictions                                                evidence.177
   c. plea bargains                                                    a. FRE has no specific privilege provisions178
2. Repair must meet attack: only fairly direct                             except for FRE 501
   responsible is allowed, hence, a statement                          b. in diversity cases, governed by state law and
   supporting the general veracity of a witness will not                   privilege rules, in federal question cases,
   be allowed to answer an attack on a specific                            governed by federal common law – not bound
   statement.                                                              by the state in which the court sits.
Ways to Repair…                                                        c. there must be a confidential communication for
1. Redirect examination of witness: an attempt to                          the privilege to apply
   explain away any aspersions cast upon his veracity                  d. person who holds privilege may waive it by
2. Cross examine negative witnesses: in an effort to                       consent
   refute point suggested during the attack                                a. disclosure to a third party can constitute
3. Positive character witnesses:                                                waiver
   a. testimony of character witnesses as to good                      e. Eavesdroppers – as long as the privilege holder
        reputation for truth of primary witness [see US                    was not negligent, there is no waiver, and
        v. Medical Therapy Sciences174]                                    eavesdropper may not testify which is different
   b. generally, we don’t like expert witnesses                            than the common law rule.
        testifying as to whether someone is telling the            Attorney-Client179
        truth, but they can support the plausibility of the        1. Client holds privilege to refuse to disclose and to
        testimony.                                                     prevent anyone else (including lawyer) from
4. Prior Consistent Testimony: to rebut charges of                     disclosing a confidential communication180
   recently fabricated testimony175                                    between attorney and client181 during legal
   a. should predate alleged fabrication or motive                     services182 An attorney’s waiver is invalid without
        [Tome v. US]                                                   client’s consent.
   b. since it is a non-hearsay use, doesn’t have to
        meet requirements of FRE 801(d)(1)(B) – only               177
                                                                       Examples/Clarification: the privileges are often aimed at
        needs to do so if you wish to use it as                    obstructing the free flow of information. the other rules of
        substantive proof.                                         evidence are generally viewed as tools to ensure more
5. Court retains the discretion to limit embarrassment             accurate adjudication. To this end, see Bentham, on page
   of witnesses176                                                 868 which says the privilege is only for protecting the guilty.
                                                                   Counter arguments: a) even innocent people need
Leading Questions                                                  representation to protect their rights and may not want to spill
FRE 611 (147)                                                      their privacy to do so, b) we live in a complex society – need
Cross Examination                                                  help to conform to the law.
                                                                   178
1. Cannot refuse answer                                                they were approved by the Supreme Court but rejected by
Direct Examination                                                 Congress. Proposed FRE 502-510
                                                                   179
1. Improper, except to establish preliminary facts; to                 PFRE 502
                                                                   180
    aid witness with memory loss; when questioning                     Examples/Clarification: the communication must have
                                                                   been made to an attorney (which includes secretaries,
    hostile witness, child witness, timid witness; to
                                                                   paralegals, etc under US v. Kovel, 882). and applies to
    develop testimony as necessary                                 consultations, even where the attorney is not retained
                                                                   181
                                                                       client can be a corporation as well as an individual
                                                                   182
                                                                       Examples/Clarification: services performed by lawyers are
173
    FRE 608(a)(2)                                                  not always privileged. If lawyer performs other services,
174
    page 673                                                       accounting, investigator, shipping agent, etc. those activities
175
    FRE 801(d)                                                     are usually not covered unless the legal component is great.
176
    FRE 611(a)(3)                                                  see page 872

                                                              19
                                                                                                                Abhijit Das, 1999
                                                                                                                Evidence Outline


      a. the fact that lawyer-client relationship exists and            the privilege. In Upjohn, the corporation had
          the identity of the client are not privileged. [See           learned of possible illegal activity in its foreign
          In re Grand Jury Investigation (Durant)183                    dealings. In order to investigate, its corporate
          but see page 910-911 for contrary examples]                   counsel confidentially spoke with individuals at
          unless they may constitute the missing link in                all levels of the company to discuss the legal issues
          an investigation – self incrimination worries.                involved. The court upheld the privilege and
      b. reasonable steps must be taken to preserve                     overruled the “control group test.” To rule
          privilege – throwing documents in the trash –                 otherwise, would destroy the purpose of the
          not reasonable. [see Sew ‘n Sweep v. Swiss-                   privilege and make it difficult for corporations to
          Bernina184]                                                   comport with the law.
2.    Documents and correspondence prepared by                          a. still unclear who exactly is covered, but
      attorney for his own use are not privileged                            broader than control group, and must deal with
      communication (not communication)                                      employee in his corporate role.
      a. research memos and witness statements, are                  Social Worker-Client
          examples of such documents                                 1. Extends physician-patient privilege in some states
      b. also, physical evidence given to the lawyer –               2. Patient hold privilege
          not as a means by client to communicate with               3. applies whether or not patient is a party
          lawyer not covered. Also, if an attorney                   4. professional must be licensed or certified
          chooses to remove or alter an object, he                      a. applies to psychologists and psychiatrists
          deprives the prosecution of the opportunity to                b. notes taken by licensed clinical social worker
          observe the evidence in its original condition,                    may protected as well
          therefore the original location and condition of           5. communication must be confidential
          the evidence lose the privilege – it’s like the            6. no privilege if:
          object wore a tag: “this object was in place A”               a. patient puts mental condition in issue
          which has been removed. Attorney must then                    b. court ordered examination
          reveal how and where he got the object. [see                  c. commitment proceeding against patient
          People v. Meredith185]                                     Physician-Patient187
3.    Work product – attorney has qualified privilege,               1. statutory privilege based on encouragement of full
      which is not subject to discovery unless good cause               disclosure
      exists                                                         2. patient holds privilege to refuse to disclose and to
4.    No privilege exists if:                                           prevent physician from divulging information
      a. made in the presence or hearing of third party                 acquired while attending the patient in his
      b. act in furtherance of crime or fraud [See State v.             professional capacity
          Phelps, where the court held that advice to                   a. If patient is not present, in most jurisdictions, a
          avoid a future crime is privileged, advice taken                   doctor may assert on patients behalf
          to commit future crime and not get caught is                  b. if person incompetent or deceased, may be
          not privileged.]                                                   asserted by guardian or personal representative
      c. dispute between attorney and client (breach of              3. no privilege if:
          duty)                                                         a. non-medical information
      d. joint clients – when communication made                        b. patient/witness puts physical condition in issue
          between joint clients and attorney and a dispute              c. criminal or tortious act
          arises between the clients.                                   d. dispute between doctor and patient
5.    The Corporate Client – prior to Upjohn v. U.S.,186                e. contractual agreement exists
      the “control-group” test applied to who may                    4. generally, only recognized in civil proceedings
      communicate within a corporation to a lawyer under             5. applies whether or not patient is party to the
                                                                        proceedings
183
    page 905
184
    page 888
185
    page 875
186                                                                  187
    page                                                                   FRE 503

                                                                20
                                                                                                              Abhijit Das, 1999
                                                                                                              Evidence Outline


Husband-Wife188                                                          evidence is what the party claims, then it is
1. protects marital relationship when valid marriage                     admissible under authentication standards
   exists, ends upon divorce                                     Steps in Authenticating
2. spousal immunity from testifying in criminal cases            1. having the exhibit marked for ID by the court
   a. common law – both spouses barred from                          reported
       testifying against each other in civil or criminal        2. authenticating the exhibit by the testimony of a
       cases                                                         witness unless the exhibit is self-authenticating
   b. modern rule: most states allow either spouse to            3. offering the exhibit into evidence
       testify for the other in a civil case, and most           4. permitting examination by opposing counsel
       states also hold that either spouse can be                5. allowing opposing counsel opportunity to object
       compelled to testify against the other in a civil         6. submitting to court for examination if the court
       case                                                          desires
   c. Federal courts in criminal cases: privilege                7. obtaining the ruling of the court
       belongs to witness spouse who cannot be                   8. requesting permission to have the exhibit, if
       compelled to testify or barred from testifying                admitted, presented to the jury by reading it to
       [see Trammel v. US]                                           them or having it passed to them.
3. Spousal Communications                                        Tangible Objects
   a. must be communication made in reliance upon                1. Someone generally identifying something is
       the sanctity of marriage which spouse would                   enough. They are not required to give specific
       want to keep confidential                                     reasons for why they identify the object. “pretty
   b. may be asserted by either party                                sure” good enough as ID [see US v. Johnson,190
   c. divorce does not terminate, and extends beyond                 where the victim authenticated the ax used in the
       marriage                                                      case]
                                                                 2. Chain of Custody: a missing link in the chain if
Written Memoranda
FRE 612 (153)                                                        custody doesn’t destroy the authenticity of the
To promote Credibility and Memory
                                                                     evidence if there is sufficient evidence that the
Present Recollection Refreshed189                                    offered object is what it is purported to be. [see U.S.
1. Shown to a witness                                                v. Howard-Arias191]
2. May not be read while testifying                              Writings
3. Exception: past recollection recorded                         1. Nicknames and references in a written letter
   a. read into evidence after proper foundation laid                discovered during a consent search were sufficient
Adverse Party                                                        to authenticate the letter. [see U.S. v. Bagaric192]
1. Entitled to inspect and introduce portions relating to        2. Stylistic patterns, misspellings, etc. can all be used
   testimony                                                         to authenticate when reasonably reliable
                                                                 3. Contracts:
                                                                     a. someone who saw it executed [901(b)(1)]
Foundational Evidence and Authentication                             b. recognized handwriting [901(b)(2)]
Authentication                                                       c. jury compares handwriting samples [901(b)(3)]
FRE 901 (247)                                                        d. distinctive characteristics [901(b)(4)]
The requirement of authentication as a condition for                 e. obtain - public office where filed [901(b)(5)]
admissibility is satisfied by evidence sufficient to                 f. show – ancient document [901(b)(6)]
support a finding that the matter in question is what            4. see sample on page 974
the proponent claims.                                            Tape Recordings
    1. Judge plays a screening function under FRE                1. Trial judge has broad discretion. Though
       104(b). If evidence is such that there is a chance            competency of the operator, accuracy of the
       a jury could reasonably believe that the                      recording, and ID of the person on the tape are

                                                                 190
                                                                     page 968
188                                                              191
    FRE 504                                                          page 970
189                                                              192
    FRE 612                                                          page 972

                                                            21
                                                                                                                  Abhijit Das, 1999
                                                                                                                  Evidence Outline


    considered, corroborating evidence through a                          4. if you can prove the its contents by the
    “voiceprint” etc. is enough [see U.S. v. Biggins193]                      testimony, deposition, or written admission of
Telephone Conversations                                                       the party against whom it is offered.
1. Self-Identification is Insufficient. [See US v.                    Summaries
    Pool194]                                                          Allowed if the original writings are too voluminous to
Self-Authenticating Exhibits195                                       be entered conveniently into the record.
1. domestic public documents under seal                               Judge/Jury Allocation
2. domestic public documents not under seal                               1. When the admissibility of other evidence of
3. foreign public documents                                                   writings, recordings, or photographs under these
4. certified copies of public records                                         rules depend upon a fulfillment of a condition
5. official publications                                                      of fact, the question whether the condition has
6. newspapers and periodicals                                                 been met is for the court to decide
7. trade signs, tags, or labels                                           2. When the issue is whether the asserted writing
8. acknowledged documents                                                     a) ever existed,
9. commercial paper and related documents                                     b) another writing at trial is the original, or
10. presumptions under Acts of Congress                                       c) the evidence correctly reflects the contends
                                                                              then it is a jury matter.
Best Evidence Doctrine                                                Burdens of Proof
FRE 1001 (259), 1002 (261)
Might be called the “Original Document Rule”                          Burden of Production
Rule in general: “In proving the terms of a writing,                  FRE 301 (63)
where the terms are material, the original writing must               Presumptions
be produced unless it is shown to be unavailable for                  1. Definition: a deduction that the trier of fact is
some reason other than the serious fault of the                          required to draw from the evidence in the absence of
proponent.”                                                              a contrary showing [US v. Ahrens]
1. Original Document rather than a copy                                  a. A presumption shifts the burden of going
2. when presented to prove terms of writing: rule                             forward with the evidence
    only applies where what is to be proved is the terms              2. Rebuttable presumptions – place the burden of
    of the writing and                                                   going forward with the evidence on the opposing
3. the rule does not apply if the document is                            party – or a directed verdict is entered against it
    unavailable because destroyed.196                                    a. if opposing party meets its burden of going
Duplicates197                                                                 forward with the evidence, the case goes to the
Duplicate is admissible unless:                                               jury or judge – if not directed verdict is entered
    1. genuine question exists as to authenticity of the                      against it
         original                                                     3. Majority view: Bursting Bubble Theory – a
    2. under the circumstances, it is unfair to admit the                presumption is not evidence, but a preliminary
         original                                                        assumption of fact which disappears after the
and usually admissible where:                                            introduction of sufficient evidence to sustain a
    1. all originals lost or destroyed                                   contrary finding. Under this approach, once the
    2. if no original can be obtained                                    defendant produces some evidence that the
    3. if the original is in the possession of the                       presumption – a.k.a. plaintiff’s claim – is invalid,
         opponent                                                        the presumption disappears.
                                                                      4. Minority view: Morgan: The presumption should
                                                                         shift the burden of production and persuasion.
193
                                                                         Hence, under this approach, once the defendant
    page 975                                                             produces some evidence that the presumption – it
194
    page 980
195                                                                      must also bear the burden of persuading the trier that
    see page 31, supplement
196
    Rationale: to eliminate chances for distortions in copies,           its evidence is persuasive.
and fraud.
197
    FRE 1003, 1004

                                                                 22
                                                                                                             Abhijit Das, 1999
                                                                                                             Evidence Outline


5. Conclusive Presumptions: rules of substantive                    trier of fact, rather, after P’s presentation of a prima
   law which cannot be rebutted by producing                        facie case, D was only required to demonstrate some
   evidence to the contrary                                         legitimate non-discriminatory reason, and thereafter,
6. Due Process: as long as there is a rational                      it was P’s burden to prove, by POE, that the
   connection between the fact proved and the ultimate              proffered reasons weren’t actually followed. P
   fact presumed, due process requirements are met.                 retains the burden of persuasion throughout.
   Congress, therefore, can allocate presumption, if             2. Disbelief in the defendant’s reasons does not
   rationally related to the purpose, in different issues           equal verdict for the plaintiff. See St. Mary’s v.
   for which civil claims may be brought.                           Hicks199
Burden of Persuasion                                             3. Direct evidence of discrimination, once shown,
FRE 301 (63)                                                        requires D to bear the burden of persuasion of
Generally                                                           demonstrating it would have made the same decision
1. Task - present legally sufficient evidence to                    absent the discrimination. See Price Waterhouse v.
    persuade trier of fact on all issues. Only relevant             Hopkins,200 where the court held that this was not a
    when both sides have met their burden of production             burden shift inconsistent with Burdine, but rather
    so as to make either plaintiff or defendant victory             like an affirmative defense.
    possible.                                                    Burdens in Criminal Cases
Allocation                                                       FRE 301 (63)
1. Usually, the party seeking to change the status quo           1. Elements of a crime – those elements required and
    has the burdens upon it.                                        defined by a legislature that constitute the crime
2. Burden on plaintiff to prove the allegations in the           2. Affirmative Defenses – certain factors recognized
    complaint and the burden upon the defendant to                  by the legislature as being excuses or justifications
    prove all affirmative defenses                                  for the crime
Standards of Proof                                               3. Burdens – the state has the burden of proof as to the
1. Preponderance of the Evidence – fact at issue is                 elements of the crime while the defendant has the
    more probable or likely than not to exist than not to           burden for affirmative defenses
    exist                                                        4. Discretion – a state has considerable discretion in
2. Clear and Convincing Evidence                                    allocating whether a factor is an element or a
    a. existence of fact at issue is highly probable or             defense. Constitutional limits are applicable: due
        reasonably certain                                          process and Eighth Amendment. The following are
    b. higher than POE                                              generally considered allowed:
3. Beyond a Reasonable Doubt                                        a. insanity
    a. sufficient evidence to overcome presumption of               b. self-defense
        innocence of defendant                                      c. duress
    b. standard used in criminal cases                              d. voluntary intoxication
Burdens in Civil Cases                                              e. extreme emotional disturbance
FRE 301 (63)                                                     5. Mullaney v. Wilbur201 - Maine’s murder statute,
1. Workings of FRE 301 – In Texas v. Burdine,198                    which required a defendant to rebut the presumption
   involved a suit under Title VII, where P had the                 of “malice aforethought” was held to be an
   burden of producing evidence that D had                          unconstitutional shifting of burden from the
   discriminated. She also had to persuade the trier of             prosecutor to the defendant, hence a due process
   fact that such discrimination occurred. She had the              violation.
   benefit of a presumption of the existence of                  6. Patterson v. New York202 – a New York law
   discrimination upon the showing that she was                     defined 2nd degree murder as the intentional killing
   qualified. D was thereafter required to prove that he            of another. Can be reduced to manslaughter if the
   had valid non-discriminatory reasons. Held:
                                                                 199
   defendant was never required to persuade the                      page 787
                                                                 200
                                                                     page 787
                                                                 201
                                                                     page 797
198                                                              202
      page 779                                                       page 795

                                                            23
                                                                                                                  Abhijit Das, 1999
                                                                                                                  Evidence Outline


      defendant as an affirmative defense, under POE,                        material whose accuracy cannot reasonably be
      proves he was under emotional disturbance. Held:                       questioned (almanacs, encyclopedias)
      did not violate due process rights of the defendant               2. Examples on page 844
      because the prosecution had to prove all elements of          Legislative Facts
      the crime beyond a reasonable doubt. It is within a           1. Definition: those facts that are relevant to “legal
      state’s legislative power to determine which                      reasoning” and the “lawmaking process”
      elements will be part of which crimes. Dissent:                   a. includes statutory law and judicial decisions
      What, then, prevents a state from abolishing all              2. Advisory Committee Notes – distinguishes
      distinctions and making basic crime definitions?                  legislative from adjudicative facts
      Clark: If you want to offer a new defense, you may            Adjudicative Facts
         place it within the affirmative defense category so        1. The rules which “relate to the parties”
         as to place the burden upon the defendant.                     a. who did what, where, when, how, with whom,
                                                                             and with what motive
7. Sandstrom v. Montana203 - involved a jury                            b. facts that normally would go to jury except that
   instruction which stated “the law presumes that a                         judicial notice may be taken because no
   person intends the ordinary consequences of his                           reasonable person could dispute them, e.g.:
   voluntary actions” Objection to the instruction                           i. the reliability of radar speed tests
   rebuffed by the trial judge – “you can give those to                      j. the boiling point of water
   the Supreme Court.” Held: the jury could have                    Mandatory Judicial Notice
   interpreted this presumption to be a shift in the                1. Facts that are so universally known that they cannot
   burden of persuasion or a conclusive presumption as                  reasonably be disputed (adjudicative)
   to the issue of intent, and hence impermissible.                 2. Meaning of legal expressions (legislative)
8. County of Ulster v. Allen,204 in which a NY state                3. Meaning of English words and phrases (legislative)
   statute stated that the presence of a fire arm in a car          4. Federal and State law (legislative)
   is presumptive evidence of its illegal possession by             5. Federal and State rules of procedure (legislative)
   all in the car. defendants sought to have the statute                a. [201(a) note – treat 2 through 5 as part of court’s
   declared unconstitutional on its face. Held:                         reasoning process and not as judicial notice]
   mandatory presumptions may be challenged on their                Permissive Judicial Notice
   face, permissive presumptions must be challenged as              1. May take judicial notice of certain matters206 and
   applied. Here, the presumption is rational – and                     required to take notice when requested by a party
   more likely true than not – and should be upheld                     and provided with the necessary information207
   because of the rational link between the fact                    2. Laws of other states or nations208
   presumed and the ultimate facts proved by the                    3. Administrative regulations and orders
   prosecution.                                                         a. municipal ordinances must be plead, and may
                                                                             not be judicially noticed, since they are often
Judicial Notice                                                              compiled in a haphazard way and difficult to
FRE 201 (53)                                                                 research
Judicial notice is the acceptance of a fact as true                 Effect of Judicial Notice
without the necessity of formal proof, which may be                 1. Civil Case – binding on jury to accept as conclusive
taken at any stage of the proceeding – both trial and                   any fact judicially noticed
appellate and without any notice required to the parties.           2. Criminal Case – Jury instructed that it may, but not
    1. not subject to reasonable dispute because it is                  required to, accept any fact judicially noticed as
         generally known within the jurisdiction of the                 conclusive209 Though generally, judicial notice can
         court205 (such as location of a road) and capable
         of accurate determination based on review of               206
                                                                        FRE 201 (c)
                                                                    207
                                                                        FRE 201 (d)
203                                                                 208
    page 814                                                            Examples/Clarification: though this was impermissible in
204
    page 822                                                        many jurisdictions under common law, the federal courts and
205
    a judge’s personal knowledge alone is insufficient to           rules allow such judicial notice generally
                                                                    209
support judicial notice                                                 FRE 201(g)

                                                               24
                                                                     Abhijit Das, 1999
                                                                     Evidence Outline


       be taken on appeal, it must be taken at trial so as to
       give the jury a chance to ignore it [See US v.
       Jones210 - failure of the prosecution to prove an
       element of the crime cannot be corrected upon
       appeal, even if the fact would otherwise be subject
       to judicial notice]
       a. not for legislative facts, though: a judicial
            notice regarding a legislative fact, since not
            covered by FRE 201(g), is binding upon the
            jury. Legislative facts are “established truths,
            facts, or pronouncements that do not change
            from case to case but apply universally.” [See
            US v. Gould211]




210
      page 845
211
      page 858

                                                                25
                                                                                               Abhijit Das, 1999
                                                                                               Evidence Outline


   Abhijit Das – Evidence Outline – Index

(Declarant  Unavailable)                       9        defendant’s prior conviction –                     17
Absence of complaints or silence                6        Demeanor 9
Absence of Entry in Business Records           11        Direct Evidence                                     1
Adjudicative Facts                             23        DNA Evidence                                       15
Admission by Party Opponent                     7        Documents and Records                               5
Adoptive Admissions                             8        Duplicates 21
Affirmative Defenses                           22        Dying Declarations                                 12
agent 8                                                  Effect of Judicial Notice                          23
Ambiguity 9                                              Excited Utterance                                   9
Attorney-Client                                18        Expert Witnesses                                   14
Authentication                                 20        Former testimony                                   12
Authorized Statements                           8        Foundational Evidence and Authentication           20
Benefits of Testimony; Contrast with Hearsay    9        gruesome pictures                                   1
Best Evidence Doctrine                         21        Habit 3
Bias 16                                                  Hearsay     5
Burden of Persuasion                           21        Hypnosis in the Courtroom                          14
Burdens in Civil Cases                         22        Impact on listener                                  6
Burdens in Criminal Cases                      22        Impeachment of Witnesses                           15
Burdens of Proof                               21        Inaccurate Perception –                             9
Bursting Bubble Theory                         21        Incorrect Memory                                    9
Business Records Exception                     11        Insincerity 9
can’t repair until attacked.                   17        judge decides –                                     1
Character 2                                              Judge/Jury Allocation                              21
Character for Untruthfulness                   16        Judge’s Evaluation                                 17
child molestation cases                         5        Judicial Notice                                    23
Circumstantial Evidence                         1        jury decides                                        1
Civil pleadings                                 7        Lay Witnesses                                      14
Co-Conspirator Statements                       8        Leading Questions                                  18
collateral issues                              16        Legislative Facts                                  23
Competency and Personal Knowledge              13        Liability Insurance                                 4
Competency Assumed                             13        Mandatory Judicial Notice                          23
Conditional Relevance Determinations            1        Materiality 1
conduct (which did not result in conviction    16        Medical Diagnosis or Treatment                     10
Context      9                                           medical expenses                                    4
Corporate Client                               19        mentally impaired                                  16
criminal liability                             13        MIMIC 3
Criminal pleadings                              8        Mistake in transmittal –                             9
Cross Examination –                             9        Morgan 21
Cross examine negative witnesses               18        My Cousin Vinny                                    15
Dangers of Hearsay                              9        Necessity 12
Dead Man Statutes                              14        Negligent Entrustment:                               2
Declarant  Unavailable                         9        Oath 9, 13
Declarant = Unavailable                        12        of crimes involving dishonesty                     16
Declarant’s state of mind                       6        Offers to pay medical expenses                      4
Defamation                                      2        opening his own door                               17
Defect in Sensory of Mental Capacity           16        opinion 2
defendant’s prior conviction                   17        Opinion or Reputation                              17

                                                    26
                                                                                     Abhijit Das, 1999
                                                                                     Evidence Outline


Other Bad Acts of Misconduct            3       Settlement Offers or negotiations                  4
other crimes                           16       Sexual Assault / Rape                              5
paid witnesses                         16       Standards of Proof                                22
Paper-Mache Man                         7       Statement 6
past memory or belief                  10       Statement of past conditions                      10
Permissive Judicial Notice             23       Statements Against Interest                       13
Personal Knowledge Required            13       statements as to past state of mind               10
Pleas and Related Statements            5       statements obtained in violation of Miranda       16
Positive character witnesses:          18       statements of present intent                      10
Present physical condition –           10       Statements Which Aren’t Hearsay                    7
Present Sense Impression                9       Step Method                                        1
Preserving appeal                      17       Steps in Authenticating                           20
Presumptions                           21       Stylistic patterns, misspellings                  20
Prior Acts / Habit                      3       Subsequent Remedial Measures                       4
Prior Consistent Statement              7       Summaries 21
Prior Consistent Testimony:            18       Syndrome evidence                                 15
prior crimes                            1       Tangible Objects                                  20
Prior Inconsistent Statement        7, 15       Tape Recordings                                   20
Prior Statement of Identification       7       Telephone Conversations                           20
Privileges 18                                   Testimony by Jurors                               14
Probabilities                          2        The Corporate Client                              19
Proving Character                      2        Then Existing Mental or Physical Condition         9
Public Policy Exclusions / Pleas       4        Treatises 11
Public Records & Reports              11        Trustworthiness                                   12
Rape 5                                          Verbal Acts                                        6
Recorded Recollection                 11        Verbal Part of Act                                 6
Redirect examination of witness       18        Vicarious Admissions                               8
Rehabilitation of Witnesses           17        Victim’s Character                                 3
Relevance 1                                     Ways to Repair…                                   18
Remedial Measures                      4        Withdrawn guilty pleas                             5
reputation 2                                    Witnesses 13
rule of completeness                   2        Work product                                      19
Scientific Evidence                   15        Writings 20
Self-Authenticating Exhibits          20        Written Memoranda                                 20




                                            2
                                                                                                                                                               Abhijit Das, 1999
                                                                                                                                                               Evidence Outline


                                                                                                Shepard v. US.............................................................. 10
Abhijit Das – Evidence Outline
                                                                                                St. Mary’s v. Hicks ..................................................... 22
Cases                                                                                           State v. Chappel ............................................................ 1
                                                                                                State v. Moore ............................................................. 15
also People v. Alcade .................................................. 10                     State v. Motta ................................................................ 7
Baker v. Elcona Homes Corp .................................... 11                              State v. Smith ................................................................ 7
Barber v. Page ............................................................ 12                  Tanner v. United States .............................................. 14
Betts v. Betts ................................................................. 6              Texas v. Burdine ......................................................... 22
Bourjaily v. US.............................................................. 8                 Tome v. US .............................................................. 7, 18
Bruton v. US.................................................................. 8                Trammel v. US ............................................................ 20
Carpenter v. Davis...................................................... 13                     U.S. v. Bagaric ............................................................. 20
County of Ulster v. Allen ........................................... 23                        U.S. v. Biggins ............................................................. 20
Daubert v. Merrell Dow Pharmaceuticals ............... 15                                       United States v. Abel .................................................. 16
Davis v. Alaska............................................................ 16                  United States v. Check ................................................. 5
Donnelly v. US............................................................. 13                  United States v. Fowler .............................................. 13
Doyle v. Ohio ................................................................. 9               United States v. Lopez ................................................ 16
Flaminio v. Honda Motor Co ...................................... 4                             Upjohn v. U.S .............................................................. 19
Frye .............................................................................. 15          US v. Ahrens................................................................ 21
GE v. Joiner ................................................................ 15                US v. Alker. ................................................................... 9
Glasser v. US ................................................................. 8               US v. Annunziato ........................................................ 10
Halloran v. Virginia ..................................................... 4                    US v. Castro-Ayon ........................................................ 7
Harris v. New York .................................................... 16                      US v. DiCaro ............................................................... 12
Huddleston v. US .......................................................... 3                   US v. Elmy ..................................................................... 7
In re Grand Jury Investigation (Durant) ................. 18                                    US v. Gould ................................................................. 23
Jenkins v. Anderson ..................................................... 9                     US v. Havens ............................................................... 17
Krulewitch v. US .......................................................... 8                   US v. Hoosier ................................................................. 8
Lloyd v. American Export Lines, Inc ....................... 12                                  US v. Inadi ..................................................................... 8
Luce.............................................................................. 17           US v. Iron Shell ........................................................... 10
Mahlandt v. Wild Canid Survival & Research Center                                               US v. Iron Shell, ............................................................ 9
   .................................................................................... 8       US v. Johnson .............................................................. 20
Mancusi v. Stubbs ...................................................... 12                     US v. Kovel .................................................................. 18
Miranda ......................................................................... 9             US v. Medical Therapy Sciences ............................... 18
Mullaney v. Wilbur .................................................... 22                      US v. Mezzanatto .......................................................... 5
Mutual Life Ins. Co. v. Hillmon ................................ 10                             US v. Nixon .................................................................... 8
Nuttall v. Reading Co. .................................................. 9                     US v. Oates .................................................................. 11
Ohio v. Scott ................................................................ 11               US v. Pheaster ............................................................. 10
Old Chief v. US, ............................................................ 1                 US v. Pool .................................................................... 20
Olden v. Kentucky ...................................................... 16                     US v. Salerno ............................................................... 12
Palmer v. Hoffman ..................................................... 11                      US v. Singer ................................................................... 6
Patterson v. New York ............................................... 22                        Williamson v. U.S ....................................................... 13
People v. Collins,........................................................... 2                 Wright v. Doe d. Tatham ............................................. 6
People v. Meredith...................................................... 19
Petrocelli v. Gallison .................................................. 11
Pheaster or Hillmon.................................................... 10
Price Waterhouse v. Hopkins .................................... 22
Ricketts v. Delaware ................................................... 13
Rock v. Arkansas ........................................................ 14
Sandstrom v. Montana ............................................... 22
Sew ‘n Sweep v. Swiss-Bernina ................................. 18

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