Evidence Outline Law Outline Notes for Law School

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					Evidence Class Notes
Evidence Outline I. Introduction

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A. Evidence Generally  What is admissible in court to be considered by the trier of fact?  Our evidence rules spring from the fact we have a jury system, and jurors are untrained, inexperienced, usually ignorant to the law. We have rules of evidence to help these people, to hear what‘s appropriate.  Some element of compromise B. History  Evidence was common law until 1975. Suggestions by Advisory Committee of the Supreme Court, approved by Congress. Hence FRE is really a statute.  Textbook, Appendix A, FRE.  Textbook, Appendix B, legislative history, advisory committee notes: this is persuasive but not binding  Textbook, Appendix C, deleted and superseded materials and notes C. Evidence Books in Library  Weinstein  Meuller  Nutshell II. Evidence Generally A. Four Types 1. Housekeeping Rules a. These keep order b. Ex) Who speaks, when, etc. 2. Truth Promoting Rules a. Designed to ensure truthfulness and reality in front of fact finder b. Will exclude untrustworthy rules 3. Higher Value Rules a. Rules in effect to protect some higher value b. Ex) Attorney-client privilege, protection against unreasonable search and seizure 4. Political Rules a. Group or industry can shape rules. b. Ex) Rape shield law B. Competent Witnesses (ROTC) 1. Does/can witness remember? 2. Did witness observe event? 3. Can witness understand need to tell the truth? 4. Can the witness communicate? III. Relevancy A. Rule 402 1. Rule a.

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All relevant evidence is admissible, except as otherwise provided by Constitution, Acts of Congress, these rules, or other rules prescribed by SC pursuant to statutory authority. b. Evidence that is not relevant is not admissible. What is relevance? a. Rule 401: Relevant evidence has any tendency to make the existence of any fact that is of consequence to the determination of the actiofn more probable or less probable than it would be without the evidence. i. Ask: does evidence A make fact X more or less probable? ii. Applies to fact X that is of consequence to determination of action (the case). Ie, fact must be relevant to the case iii. Burden: any tendency. Low threshold.

Evidence Class Notes
3. Questions to ask re: relevance a. What proposition are we trying to prove? b. Is proposition provable? c. Does evidence help in proving proposition? Immateriality a. Without relevance b. Waste of time Exceptions to admissibility a. Constitution i. Violation of search and seizure ii. Self incrimination b. Acts of Congress i. Rape Shield ii. Wire tap laws iii. Things said during mediation c. These rules i. For example, see Rule 403, infra ii. Conditional relevance: 1. Evidence is only relevant conditioned on the existence of a separate fact a. Ex) Finding a gun in the home of the accused, but victim was stabbed. Evidence of gun is irrelevant. d. Other rules prescribed by Supreme Court i. Notice of alibi rules in Rules of Criminal Procedure (notice) ii. Insanity defenses iii. Discovery, work product rules Cases a. Judgment of Solomon i. Compromise between competing mothers: cut the baby in half ii. What are we trying to prove?? Who is the biological mother? OR, who is the better mother?

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B. Relevance: Direct Evidence vs. Circumstantial Evidence 1. Direct evidence a. Person who is presenting the evidence (witness) has actual knowledge of what occurred i. Actual witnessing of event ii. Personal knowledge 2. Circumstantial a. Drawn inference from one fact to say another fact occurred i. Ex) If someone sees footprints in fresh snow ii. Ex) A was late for work, then got in a car accident. Inference: A was speeding. b. Judges have some discretion in allowing jury to hear inferences, depending on how much of a stretch they are 3. Places where circumstantial evidence is better than direct evidence a. When person giving direct testimony is not credible: poor eyesight, dementia, alcoholism, grudge against accused 4. Inferences a. Freddy killed Jason, Prosecution wants to present evidence: Freddy‘s letters to Jason‘s wife i. Letters revealed love for wife ii. Freddy wanted to be with wife iii. Wife was married iv. Freddy couldn‘t be with wife while she was married v. Love letters from Freddy are admissible as circumstantial evidence b. Letters from Wife to Freddy i. Inference is weaker, but still may have probative value c. Freddy wrote letters six years earlier i. Too remote?? d. Letter from wife breaking off affair with Freddy i. Relevant: attenuated and weak, but can show Freddy‘s despondency e. Paul accused of killing girlfriend; he says she committed suicide. Six years ago she tried to commit suicide. i. Allow this in??

Evidence Class Notes
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Sherrod v. Berry i. V allegedly reached into jacket for what the cops thought was a gun ii. Is the fact that V did not have a gun relevant? g. V killed, D claims self defense. Witness said V threatened to kill D. i. Statement relevant, because it has a tendency to show that the fact was more probable that he acted in self defense ii. What if D didn‘t know that V had made this statement? Relevant, because D can lose his self defense defense. h. Negligent driving accident, attempting to light a cigarette, no hands on wheel i. Garage finds lit but not spent cigarette 2 days later. Admissible? i. Same guy stopped for drunk driving, Villanova sticker on the back of the car. Cops find half empty can in cup holder. j. Cops come to house looking for A, into front in back, A is hiding in closet. A wanted for outstanding warrant. Is fact he was hiding in a closet admissible? k. Prior slips on a floor. Are the previous slips admissible? 5. Examples a. Mary sees Harry polishing his gun at noon. Store robbed at 2. i. Mary‘s observance of Harry with gun is direct evidence ii. Circumstantial evidence of robbery b. John robs store wearing Phillies jacket. Arrested, search apartment, find Phillies jacket. But Phils have sold 200k of these jackets. i. Phillies jacket: relevant circumstantial evidence (tendency to make a proposition more probable) ii. 200k of them sold: some tendency iii. 2m jackets: loses tendency to make this guy‘s guilt more probable c. John is 10 year old on bike, hit by Smith in car. John says he was walking bike across street, Smith says John did a wheelie off sidewalk i. Testimony that John is capable of doing wheelies 1. Direct evidence that John was capable of doing wheelies 2. This is relevant ii. Testimony seen doing wheelies on sidewalk approaching site of accident 1. Circumstantial 2. Relevant iii. Testimony that John was walking bike 1. Direct 2. Relevant iv. John won a wheelie contest 5 months earlier 1. Relevant??? I don‘t think so…does not tend to prove he was doing wheelies in the intersection v. John doesn‘t have a rear reflector 1. Not relevant to this accident vi. Mile before this intersection, Smith was doing 60 in 30 1. Circumstantial 2. Maybe not relevant?? vii. Smith was not wearing glasses 1. Question of whether he needs them. If Smith does, it‘s relevant, if not, it‘s not viii. Smith is married with two children 1. Not relevant ix. Children in back of the car, fighting and yelling 1. Could be relevant x. John has red hair 1. Irrelevant xi. Smith had $1m liability policy, or No policy 1. High policy = more likely to tell the truth because company will be paying 2. No policy = more likely to lie to cover his tail C. Relevance: Probative Evidence 1. Generally a. Courts do not like to admit things based only on statistics or probability b. Sometimes probability is allowed

Evidence Class Notes
i. DNA ii. Hair iii. Fingerprints 2. Examples a. Equal opportunity cases i. Courts will allow evidence that women or minorities have never risen in the ranks of a company Cases a. Smith v. Rapid Transit i. A greater mathematical probability does not amount to evidence that something in fact occurred ii. Only evidence was ―sketchy probability‖

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D. Relevance Unfair Prejudice: Rule 403 1. Rule a. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. b. Prejudicial evidence must substantially outweigh probative value for evidence to be excluded c. Prejudice examples 1. Gruesome scene: car accident 2. Rule 104: Preliminary Questions a. Court determines what‘s in and what‘s out: discretion 3. Cases a. Old Chief v. US (1997) 1. Whether admission of full record of prior assault, in lieu of D‘s concession on the matter, is an abuse of discretion by the court. Held: yes. 2. 9th Circuit allowed name and nature of prior case into present one. 3. Judge can use discretion is admitting or excluding evidence 4. Old Chief didn‘t want jury to consider his prior crime of assault; he‘s being tried again for an assault 5. Generally, prosecution can prove its case, but here, inclusion 4. Examples a. D was drunk driving, kills B, admits to liability. B‘s wife wants evidence of drunk driving admitted into evidence 1. If wife can claim punitive damages, it‘s relevant 2. If damages are the same regardless, evidence of drunk driving is not relevant b. Guy sitting in car, wife hit by car and killed, husband unconscious. H suing person who hit car for emotional trauma. H didn‘t see wife after accident; but H has testimony from undertaker and photos. 1. Whether this is relevant depends on jurisdiction! 1. Depends on whether state allows recovery for emotional distress after the fact or whether distress must be contemporaneous with accident Review of Relevance 1. Must tend to make fact more or less probable 2. Must be a fact of consequence to the case 3. 3 questions re: relevance of evidence a. What is the proposition we are trying to prove? b. Is proposition provable? c. Does evidence prove proposition? 4. Rule 402: relevant evidence in, minus exceptions. Irrelevant evidence out 5. Conditional relevance: evidence allowed in conditioned on proving of subsequent fact 6. Probative value: courts will usually not rely on probability alone 7. Probative value and prejudicial effect: even if evidence is relevant, if it‘s prejudicial value substantially outweighs probative value, it may be excluded E. Character: Rules 404(a), 405 1. Generally a. Questions to ask i. What‘s the character evidence being used to prove? ii. May you use it under FRE?

Evidence Class Notes
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iii. If yes, how can you use it? Just because a person has a character trait doesn‘t mean it‘s relevant to conduct at issue i. Ie, cannot use evidence of trait or character to prove someone has a propensity to act in a given way, in a civil case 1. Ex) Can‘t say ―Jim‘s usually reckless, so he was probably driving recklessly this time‖ 2. Ex) Person has been arrested and convicted of theft often. New case for shoplifting. Can‘t use character to prove a particular fact. c. Character evidence is the nature of a person i. Talking about the way people behave ii. If you put in evidence of character, it is too prejudicial iii. In different circumstances people‘s character changes d. Character can come in when character element is part of the claim or the defense. Ie, when character of the accused is elemental to the whole case. i. Ex) Custody case: parental character: what each parent has done in the past ii. Defamation case: proof of past actions to defend against libel per se Exceptions: a. Character of the accused (only relates to criminal cases) i. D can put witness on stand to state reputation or opinion re: D‘s pertinent trait or character ii. Prosecution can rebut D‘s character testimony on cross, but state cannot put on D‘s character evidence in the first place. Ie, state can counter D‘s character evidence, or state can ask about specific incidents of conduct. iii. If D puts on evidence of accused‘s reputation, State can then put on evidence of D‘s character in cross examination b. Character of the alleged victim (applies to criminal cases) i. D can put on evidence of alleged V‘s pertinent trait or character via reputation or opinion ii. State can rebut the reputation or opinion on cross examination c. Relating to Rule 608: truth Rule 404(a): Character Evidence not Admissible to Prove Conduct a. Character of evidence generally: evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: i. CRIMINAL: Character of Accused: Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution (Rule 405: Defendant puts in character evidence to help their case. Prosecution can rebut that character only after D has put it on through cross examination). ii. CRIMINAL: Character of Alleged Victim: Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor (with homicide case: if D says V was aggressor, state can admit evidence that V was a peaceable person). 1. If D puts on character witnesses that say victim is a violent person, Prosecutor can brign witnesses to say D is a violent person 2. If D puts a character witness on saying D is not a violent person, P can cross –examine the D witness. 3. If D says the victim is a violent guy and brings witnesses to attest to violent character, P can put on opinions that say the victim is non-violent 4. D puts on a character witness saying the man he is charged with murdering was a violent aggressor, P can put in character witnesses to rebut evidence. iii. CIVIL: Character of Witness: Evidence of the character of a witness, as provided in rules 607, 608 (truthfulness), and 609 (see impeachment, infra) iv. CIVIL: Rule 405(b): Where person‘s character is central element of case 1. Ex. Bring in employee that has a great reputation. Employee embezzles. Sue employment agency. Character of the person is an element of the case 2. Ex. Custody case. Decision based on the character of the parents 3. Ex. Defamation. Newspaper writes that you are a thief. You aren‘t. Sue the paper for libel. Paper has to use character to use defense of truth.

Evidence Class Notes
Ex. Negligent Entrustment of property. You give someone a car, and they get drunk and crash the car. You have to be shown that you knew or should have known that this person was a dangerous driver. With character of accused and victim: prosecutor cannot raise the issue, must be initiated by the D. 4.

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b. Cases a.

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Cleghorn i. Prior evidence of intemperance was properly excluded ii. Seeking punitive damages that RR was negligent because they were hiring a drunk. iii. If you can otherwise prove driver was drunk that night, evidence of prior drunkenness can be relevant to show company‘s negligence in hiring a drunk iv. Probative weight opposed to prejudicial effect b. Michelson (1948) i. Whether evidence of arrest 27 years prior should be excluded ii. Cross examination of character witnesses iii. Common law rule against using evidence of an evil character to establish guilt iv. D can introduce evidence of good character (reputation and opinion) 1. But this is subject to tests of credibility by prosecution! 2. If witness has ―not heard‖ of other past convictions, DA is stuck. 3. DA can introduce his own witness, but cannot ask about particular instances on direct examination v. Character evidence is hearsay by nature vi. Character witness can make a conclusion without being an expert vii. Takeaways 1. You can‘t use the cross-ex to show that the person had actually done bad things in the past but can use it to determine whether the character testimony is accurate and they really know the person‘s reputation (Limiting instructions) 2. Arrests must really have to occur for DA to be able to use that question Assuming Character is Admissible, how do you get it into Evidence: Rule 405 a. If character evidence IS admissible, this rule says how you can have it admitted b. Reputation or opinion i. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On crossexamination, inquiry is allowable into relevant specific instances of conduct. 1. Reputation defined: witness saying he has spoken about the D in the community. Like hearsay. a. Arrest alone, without conviction, may be enough to affect reputation b. But DA must have good faith in believing it really happened 2. Opinion: witness‘s opinion re: D. a. I know Dr. So and So. It is my opinion that he is an honest guy. b. Hard to figure out community reputation when people don‘t stay in communities long enough 3. Specific conduct: inquiry allowed on cross exam, not in direct examination a. Ex) A returned B‘s wallet with $1000 in it c. Specific instances of conduct i. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. 1. Must be element of case, or on cross examination by PROSECUTION ONLY Review a. CIVIL: Don‘t allow admission of person‘s character to prove D committed this act i. Exceptions: when character is an element of the claim (Rule 405) ii. Reputation iii. Opinion iv. Prior bad acts (if it‘s an element, character can be discussed on direct exam.) b. CRIMINAL: Prosecution cannot open the door on a person‘s character EVER c. Once D opens the door, DA has 3 ways to fight back: Prosecution can rebut to show D really has bad character i. DA can put on his own witnesses to show D has a bad reputation ii. DA can cross examine D‘s witness under 404a3

Evidence Class Notes
iii. DA can cross examine D‘s witness re: specific instances of prior bad acts (Cannot bring in other witnesses to prove the bad acts). Judge has to tell jury they are not to consider whether the prior bad acts prove new act, but rather whether D‘s witness really knew about D‘s reputation This is all subject to Rule 403: probative value vs. unfair prejudice

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Rule 404 If D says he‘s good, DA can show D was bad If d says V is bad, DA can show V is good If d says v is bad, DA can show D is bad also If d says V is aggressor, DA can show V was peaceable Rule 608 – Attack D‘s character witness for truthfulness 7. Examples a. P cannot open the door on character b. D can open door on character (character is an element of the case) (opinion) i. Prosecution can rebut on cross by asking about specific instances of conduct on cross c. Once D opens door, P can bring back witness to discuss D‘s character via opinion or reputation, but not specific acts d. Once D says V was bad, P can cross examine this witness to show V was peaceable, P can also bring in other witnesses to say V was peaceable (reputation, opinion, Not specific acts, because this is direct!) e. Once D says V was bad, P can bring witnesses to show that D was bad too Other Crimes, Wrongs, or Acts: Rule 404(b) a. Rule (mostly for criminal cases, sometimes civil) i. 404(b) Other Crimes, Wrongs, or Acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. 1. It may, however, be admissible for other purposes, such as (not exhaustive list) proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 2. Ie, other crimes etc. cannot be used to prove character, it can be used for other purposes 3. Still subject to Rule 403 prejudice. 4. MIAMI COP: when other crimes, etc. can be admitted a. Motive i. If V was a witness in another case against D ii. If D was having $ trouble: arson to collect insurance iii. Drug problem  robberies b. Identity i. We can ID this person from prior acts: M.O., something unique to this D ii. Bring in other acts to show this was the guy iii. Ex) Rapist stealing shoes and wore a stocking cap iv. A signature c. Absence of Mistake (opposite of motive) d. Intent or knowledge i. Can show D knew what he was doing (There was no mistake here) ii. Ex) D was arrested 6 times before for pot possession (You know what you‘re doing if you get caught multiple times) e. Common plan or scheme, or design i. Sniper denies McLean shooting, but it was part of a plan ii. Completing the story: Lee Harvey Oswald shot a cop after he shot JFK f. Opportunity (and ability) to commit the act i. Evidence of prior safe cracking to show he had the ability to do it again ii. Evidence that robber was in town on same date to show opportunity to commit a robbery

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Evidence Class Notes
iii. Person charged with blowing out a building. Put in evidence that, a day before, he purchased or burglarized explosives to show opportunity to commit the crime. g. Preparation i. Robbery with getaway car  stolen car the day before Civil cases a. Can look to prior acts to show patterns i. VLS graduate gives $100k to school, heirs are mad, but prior gifts show pattern of giving

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Commentary i. McCormick 1. Prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the D is a person of criminal character, it is more probable that he committed the crime for which he is on trial. 2. Permissible purposes: a. To complete story of crime by putting it in context b. To prove existence of larger plan c. To prove other crimes by the accused so as to indicate ―handiwork‖ d. To show a propensity or passion for unusual and abnormal sexual relations e. To show this act was not accidental f. To establish motive g. To establish opportunity h. To show D acted with malice, deliberation, or requisite intent i. To prove identity Examples i. See Page 117 Conditional Relevance i. With what degree of proof does P have to show the other crimes occurred to allow other crimes, acts, etc. into this case? ii. Don‘t have to prove clear and convincing/preponderance, but by the judge(was there enough evidence to take it to a jury so that the jury might believe that the preliminary fact may be established iii. Ex. Assault charge (used brass knuckles) – P wants to put in evidence that, in the past, there are 2 incidents that he used brass knuckles to hit girls prior to raping them. That is very prejudicial. iv. Ex. Person charged with attacking a 12 year old girl in an unusual way. Prior acts in which he has attacked other 12 year old girls in exactly the same way. Probative. Extremely prejudicial. 404b 3 step analysis i. Was evidence of another crime or act offered? 1. If so, what is it being offered for? 2. What issue of consequence is the other crime being used to prove? (Intent? Character? Knowledge? Ability?) 3. Assuming there is enough evidence, do you let it in or keep it out even though it is probative because it is substantially outweighed by prejudicial effect. ii. Do I have enough proof that the person really did those things? Is there sufficient evidence form which a reasonable jury can conclude that he did those other things Cases i. Huddleston (1988) 1. D arrest and accused of receiving 5000 stolen videocassette tapes in 1985. D says he didn‘t know they were stolen. P wants to show he knew he was buying stolen tapes by showing that he was selling stolen TVs and fridge‘s that seemed to be stolen, and got them from same source. D says that this is character evidence which is inadmissible. a. Low price b. No bill of sale c. Large quantities from same source 2. Whether the court must find the government has proved ―the other act‖ by a preponderance of the evidence before submitting that evidence to the jury. Held: no.

Evidence Class Notes
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Evidence should be admitted if there is sufficient evidence to support a finding by the reasonable jury that the D committed the similar act. 4. This evidence still must be relevant! a. Rule 104(b): Relevancy conditioned on fact: enough evidence to support the fulfillment of the condition 5. D will still have other protections under other FRE a. Rule 403: prejudice. ii. McQueeney v. Wilmington Trust (3d Cir. 1985) (Civil Case) 1. Evidence that P‘s friend lied in deposition, even though that witness never testified, was both relevant and admissible to P‘s case. 2. D suborned perjury, which would show weakness in case 3. Unfair prejudice ≠ evidence merely adverse to other party 4. This evidence had probative value which was not outweighed substantially by its prejudicial value 5. Judge must conclude that a reasonable jury under the facts of this case would find against D (Rule 104(b)). iii. Bunion v. Allstate Ins. (E.D. Pa. 1980) 1. P had 7 other claims in 9 years. D wanted to admit this evidence under 404(b). Go to show motive, intent, ability, etc. 2. Most courts admit evidence of prior claims when they have been similar in nature and fraudulent. a. Judge here says there was not enough evidence to show other claims were fraudulent (Rule 104(b)) 3. Evidence that P is a chronic personal-injury claimant has generally been excluded because its slight probative value has been deemed outweighed by the danger of prejudice. Cali Example: Lizzie Borden i. L bought poison the day before. Admissible? 1. Maybe: shows preparation ii. Housekeeper heard L fighting with stepmother re: stealing jewelry 1. Yes: shows motive iii. In case in chief, prosecution offers testimony that Lizzie cut off the cat‘s head a month before 1. Maybe: animosity  motive iv. Review of 404(b) i. Can look at other acts, not to show character, but to show D was able, had motive, etc. ii. Misconceptions: 1. Does not just apply to criminal acts 2. Does not necessarily have to be a prior act, can be subsequent (credit cards stolen, then subsequently used). iii. Three steps for analysis 1. Act has to be relevant under Rules 401 & 402 2. Assuming I can make reference to the other act, is it unfairly prejudicial under Rule 403? 3. Is there sufficient proof that D did the prior crime? (Would a reasonable jury find as such? Under Rule 104(b))

E. Similar Crimes in Sex Offense Cases 1. Generally a. Traditional common law rule: could ask a woman everything about her sexual past b. Under Rule 404(a)(2): attack character of victim i. Using reputation, opinion (on direct) ii. Specific instances (on cross) c. 1994 Crime Control Bill: 2. Rule 412: Sex Offense Cases: Relevance of Alleged Victim‘s Past Sexual Behavior or Alleged Sexual Predisposition a. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subsections (b) and (c): i. Evidence offered to prove that any alleged victim engaged in other sexual behavior ii. Evidence offered to prove any alleged victim‘s sexual predisposition iii.  This rule protects alleged victims and witnesses, other parties (in both criminal and civil??)

Evidence Class Notes
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Exceptions i. Criminal Cases 1. To prove other perp 2. To prove consent 3. To protect D‘s constitutional rights ii. Civil Cases: Balancing test. 1. Only if probative value substantially outweighs the danger of hard to any victim and unfair prejudice to any party. c. Procedure to Determine Admissibility i. A party intending to offer evidence under subdivision (b)… procedure. Rule 413: Evidence of Similar Crimes in Sexual Assault Cases a. In a criminal case where D is accused of sexual assault, evidence of D‘s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant i. See Legislative History: people who commit one sexual assault are likely to commit another. ii. Can now use specific incidents of conduct to show depraved character and a lustful disposition, and to show D acted contrary to it iii. In SA cases, don‘t have to wait till D opens door on D‘s character. DA can open the door to any matter to which it is relevant b. If government intends to use such evidence, DA/USA must disclose evidence to D, including witness statements or summary, at least 15 days before scheduled date of trial or at such later time as the court may allow for good cause c. This rule shall not be construed to limit the admission or consideration of evidence under any other rule i. This means evidence could also be admissible under other rules. For example, 404(b) other crimes or wrongs. ii. Other evidence: doesn‘t mean convictions. iii. Judge decides preliminarily whether this evidence should be admitted under 104: (a): preponderance of evidence, or (b): that a reasonable jury would conclude as such. d. Sexual assault is described as: i. Conduct proscribed by 18 U.S.C. § 109A ii. Contact, without consent, between any part of D‘s body or an object and the genitals or anus of another person iii. Contact, without consent, between the genitals or anus of D and any part of another person‘s body iv. Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person, or v. An attempt or conspiracy to engage in conduct (1)-(4) Rule 414: Evidence of Similar Crimes in Child Molestation Cases a. Id. re: child molestation i. Criminal case: evidence of other offense of child molestation is admissible ii. Megan‘s Law: registration with County. iii. Limitations: 1. Can only admit other evidence of child molestation in child molestation cases, and the same for sexual assault. b. Id. c. Id. d. Child is under age 14. Molestation means: i. Conduct proscribed by 18 U.S.C. § 109A that was committed in relation to a child ii. Conduct proscribed by 18 U.S.C. § 110 iii. Contact between any part of D‘s body or an object and the genitals or anus of child iv. Contact between genitals or anus of D and any part of child‘s body v. Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child, or vi. An attempt or conspiracy to engage in (1)-(5) Rule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation a. In a civil case in which a claim for damages or other relief is predicated on a party‘s alleged commission (not necessarily conviction!) of conduct constituting an offense of sexual assault or child molestation, evidence of that party‘s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414.

Evidence Class Notes
i. In a civil case, evidence of other molestations are admissible b. c. Cases a. Id. Id.

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US v. Mound (8th Cir. 1998) i. Rule 413, under constraints of 403 unfair prejudice, is constitutional ii. DA wants to put in evidence of prior sexual assaults of minors iii. Judge lets in evidence of molesting 12 year old but not evidence of 6 year old. b. Bill Cosby (2006) i. Judge ordered Cosby had to answer questions re: other allegations of past sexual assault from other Jane Doe witnesses ii. But judge limited time of allegations to five years before this alleged assault Review of Victim‘s sexual history a. In civil cases, admissible evidence under Rule 412 must be otherwise admissible!! Ie, it must be relevant, in cases involving sexual misconduct. Examples a. Employee charges boss with sexual harassment. Evidence of other sexual molestation is allowed in, BUT evidence of employees past sexual enticement is NOT allowed in under Rule 412. b.

F. Rape Cases 1. Rule 412: see supra G. Habit, Routine Practice 1. Generally a. Usually cannot put in evidence of someone‘s character b. Habit or routine practice is relevant to prove conduct on a particular conformed to a particular habit c. Character: general description of disposition, trait, a person‘s being. Honesty, sobriety, peacefulness, etc. d. Habit: much more specific than character. A reaction to a certain, repeated, specific situation. Semiautomatic unvaried response to a narrow set of circumstances. e. Ex) A pulls out of driveway and hits car. i. Character: A is a negligent driver ii. Habit: A never stops before entering street from driveway f. Questions: i. How specific is the particular item we are trying to show? ii. How repetitive is that act? iii. How long has the act been going on? iv. Does person seem to do this semi-automatically? g. Habit ≠ reputation or opinion i. Could prove character by reputation or opinion and could only talk about specific instances of conduct by cross examination ii. Habit is not reputation. Can prove it by reference to specific instances. This can go in on Direct Examination! h. Judge makes the decision re: habit, under Rule 104(a) i. Routine Practice of an organization: i. Ex) Secretary mails letters from out box in front office 2. Rule 406 a. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. i. Habit is allowed in ii. Corroboration: habit can be established by someone who knows nothing at all about the case. Habit can be established by the person himself: self-claim. iii. Admissibility ≠ weight iv. Judge must decide whether evidence is probative 3. Commentary a. Park: evidence of habit is freely admissible. i. Examples of habit

Evidence Class Notes
b. 4. Cases a.

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Difference between character and habit is a matter of degree: habit is regular response to a repeated specific situation Perrin v. Anderson (10th Cir. 1986) i. Officers get in fight with Perrin, officer shoots Perrin. ii. Trial court admitted evidence of prior violence with deceased. Court says this should not have been admitted, under character evidence rules. 1. Rule 405a: Specific instances of conduct are not admissible to prove character of victim unless it‘s on cross! Cops should not be allowed to discuss specific instances of conduct to prove Perrin‘s character. iii. Civil Rights Action under § 1983: usually courts will let in defendant‘s character evidence in under Rule 404. D‘s here are kind of like criminal Ds. iv. This could be used, however, under Rule 406: 1. Cops‘ testimony CAN be allowed in to show Perrin‘s habit of violence: whenever Perrin came into contact with cops he acted violently. v. Judge had to find there was enough evidence to show a basis for habit under 104(a). vi. Should judge let cops testify about all 4 instances? 1. Must balance probative value against prejudicial impact vii. Evidence may have been admitted under Rule 404(b): motive. Halloran v. Virginia Chemicals (Ct. App. N.Y. 1977) i. Halloran used Freon, label said not to heat it. He did and it exploded. ii. D wanted to introduce evidence of P‘s habitual improper use of immersion coil iii. Court said it could go in iv. Proof of deliberate repetitive practice by one in complete control of the circumstances is highly probative In re Silicone Breast Implant (PA Common Pleas 2003) i. Whether former patient could testify re: what doctor told them about breast implants. ii. Ps wanted to put on other women to show doctor did not give any information to other women, and didn‘t do the same again. iii. Doctor wants to put on other patients to whom he told potential failures. iv. Can‘t show he told this patient just because he told other patients in the past = character

b.

c.

H. Similar Happenings 1. Generally a. No rule that specifically talks about similar happenings b. We just have to consider whether the evidence is relevant. c. Ex) 50 people who ate at Denny‘s gets sick: similar happenings d. Ex) City wants to take your property under eminent domain: how much are other similar houses selling for in the area e. Similar happenings to different people at the same place f. Leave to trial judge‘s discretion: is evidence relevant? Is there enough to show sidewalk is to blame, and not another extraneous thing. 2. Examples a. Woman in golf shoes walking over cement area fell. D wants to admit evidence saying no one has fallen over the last 12 months. Court might not let this in: how does D really know if no one has fallen? b. 50 women applicants/50 men applicants – 50 men hired. c. People always did business in the same way. 3. In Practice a. Person fell on the sidewalk. If 100 others fell proves that it was a dangerous condition and the owner had notice of the falling. Other side says that it is a different time of day, different conditions, confusing to the jury, keep it out. 4. Cases a. Simon v. Kennebunkport (Me. 1980) i. Lower court excluded evidence of prior falls on sidewalk by other people. ii. 2 shop owners noted that 100 people had stumbled over a period of time iii. Have to show some similarity in defect iv. Is it relevant? Probative value of significance in this case. Prejudicial? Different conditions?

Evidence Class Notes

13

v. Judge, under Rule 104(a), must decide whether there‘s enough evidence to go in, and whether it‘s too prejudicial. vi. Evidence is to be admitted over objection based on Rule 401 when there is a substantial similarity in the operative circumstances between the proffer and the case at bar and when the evidence is probative on a material issue in the case. Judge must then determine whether the probative value of the evidence is substantially outweighed by the countervailing considerations of Rule 403 (unfair prejudice). I. Authentication 1. Generally (Rule 901 and 902) a. Party is offering evidence that it says is relevant to prove a particular fact. b. Before any (usually tangible) evidence is submitted, party offering evidence must show sufficient evidence that the evidence is what it purports to be. c. Ie, party has evidence but cannot put it into evidence unless party can show the thing is what it purports to be. d. Evidence must be what party says it is e. Ex) DA brings in bag of coke. How do we know it‘s coke? How do we know it was seized from D? f. Authentication is a requirement of admissibility: condition precedent to admissibility. g. Still must be RELEVANT to the case! 2. Three types of evidence that must be authenticated a. Tangible evidence i. Ex) Gun, contract, poisoned muffin 1. Show it is the same gun 2. Chain of custody b. Demonstrative Evidence i. Not the actual item, but a fair and accurate representation of the item ii. Unlike real evidence, DE is a representation of a real thing 1. Photograph of where incident happened, map, diagram, model, etc. iii. Tangible materials that are used for illustrative or explanatory purposes only and do not purport to be ―the real thing.‖ 1. Selected: such as handwriting exemplars 2. Prepared or reproduced: such as a sketch or diagram iv. Ex) A hit B with bat. B brings into evidence a similar bat and says it‘s a fair and accurate representation of the bat. v. Ex) Accident at intersection. Cannot bring intersection into courtroom, but party can introduce and authenticate a photograph of the intersection vi. Two objections to DE: 1. No Authentication: no one says it‘s a fair and accurate representation of the thing a. Ex) Picture of intersection taken in winter, when accident was during the summer, when leaves blocked the stop sign. Ie, this is not fair representation 2. Evidence is prejudicial under Rule 103. a. Ex) Picture of mangled body after being hit by car too inflammatory. Jury won‘t stay focused on the real issue of whether driver went through red light. vii. Diagrams are not hearsay 1. Testimony of witness on the stand might be hearsay viii. ―Do I have someone to witness that it was a fair and accurate representation of the evidence?‖ 1. Is it different? In what way? 2. Is the difference relevant? ix. Does it matter that a diagram is not to scale? Judicial decision c. Intangible evidence i. Ex) Phone call threat. A is familiar with and can identify B‘s voice = authenticated. 3. Burden a. Can‘t put in evidence unless it is authenticated b. To give evidence sufficient to support a finding that the matter in question is what its proponent claims. 4. Phone calls a. Introduce a conversation: authenticate by i. Who: who might have heard it? Who was there? ii. When did the convo take place? iii. Where did the convo take place? iv. Asking if the person is ―NAME‖ on the other side of the line, that is authentic enough

Evidence Class Notes
5.

14

v. Leaving a number with a secretary to call back How to get it in a. Like 104(b): enough that a reasonable jury would conclude as such b. Witness just has to be familiar with the demonstrative evidence. He doesn‘t necessarily have to be the photographer. 6. Commentary a. One who seeks to introduce evidence of a particular fact or item of proof must generally give evidence or offer assurance that he will do so, of those circumstances which make this fact or item relevant to some issue of the case. b. When authorship is the issue, some showing must be made that A was the author c. In court, purported signature or the recitation of authorship on the face of the writing will not be sufficient 7. In Court Procedure a. A brings X ray in: identifies what he brought in, authenticates it b. Label exhibit 1 c. Any objections?? d. If not, it‘s entered e. Writings: i. If you want to oppose the admissibility of a writing, try one of 3 ways: 1. Authentication - has it been authenticated? 2. Hearsay – Are the statements in the writing hearsay? 3. Does not satisfy best evidence rule f. Hearsay issue: judge can still keep it out 8. Cases a. US v. Dockins (5th Cir. 1993) i. FBI records of guy with same name, record of felony, in Denver. Denver sent fingerprint card. Records were not accompanied by a custodian or a certification sheet. Not authenticated! ii. Cop on stand testified that fingerprint card was from the DPD. However, he was merely stating what was on the face of the document and did not have further knowledge about where the card came from. iii. The government did not offer any circumstantial evidence at trial to show the fingerprint card came from the DPD. iv. Thus, there was no basis for a reasonable jury to conclude these documents were what they purported to be. b. Denton v. Md. Casualty (5th Cir. 1990) i. Mills is dead, but executor trying to collect from insurance company on burned property. Ins. Co. believes Mills set the fire himself. ii. Witness apparently saw Mills leaving the scene in his pickup. iii. Dispatcher called Mills at Mills‘s residence. Is Mills there? No, he‘s not here. iv. Trial court admitted evidence of telephone call. v. Even though the person who answered said ―Mill‘s residence,‖ that is enough to make a PF showing that would allow the issue of identity to be decided by the jury. c. U.S. v. Hampton i. Federal insurance proven by a photocopy of FDIC insurance. ii. It is enough. Not a heavy burden to prove that something is authentic. 9. Examples a. Wife has been murdered. There have been previous phone calls from the wife saying ―he is beating me.‖ i. Objections: 1. Authentication of phone call 2. Hearsay issue: 3. Prejudicial Effect 4. Relevancy 5. Inadmissible character evidence b. Letter: Signature on the letter i. Return address ii. Compare handwriting (expert) iii. Fact-finder: show two samples to the jury c. Newspapers: 10. Rule 901:

Evidence Class Notes
a.

15

b.

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. i. Sounds like 104(b): if judge finds there is sufficient evidence of authentication for a jury, that is enough (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: i. (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. 1. Witness was there, heard gun shot, recognized gun. 2. Witness has specific knowledge ii. (2) Non-expert opinion on handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. 1. witness does not have to be expert in handwriting 2. Ex) Secretary can testify on boss‘s signature iii. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. 1. Judge or jury can compare documents: one that we know is A‘s signature, and one that is claimed to be A‘s signature iv. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. 1. Ex) Louisville Slugger with Barry Bonds signature: there are 10k of these! But witness carved initials in the handle, etc. 2. When a letter refers to specific facts that 2 people discussed over the phone: internal characteristics. Could contents only have come from parties to the discussion? a. Hypo at 699: letter between parties, X admitting liability. Considering all circumstances, jury might conclude this letter is from X. b. Return address c. Handwriting 3. Look at prior conduct. 4. What about items without distinctive characteristics? a. Chain of custody: can trace where item has been at all times since the incident until it arrives back in court during trial v. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. 1. Witness can recognize person‘s voice as authentication vi. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. 1. A calls B, B says he was the one who stole the wallet. How does A know B is the defendant? Ie, how does A know the guy on the phone is now the defendant? Don‘t need preponderance of evidence, just enough for reasonable jury 104(b). 2. A looked up John Jones‘s name in phone book, answers ―Jones here‖, that‘s enough for authentication 3. Business: look up number, ―Tennis Town,‖ talk reasonably about business transaction. That‘s enough for authentication vii. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. 1. viii. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. 1.

Evidence Class Notes

16

ix. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. 1. x. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. 11. Rule 902: a. Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required with respect to the following: i. (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. 1. Public document, with seal 2. Ex) Climate certificate ii. (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. iii. (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. iv. (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. v. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. vi. (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. vii. (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. viii. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. ix. (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. x. (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. xi. (11) Certified Domestic Records of Regularly Conducted Activity.--The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record—

Evidence Class Notes
1.

17

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; 2. (B) was kept in the course of the regularly conducted activity; and 3. (C) was made by the regularly conducted activity as a regular practice. 4. A party intending to offer a record into evidence under this paragraph must provided written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. xii. (12) Certified Foreign Records of Regularly Conducted Activity.--In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record— 1. (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; 2. (B) was kept in the course of the regularly conducted activity; and 3. (C) was made by the regularly conducted activity as a regular practice. 4. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them

J. Compromise and Offers to Compromise 1. (To keep the evidence out, you need a dispute) 2. Five Parts of Rule 408 a. There must be a claim b. There must be a dispute about the claim c. Statement must be made during compromise negotiations d. Statement must be offered: i. To prove liability or non-liability, or ii. To establish amount of damages, or iii. To impeach a witness‘ testimony through a prior inconsistent statement or contradiction e. Last Part i. Statement must be offering or accepting a valuable consideration in compromising or attempting to compromise the claim, or ii. Conduct or statements made in compromise negotiations regarding the claim 3. Exceptions – Criminal Case a. Conduct or statement made in compromise negotiations regarding the claim when later offered in a criminal case, and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority b. Only statement or conducted admitted – not offer or acceptance (a)(2) only c. You can never put in that you offered SEC $1 million to drop the case 4. Exceptions continued a. Not admissible in a subsequent criminal action if made to the opposing party in a civil case, and not to the government. b. Not otherwise admitted in criminal case c. Proving bias or prejudice d. Negating contention of undue delay e. Undue delay f. Effort to obstruct criminal justice 5. Generally a. Relevant evidence that should still be excluded b. Compromise and Rule 408 applies in civil cases only. c. Evidence of settlement offer is NOT admissible! d. Low probative value: many reasons why people want to settle case independent of whether party was liable. School wants no publicity on molestation case, for example.

Evidence Class Notes
e. f. But is this really low probative value? We want to ENCOURAGE settlement and admission of this evidence would discourage settlement offers. So, we exclude evidence of compromise, BUT will admit evidence of obstruction of justice (avoidance of criminal prosecution). But these offers/acceptances/discussions must be made during compromise discussions to be excluded!!!

18

6.

g. Cases a.

7.

4.

Davidson v. Prince (Ct. App. UT 1991) i. Trial court let in a letter between parties estimating distance of 10 feet. D‘s deposition said 40 feet away. Should statement in letter be admitted?? ii. (If it is a compromise letter it should not be admitted, if it‘s not it shouldn‘t.) iii. Letter was properly admitted because the letter was not an offer to compromise the claim, nor was it written as part of the settlement negotiations. iv. (But this letter was probably a compromise letter.) b. Ex) What if letter says 10 feet, and testimony says 40 feet. Cannot use statement for liability, BUT maybe you can use the letter for impeachment. Rule 408 a. Ie, Rule 408 excludes statements in settlement as to VALIDITY or AMOUNT. b. But, if statement was made in true settlement negotiation, but not re: validity or amount, you can put that statement into evidence. SUCH AS: a. Proving bias or prejudice of witness i. Ex) Witness on stand to testify for P. During settlement, it came out that W is D‘s girlfriend. This statement can be admitted to show W‘s bias or prejudice against P. b. Negativing a contention of undue delay i. Ex) Delayed discovery based on expectation of settlement, or during discussions parties said they wouldn‘t do discovery c. Proving an effort to obstruct a criminal investigation or prosecution i. Ex) During civil case settlement, can admit evidence of obstruction of justice Examples a. Car accident. A says to B ―I am liable. I will pay.‖ When A does not pay, can B admit this into evidence? i. Likely admissible because this probably is not a compromise negotiation b. A says ―I don‘t want insurance involved at all. I‘ll pay your damages.‖ i. Likely admissible: not settlement nego. c. D ran red light, hits P, P says damages are $5000. D says, ―I ran the light, but your damages are $2500.‖ i. Should be excluded: negotiation settlement re: amount. d. D ran light, admitted validity, admitted amount, but says ―I only have $1000.‖ i. Admissible: not negotiation. Amount and validity are not disputed. e. P is ped who sues D driver. Driver allegedly hit P and fled. D says he never struck P. D criminally charged with reckless driving. D tells P ―I‘ll pay you $5000 in the civil case if you say you mistakenly identified me.‖ i. Admissible here in criminal AND civil case: effort to obstruct justice. Even though this sounds like a compromise. f. Settlement negotiation. Can statements made during a settlement negotiation be offered into evidence without a dispute? i. YES g.

K. Guilty Pleas and Judgments in Minor Cases 1. Generally a. This is an exception to hearsay rule b. Facts made evident that led to conviction in criminal case can be admitted into evidence so long as element you are putting in was NECESSARY for that conviction. Ie, sometimes amount does not go in. c. Can be made on the basis of judgment or guilty plea, but NOT nolo contendere. d. Punishment level must be imprisonment > 1 year or DP. e. Can‘t use someone else‘s conviction against him (someone else‘s conviction of stolen goods) 2. Rule 803(22) f. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including,

Evidence Class Notes

19

when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. i. If someone pleaded guilty or found guilty of any element of that plea or conviction which had to be a part of the conviction may be put into evidence of evidence of the fact. 3. Cases g. Ando v. Woodberry (Ct. App. NY 1960) i. Whether a defendant‘s prior guilty plea to a traffic offense be introduced as evidence of his carelessness in a civil action for damages? ii. D argues evidence should be excluded based on hearsay and public policy reasons. iii. Evidence should be admitted, and jury can afford it the proper weight. Ex. A convicted of theft. B wants to introduce evidence A was convicted of theft in civil case. A can say that it is only evidence, because I found new witnesses etc. Prior conviction is only evidence that can be overcome. Apply only to criminal convictions

h.

L. Withdrawn Guilty Pleas 1. Generally a. When D is arrested, talks about pleading guilty plea or makes guilty plea, then wants to withdraw it b. This applies to both criminal and civil c. Different from Rule 803(22): prior conviction can be admissible. Any element of that prior conviction which was necessary for that conviction is admissible against you. d. Guilty plea is admission of the facts: ―I did that.‖ e. Conversations with Police are NOT included in this rule, not part of a plea discussion, and are therefore admissible into evidence. f. You can‘t put anything said in plea negotiations even though he‘s saying something totally different now g. You can‘t use a statement you just made under oath in the presence of counsel and turn it around. 2. Rule 410 a. Except as otherwise provided in this rule, evidence of the following is NOT, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: i. (1) a plea of guilty which was later withdrawn; ii. (2) a plea of nolo contendere; iii. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or iv. (4) any statement made in the course of plea discussions with an attorney (DA) for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. b. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. M. Subsequent Repairs or Precautions 1. Generally a. Exclusion of this evidence is to promote repairs and increased safety. We want companies to improve their products and not be discouraged to do so by having that evidence be admissible. b. Remedial measures: can be more than physical repairs (more light, handrails, etc.). Changing of work rules, change of meds label, etc. c. Change must have been made AFTER accident to not be admissible. d. Evidence of third party repair, as opposed to original party, is admissible against____???? e. Required remedial measures (government): admissible. f. ONLY INADMISSIBLE if original party made changes!! Recall by GM is not admissible, but recall by government IS admissible. g. Exceptions: i. Evidence can be admitted for another reason: proving ownership, control, etc. ii. Feasibility of precautionary measures, if controverted iii. Impeachment 2. Rule 407

Evidence Class Notes
a.

20

b.

3.

c. Cases a.

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: i. negligence, ii. culpable conduct, iii. a defect in a product, iv. a defect in a product's design, v. or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as: (list not exhaustive) i. proving ownership, (if controverted) ii. control, (if controverted) iii. or feasibility of precautionary measures, if controverted, 1. Impossibility - May have a person who says ―it‘s impossible to attach the extra flaps to the plane wings because the plane won‘t fly.‖ Can bring a subsequent remedial measure to show it was possible 2. Economic feasibility - ―Yes, we could make the change in the product, but it will cost too much‖. Someone showing a remedial measure. 3. Ex. Motorcycle maker. P says reason I had accident was because motorcycle has a wobble from a strut weakness. Motorcycle manufacturer says there is no way to avoid the wobble. P wants to present evidence to say D eliminated the wobble. iv. or impeachment. 1. IF someone says the reason there was an accident was because it wasn‘t assembled properly. To impeach them, you can challenge their claim it was the safest or best design. (Shouldn’t deter people to make things better just to make sure you don’t get screwed with a lawsuit.)

4.

Tuer v. McDonald (Ct. App. MD 1997) (What do we mean by feasibility?) i. Guy given Heparin up to 3 hours before surgery. Surgery postponed, patient went into cardiac arrest. Hospital changed protocol to allow Heparin up until time of surgery. Change in the procedure for the hospital. ii. Whether evidence of changed procedure after decedent‘s death should be admitted. iii. Yes it was feasible to give Heparin up until surgery, but court kept that out. iv. Lower court‘s exclusion was upheld based on MD rules of evidence: subsequent repairs inadmissible to prove negligence or culpable conduct. v. Feasibility was not controverted because it was possible to do, but not medical practice. vi. Feasible can mean: 1. Not economically of physically possible to do it. 2. Examples a. P falls down steps, says there was inadequate lighting, proven by low wattage bulbs. One week later, D replaces bulbs with higher wattage. Light bulb change is NOT admissible!! b. P gets into accident, hits head on side window. The next year, D car company puts in side airbags. This repair CANNOT be admitted to show D‘s prior negligence. c. Purchase car in 1999, added side air bags in 2000, accident in 2001. According to rule, evidence of added air bags can be admitted. But this is illogical!! Still discourages remedial repairs! d. Hypo 1 at 476: evidence of new tape excluded because it‘s subsequent remedial repair. e. 2: can be admitted to impeach, or show control. f. Local mechanic puts in new brakes i. 3rd parties actions – Rule only keeps out of evidence subsequent remedial measures taken by a third party because it isn‘t very probative against the defendant. Third party doesn‘t need protection from the rule because he‘s not a defendant. g. Post-accident Reports – Not subsequent remedial measures h. Remedial measures that are required – Car recalled for larger brakes, not because Ford motor company did it, but by reason of a government order. – Not a subsequent remedial measure because they don‘t need protection of the rule.

N. Payment of Medical Expenses, Liability Insurance, Collateral Source Rule 1. Generally

Evidence Class Notes
a.

21

2.

3.

4.

5.

When A offers or pays B‘s medical bills after an accident. Should this enter as evidence of A‘s negligence/liability? NO!! b. 409 is a Good Samaritan rule. Rule 409 a. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Rule 411 a. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as (examples) proof of agency, ownership, or control, or bias or prejudice of a witness. i. As a general rule, existence or non-existence of insurance should not be a factor that judge or jury should consider when deciding case. ii. Risk of prejudice too great to allow such evidence in for the purpose of liability. iii. Can use insurance evidence for some other reason. Examples a. A hits B and says ―I‘ll pay your car damages.‖ i. Does not count under Rule 409: not medical, etc. bills. 409 deals with body of the person, not the body of the car. ii. Under 408: can only keep it out under this rule if you can prove it was in the context of compromise. b. A hits B and says ―It‘s all my fault!‖ i. Rule 409: only considers payment, not admissions of liability. Rule 409 does not keep liability statements out. ii. Rule 408: probably not a compromise if A ran over to B and said this. Probably admissible. 408 only keeps it out if it‘s a compromise negotiation. 1. If D made this statement and also offered to pay medical expenses, Judge might redact statement so P would only be able to testify it was D‘s fault, and keep out medical expense statements. c. P takes stand after accident, says he cannot play his old games. D puts on witness, PI, who saw P playing tennis. D was employed by All State Insurance. i. Mention of insurance company can come in to show prejudice or bias of P. d. D says he didn‘t own the car. Sold car to C. D says he sold car in November, but P‘s atty can show D took out insurance in January of the next year. e. D killed wife and denies it. P shows D took out $1m insurance liability policy the week before. Mention of insurance is ok to show motive. Collateral Source Rule a. Not in the FRE b. P sues D for personal injury. P claims pain and suffering, medical expenses, and 6 months lost wages. But employer kept paying P that whole time, or he had worker‘s comp. c. CSR says even though P was paid by collateral source, P can still sue D and get that $ from D as well: double dip. Jury is not to be told boss kept paying him. Keep out of evidence any collateral sources of payment. d. This is to prevent T from getting benefit. T should still have to pay if he‘s really negligent. e. If P recovers, he may have to repay worker‘s comp. f. In PA, CSR does not apply in medical malpractice suits. g. (

IV. Hearsay A. What is Hearsay? 1. Generally a. Rule 602: Lack of Personal Knowledge: witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove… b. We don‘t want witnesses testifying about which they don‘t have knowledge. We want witnesses to testify re: things about which they have personal knowledge. We want to be able to examine and cross-examine the accuracy about what the witness says. Questioning becomes limited when hearsay is introduced. Not good! Cannot test truth or credibility of W‘s statement.

Evidence Class Notes

22

2.

3. 4.

c. HEAR – SAY: saying what I heard. Repetition of what someone else said. d. Generally, hearsay is not admissible. Exclude testimony about what another person told W. e. Test: whom do you really want on the stand to attest to a statement‘s truth? f. Witness = person in court, on stand, under oath, repeating what was said by someone else (on witness stand) g. Declarant = Person not on stand, who made the statement that is now being repeated by witness. h. Witness and declarant can be the same person!! Separated by time and space. i. Can‘t cross-examine a personal statement from a declarant. Questioning of declarant: what we really want to know. Hard/impossible without having declarant on stand. a. Exploration of declarant‘s perception i. Hearing, sight issues, mental conditions, were you paying attention. Ability to perceive. b. Exploration of declarant‘s memory i. What does declarant really remember about the event? What color was the car? What kind? Etc. c. Exploration of declarant‘s sincerity i. Is declarant a liar? Is declarant biased against D? d. Exploration of declarant‘s mode of expression/narration i. Personal frameworks, perceptions. Our concern lies with the ability to test the accuracy of W‘s statement. Rule 801 a. The following definitions apply under this article: i. (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. ii. (b) Declarant. A "declarant" is a person who makes a statement. iii. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (3 parts) iv. (Out of court statement used to prove the truth of the matter asserted) 1. Out of THIS court 2. Is the STATEMENT true, not what is being asserted in the case 3. Not a question of accuracy, but no way to question 4. Witness = person in court 5. Declarant = person who gave statement out of court v. What is a statement? 1. Any oral or written communication 2. Statements may be non-verbal, conduct as well 3. Rhetorical questions can be assertions vi. Is the jury being asked to believe the truth of the statements made. Is the content important? vii. Ex. Criminal case: Case is armed robbery. Testifying as to whether you said it viii. Ex. Doctor says you have a problem and you‘ll be out for 3 months 1. Witness says doctor said I had a broken leg 2. If suing because of depression ix. Custody hearing: judge must decide to give child to father or mother. Kid tells judge that daddy beats me and tried to kill me. Shows what the child thinks of the father, not whether the father actually beats the child. 1. Witness says defendant x. Responses to Hearsay objection 1. Not hearsay because either: a. Statement not being put in for truth of matter asserted, or b. Yes, it is hearsay, but it comes within an exception to the hearsay rule. xi. (d) Statements which are not hearsay. A statement is not hearsay if— 1. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is a. (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or b. (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or c. (C) one of identification of a person made after perceiving the person; or 2. (2) Admission by party-opponent. The statement is offered against a party and is

Evidence Class Notes
a. b. c. d.

23
(A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

e.

5.

Rule 802 a. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. i. Hearsay out, unless something else says it can come in ii. Other rules: FRCP 32: if W lives more than 100 miles from the courthouse you cannot compel him to come to the hearing. 1. Ex) W gave testimony, lives in Pittsburgh. Need him in Philadelphia to testify. He is thus unavailable. This creates an exception to the hearsay rule. 6. Common mistakes + clarifications a. ―Out of court‖ means not in this particular court/trial/matter. Statement could have been made in some other courtroom, just not this one. b. ―Matter asserted‖ refers to what was asserted in the out of court statement. Nothing to do with the matter asserted in court. c. ―offered in evidence to prove the truth of the matter asserted‖ means one part, not whole thing d. Doesn‘t matter whether the statement was made, question is whether it‘s reliable as being truthful e. Witness in court is not the one who saw the thing and testifying about what he knows. Declarant is one who made a statement of any kind, under oath or not, but is not making the statement here in this court. 7. ―Statement‖: a. Oral or written, or nonverbal conduct of a person if it is intended by the person as an assertion (pointing, shaking head). b. Single statement or series of statements c. Questions are not assertions d. Really a statement, declaration 8. ―Other than the one made by declarant by testifying at trial‖ a. 9. ―Offered in evidence to prove the truth of the matter asserted‖ a. You must examine the reason why a statement is made: is the jury being asked to believe the truth of the statements made out of court, or just the fact that they were made? b. Ex) ―Nice looking shirt‖: goes into evidence to SHOW said this; not to prove the truth of the matter. 10. Examples a. Event seen by declarant, who then described it to W, W is on stand 11. Cases a. Sir Walter Raleigh i. Original case for confrontation of witnesses b. Carney v. PARR i. Policeman said a witness informed him that the engine came without any lights and came fast 1. Just repeating what witness said 2. Officer said that the engine headlight was out (Not hearsay – in-court statement by a witness) ii. Hearsay excluded because of the damage it could/did cause the jury iii. Statement originally admitted to prove the truth of the matter asserted: Hearsay B. Non Hearsay (Statements not offered for their truth)

Evidence Class Notes
1.

24

2.

3.

4. 5.

Generally a. Statement made out of court can be added into evidence if: i. If fits into an exception ii. If it‘s not being used to prove the truth of the statement b. Four types of statements that may go into evidence b/c they are NOT going in for the truth of the matter asserted: i. Verbal Acts or Words of Independent Legal Significance 1. Important thing is the fact that the words were said 2. Ex. Parent has a car and 18 year old kid with driver‘s license. Parent handed keys to the kid. Kid drives car away and has an accident. Plaintiff wants to sue the kid and parent. Witness said that, as the parent was handing the keys to the kid, said go fill up the tank. Agent…liable a. If father says to son, you may borrow the car. Can‘t be sued for lending someone your car b. Father says to son, here is the car as a gift. No longer in ownership of father. ii. Impact upon person to whom it was made 1. To show state of mind of person to whom statement was made 2. Ex. Driver gets into an accident, brakes fail and D slammed into someone. P sues saying you didn‘t maintain your car properly. D says mechanic told me the brakes were good. iii. To show State of Mind of person who made the statement iv. Impeachment (contradiction) Independent Legal Significance a. Ex) W hears A offering to buy and B accepting offer. W can testify to that those statements occurred. b. When W hears A make a promise. Or when W hears A call B a thief: slander per se. A says hearsay, but the statement is only going in to show A made the statement. Truth of the matter is Irrelevant!! c. Ex) Wedding vows heard at a wedding. ―I do‖ creates a legal relationship. Truth of whether A actually loves, honors, cherishes B is irrelevant. d. Giving of engagement right: as a matter of law, what is the significance of this action? e. Statement can establish the legal relationship: ―go fill up my tank‖ or ―I am giving you the car‖ or ―you can borrow my car.‖ Circumstantial Evidence of state of mind of declarant because of what he heard a. State of mind must be an issue in the case b. When state of mind is at issue, then things said to that person can go in. NOT for the truth of the matter, but to show impact. c. Ex) A‘s mechanic said A‘s brakes were ok. A expected brakes to work. Statement comes in to show A‘s state of mind. To show state of mind of person who made the statement a. W says D said ―I am the Pope‖. Statement can go in to show D is a loon, not for the truth of the statement. Cases a. Estate of Murdock i. Both husband and wife die – children on both sides fighting over assets – Who died 1st? ii. When the use of a statement does require some dependence on the credibility of the declarant, then the statement is always hearsay. iii. Statement can go in if it‘s just going to prove a statement was said. iv. Not for the truth of what was said, just for the fact that he was talking b. Ries Pharmaceuticals (10th Cir. 1986) i. Ries suing bank because bank said they would guarantee payment for shipments to DMS ii. Independent legal significance. Sometimes you say something to make a legal contract c. Johnson v. Misericordia Hospital (Ct. App. WI 1980) i. Person is suing because they say Dr. Salinsky was a negligent doctor, and hospital was negligent in letting Salinsky work at the hospital. ii. Other reports of incompetence are not going in to prove incompetence. They are only going in to show these reports were out there, and could have been checked. iii. Reports go to show that hospital should have been on notice. d. Subramaniam v. Public Prosecutor (GB/Malaysia 1956) i. D says he carried around weapons because otherwise they would kill D. ii. D‘s statement goes to show the impact of statement: why he did what he did. e. Vinyard v. Vinyard Funeral Home (MO 1968)

Evidence Class Notes
f.

25

6.

i. 2 elements on a slip and fall case: that floor was actually slick and that owner knew about it. US v. Hernandez (5th Cir. 1995) i. Agent arrested D because agent got a phone call saying D was a drug dealer. Objection sustained over hearsay because issue was not the agent‘s state of mind, but rather the truth of the statement. g. City of Webster Groves (MO 1959) i. Cop repeating reading from speed radar gun. ii. In most cases, we are going to accept x-rays, radar guns, good clocks, etc. Examples 1. Cop stops 16 year old kid driving Mercedes. Must prove 2 things in a car theft: that D was driving it, and it did not belong to D and owner did not give D permission to drive. a. At trial, owner does not show up. BUT the cop is there to say owner‘s earlier statement that O did not give D permission to use car. b. D objects: hearsay. c. If O is not there, you cannot prove non-permission using the cop!! No matter how trustworthy the police officer is, etc. d. Must ask yourself: is it hearsay? YES if it’s going towards the TRUTH of the ASSERTION! e. To get a statement in, look for EXCEPTIONS within the FRE.

V. Exceptions to Hearsay Rule A. Former Testimony 1. Generally a. 804 exceptions: when declarant is unavailable b. 803 exceptions: when declarant‘s unavailability is immaterial c. Statements made under the exceptions are entered FOR THE TRUTH OF THE MATTER. They are let in because of necessity. d. Why have exceptions? e. Can only use 804(b) exceptions if DECLARANT is unavailable as a witness. i. PRIMA: Privilege, refusal to testify, infirm, (no) memory, accessibility (not). f. No depositions in criminal trials. Crawford addresses confrontation in criminal proceedings. See infra. 2. Rules: Rule 804: Hearsay Exceptions: Declarant Unavailable a. Rule 804(a) Definition of unavailability. "Unavailability of a witness" includes situations in which the declarant— i. (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or 1. When declarant made a prior statement, and may still be alive, but he refuses to testify because of self-incrimination (5th amendment privilege). ii. (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or 1. Persistent refusal to testify iii. (3) testifies to a lack of memory of the subject matter of the declarant's statement; or 1. When declarant testifies he does not remember iv. (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or 1. When Declarant is in the hospital, or is demented, etc. v. (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. 1. When declarant is absent from trial and you can‘t find him to serve him process b. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. i. Party cannot make the declarant unavailable so they won‘t be cross-examined at trial. Ex) Cannot send girlfriend, who testified in deposition, away for 6 months so she won‘t testify. c. Rule 804(b)(1): (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: i. (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another

Evidence Class Notes

26

proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. 1. Testimony at same or unrelated proceeding, deposition at same or unrelated proceeding 2. Party against whom it is being offered or predecessor in civil proceedings, and 3. Party had an opportunity and similar motive to develop the testimony by direct, cross, or redirect. ii. Elements: 1. W is unavailable 2. Must be opportunity for cross 3. Party‘s motive for cross in trial A is same for trial B 4. Party in trial A must be predecessor in interest of party in trial B. (Party in trial B must be successor in interest.) 3. Cases a. Travelers Fire Ins. v. Wright i. 2 brothers, JB and JC, owned building that burned down. Sue insurance co. ii. D says it doesn‘t have to pay because JB intentionally burned the building. iii. Previous case: state v. JC. JC prosecuted for arson. 2 witnesses: testified that JB lit the building. iv. Back at civil case: D wants those witnesses to testify again. But these witnesses refuse under 5th amendment privilege: now unavailable! v. D wants testimony from criminal case. Under state rule, it can come in. Under Federal Rule, it would be excluded because JC and JB are not predecessor/successor in interest. They are co-owners. vi. Requirements for former testimony: THIS IS A STATE RULE!!!! Not FRE. 1. W is unavailable 2. Must be opportunity for cross (here, there was at criminal case) 3. Party‘s motive for cross in trial A is the same for trial B 4. Same general issue must be involved in both proceedings. vii. Federal Rule is DIFFERENT: 1. W is unavailable 2. Must be opportunity for cross 3. Party‘s motive for cross in trial A is same for trial B 4. Party in trial A must be predecessor in interest of party in trial B. (Party in trial B must be successor in interest.) Examples of Former Testimony a. Discovery deposition of witness during pre-trial. By the time of trial, witness is dead. P wants to recount deposition at trial. D says hearsay, but this former testimony is allowed in: he was under oath, both sides were present at the depo and had the opportunity for cross examination. Example of predecessor in interest a. JB on trial for arsonist. JC buys his cause of action in the civil suit. JC in a successor in interest b. If JB sues the insurance company, JB dies, and JB‘s wife inherits his estate. She is a successor in interest. Hearsay will be admitted into evidence if you get it in under any exception to the hearsay rules a. Might be able to get it in under FRE or Federal Rules of Civil Procedure What if person testified at trial but court stenographer didn‘t transcribe notes. However, someone was there who heard the cross-examination. a. Can you let someone who heard what was said in court testify? YES

4.

5.

6. 7.

B. Dying Declarations (804(b)(2)) 1. Generally a. Statement under belief of impending death excepted from hearsay. Admitted when V believed that he was going to die. b. Admitted into evidence because of its supposed reliability c. Statement can come in ONLY if declarant is unavailable: don‘t necessarily have to have died. Statement comes from belief of impending death: reliability does not change if you end up living. d. Need a statement about why he is dying or the causes of it. e. Can be used by D as well as P/DA. i. Prosecutor can use it to name the person who shot the P and prosecute that person. ii. Defendant c f. Can be used in civil and criminal (homicide only) cases. Can‘t use it in any other criminal case.

Evidence Class Notes
g. h.

27

2.

3.

4.

Need to be saying something about the cause of his death. Imminent death: judge makes preliminary decision as to whether victim was likely to believe he faced imminent death. Judge looks to all circumstances. Judge is NOT bound by rules of evidence, except as to privileges (104a). i. Judge makes the call: does preponderance of the evidence show that V believed that he was about to die. 1. Ex) V‘s statement to A ―I‘m going to die. C did it not B.‖ V‘s statement to nurse ―I‘m fine.‖ Should judge let this in? B, who wants this to come in, will have to show by a preponderance of the evidence that this should come in, that V changed his mind and really believed he was going to die. 2. Say judge let evidence in. At trial, DA wants to put nurse on stand to testify to what she heard V say. DA can still introduce this evidence and let jury weigh this evidence against A‘s testimony as to what V said. 3. Ex) Witness was shot. Guy said he‘s dying, B shot me. Yes, dying declaration. 4. Ex) Get shot…say ―get me a priest‖ ―Anointing of the sick‖ – did the person think they were dying? 5. Ex) I‘m going fast, get me the doctor, John shot me – Judgment call ii. Jury has the duty to consider and weigh evidence. i. State v. Jensen i. Husband charged with killing his wife. Husband said wife committed suicide, and framed a letter 2 weeks before she died. ii. Feared her husband, thought he was going to kill her. If I die in the next couple weeks, turn this letter over. iii. Prosecutor wants to put in the 2-week old letter as a dying declaration. Her statement concerning causes of her death, concerned about imminent death. iv. Court says yes, dying declaration. Rule 804(b)(2): a. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: i. (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 1. Homicide or civil case. NOT attempted homicide, robbery, etc. 2. Statement about what caused declarant‘s believed impending death can come in. Cases a. Soles v. State (Fl. 1929) i. ―Soles shot me in the head and I have got to die.‖ Can this go in? ii. Judge has says it‘s part of evidence. Jury has to accept it as evidence, but does not have to believe it‘s true. iii. Judge has to consider two things: 1. Did person make statement when death was imminent? 2. Rule 602: witness may not testify to a matter unless he has personal knowledge. a. Not enough to believe you are dying…there must be enough to believe that the person had personal knowledge. (―Jack Smith told me Mary shot me‖ doesn‘t work). Examples a. A is car passenger, gets in accident, knows he‘s going to die. A says ―Driver was speeding!‖ This can come in because it relates to the cause of the death. BUT this can only come in if the person is unavailable. b. Tom shot, in hospital. ―Jim shot me.‖ No other evidence of impending death: hearsay. c. Cop comes in. ―Tom, you are dying.‖ Tom says ―Jim shot me.‖ Judge will have to make a determination whether Tom really believed it. d. Tom makes declaration: ―Tom owes me money.‖ Out: not related to the cause of death. e. ―Brother shot me. Glad I changed the policy.‖ First part can go in, but second statement does not have to do with cause of death.

C. Forfeiture by Wrongdoing 1. Generally

Evidence Class Notes
a.

28

2.

3.

Ex) Gangster‘s gf implicates gangster in many crimes in front of grand jury. G then whacks gf. DA wants to use gf‘s statements in front of grand jury. i. Testimony can go if DA can show the only reason that gf/witness is unavailable because bf engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. ii. Ie, if D got rid of W, testimony can come in. iii. Or, if D threatened W and W refused to testify, grand jury statement can come in. Refusal is part of unavailability. Rule 804(b)(6): Hearsay Exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Giles Case: Can‘t kill witness, make the witness unavailable, then say you can‘t let it in. a. Giles killed ex-girlfriend because ―she threatened to kill him and his new gf.‖ 3 weeks ago, ex-girlfriend said that he took out a knife and beat her. Statements made by ex-gf were testimonial statements, have a right of confrontation here. b. Can only put in prior statement without confrontation if he killed her or made her unavailable so she shouldn’t be a witness.

D. Spontaneous Exclamations 1. Generally a. Exclamations that go to the truth of the matter but are still allowed in. b. Excited utterances: i. See text at 1139-40. Also discusses unidentified declarants. ii. Statement has to have been made while still excited from event at issue. Time sensitive, but there‘s no exact time rule. 1. Circumstances will dictate whether judge can find under Rule 104(a) there‘s a preponderance of the evidence. iii. Can be a response to a question so long as declarant is still excited. iv. Statement must relate to the incident. v. Excited utterances can overlap with dying declarations. 1. Ex) ―I just got shot in the arm! John shot me!‖ not necessarily a dying declaration but can still go in because it is an excited utterance. vi. If person who made the statement is unidentified, can the DA still use the cop who talked with that unidentified person? c. Present sense impression: i. Does not require startling event. ii. Description or explanation of event: what declarant is seeing d. What can witness say about delcarant: i. Declarant‘s relationship to the person ii. Descriptions of emotions iii. How traumatic was it? iv. Judge will decide whether 2. Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (declarant may still be available, but out of court statement can come in.) a. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. i. Ie, declarant is describing the incident as declarant was perceiving it or immediately after ii. Don‘t have to be excited iii. Statement describes what the person saw, heard, etc. b. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (fairly time-sensitive) i. Ie, declarant blurted out a statement without a chance to reflect. Presumed accuracy, without faulty perception, no opportunity for fabricate story. ii. But, in reality people can and do lie excitedly. iii. Statement just has to relate to the event: does not have to describe the event and you don‘t have to participate in an event.

Evidence Class Notes
3.

29

4.

5. 6.

Rule 104(c): Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out to the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. Cases a. Truck Insurance v. Michling (Tex. 1963) (excited utterance) i. H works 30 miles from home. H tells wife he was injured at work. One month later, H dies because of brain hemorrhage. W wants workers‘ comp. Can W‘s retelling of H‘s statement come in? ii. Held: No excited utterance because only evidence was his own statement to his wife. Need independent evidence. This was bootstrapping. Work accident would then be proven by own hearsay statement. 1. Pure bootstrapping: only proof of incident would be hearsay statement. Not ok. 2. Partial bootstrapping: hearsay statement can go in, but it must be accompanied by other evidence that answers preliminary question for judge under 104(a) to decide by a preponderance of the evidence whether there is enough to go to the jury. 3. No bootstrapping: must use other proof exclusively. Cannot rely on statement at all. iii. Federal Rules: Can have bootstrapping! Rule 104(a): court not bound by rules of evidence (except as to privilege) when determining whether there is enough evidence of an incident. b. US v. Brown (3d Cir. 2001) (excited utterance) i. When witnesses were screaming at the cops saying there is a guy waving a gun threatening to shoot someone, was it an excited utterance? ii. Judge had Rule 104 hearing: look at rule 1. Statement must be related to startling event 2. While declarant was under stress of excitement, 3. That was caused by the event or condition iii. Read text re: unidentified declarants! Can we prove that this really happened just form the statements of these 2 unidentified males? Need totality of the circumstances. YES. c. State v. Jones (present sense perception) i. Trooper accused of sexually molesting motorist. Sped away without lights or siren at a high speed. They chase the trooper but he gets away. She wants statement of unidentified truckers talking about the high speed chase, as overheard by other state trooper. Officer heard trucker say ―look at that smokey the bear driving with no lights. Look at that small car?‖ over the CB radio. Truckers were giving the present sense impression of the event. Rule 803(1) 1. Giving statement as its happening. Out of court statement of what he said as he was watching it happen. No time for reflection or to formulate a lie. a. Event or condition b. Someone making a statement describing an event of condition c. Making the statement immediately before, during, or after the event 2. Difference: Present sense impression limited to describing the incident. Excited utterance doesn‘t just have to be about what they saw, but a statement relating to the event. ii. Court lets the conversation in: descriptive, contemporaneous in time. iii. Examples: 1. V says to passenger: ―he messed with me‖. This is hearsay, but excepted as excited utterance. iv. (Out of court statement used to prove the truth of the matter asserted) Hypos at 159 Rule 805: hearsay within hearsay. a. Hearsay included within hearsay is not excluded under hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in those rules.

E. Admissions 1. Generally a. Admission defined: i. Any out of court statement made by a party offered by a party opponent against the party making that statement. A makes statement. B wants to introduce A‘s statement against A. ii. P v. D: 1. D makes out of court statement 2. P may introduce any out of court statement made by the D against D. b. Not hearsay under federal rules, but could be thought of as exception to hearsay rule.

Evidence Class Notes

30

2.

3. 4.

i. Statement does not necessarily have to be trustworthy ii. Ordinary witness usually has to be competent, but declarant here does not need competency, or capacity (No requirement of mental capacity) iii. Do not need personal knowledge iv. Statement does not need to be against the person‘s interest when said but can be v. Admissions can contain opinions and conclusions of law vi. Availability of declarant is irrelevant c. Admission does not mean party ―admitted to‖ of confessed anything, not an admission to anything wrong. d. Admissions do not require personal knowledge! e. Jury must WEIGH these statements once in Rule 801(d)(2): A statement if not hearsay if: a. (2) Admission by party-opponent. The statement is offered against a party and is: i. (A) the party's own statement, in either an individual or a representative capacity or 1. P makes OOC statement, D wants to bring it in 2. Against natural persons, not an estate ii. (B) (adoptive admissions) a statement of which the party has manifested an adoption or belief in its truth, or 1. Some OOC statement made by 3d party and P or D adopts that statement 2. Adoption by gesture should be clear. a. (Implied adoption) Silence can be adoption: no denial can be admission b. Civil case and criminal case NOT in front of law enforcement personnel iii. (C) a statement by a person authorized by the party to make a statement concerning the subject, or 1. Look back to bootstrapping: did the person really have authorization to make the statement? Partial bootstrapping permitted. 2. See vi, infra: you can look to the person‘s statement to determine he had authority, but you will need some other indication that he was really authorized to speak/act on behalf of the entity. iv. (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or 1. If the statement is made during time of agency or employment, and is within the scope of your employment/agency, it can be included. 2. Covers ALL employees, even stock boy. 3. Employer does NOT need personal knowledge of employee 4. See vi, infra: re: bootstrapping. Need some additional evidence that what person said was in the scope of employment. v. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 1. Re: fraud. 2. Requirements: a. Must be evidence of conspiracy in existence i. If one member withdraws before conspiracy comes to fruition, and statement is made about that member after withdrawal, that statement does not come in. b. (D was a member and participant in conspiracy) D and declarant must be coconspirators c. Statement was made during the conspiracy i. If statement is made after conspiracy comes to fruition, statement does not come in under this rule. d. Statement was made in furtherance of the conspiracy 3. See vi, infra: need some additional evidence of conspiracy. vi. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Rule 106: Remainder of or Related Writings or Recorded Statements a. When a writing or recorded statements … Completeness Doctrine: a. If you admit part of a statement, you should be able to admit all of the statement. b. Admission only needs part of the statement: do not need complete statement!

Evidence Class Notes
5.

31

6.

c. Completeness Doctrine does not apply to oral statements because party can just testify Examples a. Driver A hits B. A says ―It‘s not my fault, my brakes failed!‖ B wants to put in A‘s other statement that A said ―I knew I should have fixed them.‖ b. D applied for loan, listed property as asset. P was injured on the property. D‘s loan application is an admission. c. Think drunk limo passenger, without glasses, making admissions against himself and conclusions of law d. Hypo 2 at 168: A introduced B as partner, B remained silent and shook hands with C. This would be adoptive acquiescence. e. Limo has heavy smoked windows. Occupant gets out and wreaks of alcohol and marijuana. He said my driver negligently ran the red light. No capacity to see because of drunkenness, marijuana, glasses, tinted windows. Cases a. Reed v. McCord (Ct. App. N.Y. 1899) Example of 801(d)(2)(a). i. P‘s husband killed by D company‘s machine. ii. Earlier, D said ―machine did it‖ so employee wasn‘t negligent iii. Now, P wants to bring this statement into trial iv. Does not matter that D had no personal knowledge. v. IF D said ―Someone else told me the machine did it‖ that would not be allowed: hearsay. Repeating someone else‘s statement. b. US v. Hoosier (6th Cir. 1976) Example of 801(d)(2)(b). i. D charged with bank robbery ii. W says he heard gf boasting about sacks of money, and D sat there and said nothing about it. iii. Court lets this silent admission in. c. State v. Carlson (Ore. 1991) Example of 801(d)(2)(b). i. D charged with drug use ii. Cops asked about tracks on arms. H said it was work injury. W said ―it‘s from drugs‖ and D just shook his head, silently. iii. D says this was denial, P said this was adoption/admission. iv. Judge has to make this call whether to allow in this admission by silence. 1. Rule 104(a): preponderance of evidence that this was more likely than not an admission by silence. 2. Rule 104(b): whether a reasonable JURY could conclude this was an admission by silence. v. Admissibility is a fact question for judge. vi. Civil case: judge makes this determination under 104(b). vii. Criminal case: judge makes this determination under 104(a). d. Mahlandt v. WCSRC (8th Cir. 1978) Example of 801(d)(2)(d). i. Kid gets into neighbor research center‘s yard (Poos), with chained wolf in yard. ii. Poos came back hours later, learned what happened, and left a note for his employer and also orally said to employer ―wolf bit child‖ iii. Poos is an employee of research center, a defendant and also made the statement. iv. Poos had no personal knowledge, BUT the note and statement can go in against Poos. v. Research Board meets: in meeting minutes: ―wolf bit boy.‖ This statement can go in against Research Center, but NOT Poos!! vi. Ie, Poos is an employee of the Research Company, and not vice versa. vii. They want to put into evidence 1. Note put on Sexton‘s door a. Admission 2. Statement Poos told Sexton the wolf bit the kid a. Admission – not hearsay 3. Statement in the minutes a. Can use it against employer but not employees but Poos didn‘t add it in. viii. NO ONE had personal knowledge!!! e. Bourjaily (U.S. 1987) Example of 801(d)(2)(e). i. (Greyhouse) Informant arranges sale of coke to Lenardo. Lenardo made statements against Bourjaily. Agree on sale terms. ii. Partial Bootstrapping burden of proof

Evidence Class Notes
1. Were statements made during and in furtherance of conspiracy? Judge will make this determination under 104(a). (Preponderance of the evidence)

32

F. Statements Against Interest 1. Generally a. Admissions ≠ statements against interest b. SAI = Statement made against declarant‘s interest, and declarant knows that it‘s against his interest, and declarant is unavailable. c. Statements against interest are ALWAYS statements of a non-party!! Statement of ANY PARTY is always allowed in as AN ADMISSION!!! So statements against interest come from non-parties. d. Person would not lie against his or her interest. e. Elements: i. Declarant must be unavailable. Rule 804. ii. Statement must have been against declarant‘s pecuniary or penal interest. iii. Reasonable person would not have made such statements because he would have been aware of detrimental interest 1. Judge makes the call under 104a: what would a reasonable person have said? (Did this person in this context reasonably believe statement was against his/her interest?) iv. Declarant is not a party to the proceedings v. Declarant had personal knowledge or belief of event at issue f. Judge has to look at all circumstances: was statement made believing it was FOR or AGAINST the declarant‘s interest? i. Declarant: ―I am the father!!‖ could be against or for d‘s interest g. Criminal Cases: i. Ex) DA v. D: third party admits to crime. Exculpation of D requires corroborating evidence that clearly indicates the trustworthiness of the statement. h. 3 Views on the structure of statements. i. Wigmore: if any part of the statement is against your interest, then the whole statement is against your interest. ii. Look at whole statement. If more of the statement is against interest, then the statement is against interest. If less of the statement is against interest, then the statement is not against declarant‘s interest. iii. Edit statement: parts against interest allowed in, parts not against interest are left out 2. Rule 804 (b): Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. 3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. i. Statement is against your interest: monetary loss, invalidates claim, subjects you to criminal charges, and you KNOW the statement is against your interest ii. Criminal case: requires additional evidence going to the trustworthiness of the statement iii. Unavailability iv. Perceived as against interest at the time of saying it. 3. Examples a. P v. D: D‘s passenger says he grabbed the wheel and that caused accident. This is against passenger‘s pecuniary interest because he is now exposed. D can use passenger‘s statement against interest in his defense. 4. Cases a. McKelvey v. Insurance (Ohio 1957) i. McKelvey wants to use signed confessions from employees saying they stole the property ii. McK suing insurance company for return of property. iii. Employees here are unavailable, statements were against their interest iv. Hearsay: goes to the truth of the matter asserted. BUT admissible because this is an exception to the hearsay rule under 804. b. US v. Barrett (1st Cir. 1976)

Evidence Class Notes

33

c.

i. Barrett (D) charged with theft. Melvin (W) talked with some Tilly (declarant) who said Barrett was not involved and that Tilly was involved. ii. How much of the statement can come in? Going to have to offer some other corroborating evidence that Tilly is not just trying to help out Barrett. iii. What if Tilly said ―I did it (statement against interest) and my accomplice was Barrett.‖ 1. No conspiracy: crime already over 2. Inculpation, not exculpation, here. 3. Court will say there must be other good evidence to inculpate, not just to exculpate Williamson v. US (1994) i. Harrison driving, cops find coke. H said he was 1) transporting the cocaine and 2) doing it for Williamson. What do you do with the 2 parts of the statement? ii. Court says to exclude those parts that do not directly implicate declarant.

G. State of Mind 1. Generally a. Earlier consideration of state of mind: non hearsay to show state of mind of person hearing the statement. b. Applies to a witness‘s statement about what a declarant said c. Here, we are considering state of mind of the speaker. Determine state of mind from what the person said. d. Must be declarant‘s recollection of a ―then existing‖ condition, not a memory of that condition. Recollection of past feeling becomes less trustworthy, apparently. 1. Witness: ―The declarant said: ‗I feel pain.‘‖ 2. Witness: ―The declarant said: ‗I love him.‘‖ 3. Not: Witness: ―The declarant said: ‗I felt sick yesterday.‘‖ e. Allowed in even if it‘s a present intention to do something in the future. 2. Examples a. P in car accident. Daughter comes in as witness, asked how mother felt. Daughter/Witness says ―mother woke every day saying her back hurt.‖ Court is being asked to accept this statement as mother‘s then existing physical condition: this is hearsay, but not excluded even if declarant is available. b. Different statement: W recalls that mom said: ―Yesterday my back was hurting.‖ This is not about the then existing statement mind! It‘s a memory of yesterday‘s feeling!! 3. Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (OUT OF COURT STATEMENTS BY DECLARANT TO PROVE TRUTH OF THE MATTER) b. (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. c. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 1. If statement is made for purposes of medical treatment or diagnosis to a health care provider, then these statements can come in 2. Ex) Go into doctor and say: ―my head really hurts b/c I hit it yesterday.‖ Pt telling physician how Pt was injured so doc can better diagnose. 1. Statement that you banged your head yesterday is NOT admissible under 803(3), but it IS allowed in under 803(4). 3. Did statement have to do with diagnosis or treatment, and if not is it irrelevant? 4. Statement can be to anyone reasonably related to treatment or diagnosis, not just physician. 5. Statement here is from patient to health care provider. 6. Sometimes, someone who is also present can tell the doctor how patient was injured. Ie, passenger can tell doctor driver banged his head on the steering wheel if driver does not remember. Depends on circumstances! 7. Doesn‘t have to be treating physician. 4. Rule 105: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. a. Judge makes limiting statement to jury. 5. Cases

Evidence Class Notes
a.

34

6.

7.

Adkins v. Brett (Ca. 1920) Rule 803(3). 1. Husband suing D (Lover) for sleeping with wife. 2. H wanted to use wife‘s statements: ―I no longer love you. I love Lover.‖ 3. This statement goes to the truth of the matter asserted: for the truth that W no longer loved H. 4. W‘s statements show her then existing state of mind: can go in. 5. Other statement: ―I love him because he took me out to dinner, bought me flowers, took me out in the auto, gave me a good time.‖ THESE statements are NOT admissible now! They are not re: existing state of mind. Wife repeated events that Lover had performed in the past. Rule does not include ―Statement of memory or belief‖ of event in the past to prove a present event. 6. Judge might redact the statement to exclude parts about past events with the Lover. While these statements might be relevant, they are past actions not going to then present state of mind. b. Mutual Life Insurance v. Hillmon (1892) 1. Held: Use of hearsay is allowed when evidence of present intent proves future conduct. 2. Ex) Person wrote letter saying ―I am going to kill myself‖ which is used later in D‘s defense that he did not kill this person. 3. Mrs. Hillmon suing life insurance company to collect on husband‘s death while he was on a trip with Walters. Company won‘t pay because there‘s no proof that the body is Hillmon: Co. thinks it is Walters. 4. Walters wrote letters to fiancée saying he intended to go to Crooked Creek with Hillmon. These letters do not actually show he went to Crooked Creek, but show his intentions. 5. Using intent to show subsequent conduct. Letters = present intent to go to Crooked Creek. 6. If letter had said ―yesterday we reached crooked creek‖ that would be memory = not allowed in, even though it is probably more probative than an indication of future intent. c. Shepard v. US (1933) 1. Courts have been unwilling to allow present state of mind based on a prior event. 2. Wife held up bottle of whiskey ―This is what I had been drinking. I feel horrible. It tasted and smelled funny. My husband poisoned me.‖ Then she died. 3. Wife cannot use present state of mind to prove past event (that husband poisoned me). 4. If she was still alive, this statement could be admitted because she could be cross examined. 5. Court would allow in ―I feel horrible‖ but not ―My husband poisoned me.‖ 6. If wife reasonably believed she was dying, statement could go in under dying declaration. d. US v. Pheaster (9th Cir. 1976) 1. One step beyond Hillmon. 2. Larry intended to meet Angelo in the parking lot and told his friends in the restaurant. Does this go to who Angelo was there in the lot (to kidnap Larry)? 3. Court allowed statement here. More liberal than most courts. 4. ―I intend to meet X‖: approach this kind of skepticism. 5. Statement of intent to perform an act with a particular person may be used to prove he did it with that particular person. e. Zippo 1. Attempt to enter hearsay statement of then existing condition. 2. Zippo said Rogers is selling knock offs. Z wants so show how people are misled by R‘s sales. 3. Z wants to conduct a survey of the public: but this is hearsay. 4. Court lets the statements/survey in because it is a statement of then existing state of mind of the person taking the survey Hypos at 233 (under Rule 803(3)) a. Wife sues D for killing H. W: ―I loved him, etc.‖ D brings witness, H‘s partner: ―H said he hated his wife.‖ 1. Relevant? Yes: goes to damages. 2. Hearsay? Yes (going in for the truth of the matter), but excepted as then existing state of mind. b. Same facts, but witness says H said: ―3 months ago I caught my wife cheating, and this has turned my love into hate!‖ 1. Hate part admissible as above, but part about 3 months ago not a then existing state of mind, it‘s a memory. c. ―I am sad that my brother was killed 3 years ago.‖ The event may have happened 3 years ago, but the statement relates the speaker‘s current state of mind. Examples a. 803(4): P says ―Doctor, I fell on a banana peel on the sidewalk.‖ Is the fact of the banana peel allowed in? 1. It could be, to show Patient did not fall for some other reason (Parkinson‘s, vertigo, etc.)

Evidence Class Notes
b. Son cuts hand, tells mother. Mother can tell doctor what happened.

35

H. Physical Condition, Medical Diagnosis or Treatment 1. Generally a. See section supra. 2. Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (3): Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. b. (4): Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 1. Statement made because you want to get treated. Statement made to a doctor from a declarant. 2. Purpose: Not going to lie to the doctor…you want to be treated properly. 3. Doctors are hearsay exception machines 4. It needs to be necessary for the doctor to have known how the injury happened. Like a knife (tetanus) and dog bite (rabies) 5. Child who has been sexually abused. Child says that my dad did X, Y, and Z. Important that doctor be able to repeat who did it. Relevant for purposes for diagnosis and treatment (psychologist, STDs) I. Prior Identification 1. Generally a. Not hearsay, although it‘s a repetition of what you or someone else said out of court for the truth of the matter. 2. Rule 801(d)(1)(C): (d) Statements which are not hearsay. A statement is not hearsay ifa. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is: i. (C) One of identification of a person made after perceiving the person. 1. Ex) Lineup = out of court identification made prior to trial. A identifies D at lineup, then at trial wants to repeat his identification of D. This is not hearsay. 2. Or, police officer can repeat statement of identification that victim made at the jailhouse before trial. 3. This works when declarant is available for cross examination!!! 4. This rule allows identification of a person, not an item. 5. More suggestive in a courtroom than anywhere else ii. Elements 1. ID of a person 2. Testifies at trial 3. Is available for cross-ex 4. Admissible even though declarant cannot now remember or denies having made identification a. Officer can verify that he made a pre-trial identification and identify the guy 5. Admissible independent of in-court identification 6. Admissible even if in-court ID is inconsistent 3. Cases a. Owens i. O charged with attacking counselor in prison then suffers memory loss. Counselor says in hospital ―It was Owens.‖ ii. At trial, Counselor remembered neither the person whom he identified, nor the FBI agent, but remembered he did identify someone. iii. FBI agent took stand to testify to what Counselor said. But this is not the declarant. iv. Defense says Counselor was physically there, but not mentally. Statement should not be allowed in because counselor is not available for cross-examination. v. SCALIA says: no. Not really unavailable. Unavailability does not apply to this rule!!! Unavailability applies to Rule 804. Rule 801 does not refer to unavailability.

Evidence Class Notes
vi. IF YOU CAN ASK QUESTIONS, THEN THAT‘S GOOD ENOUGH TO SATISFY BEING AVAILABLE FOR CROSS-EXAMINATION

36

J. Present Recollection Refreshed 1. Generally a. What happens when witness takes stand and doesn‘t really remember what happened. i. Refresh memory, wake up someone‘s memory. ii. This is not hearsay because it does not go to the truth of the matter asserted. b. Use of item that may refresh a witness‘s recollection. Usually anything can be used to refresh recollection. i. Picture of the intersection where the accident occurred. ii. Item does not have to be in evidence. iii. Any item that would help witness recall instance. iv. Ex) Cop on stand re-reading police report. Or, look at this memo that you wrote on that day. c. Other side will want to examine this item. They will generally have the right to look at it, and look for differences. i. Questions asked by the other side used to impeach W‘s testimony: but does not go to the truth of the matter. d. Judge, under Rule 104(a) will decide whether the item refreshed the memory, or if it‘s being used for to suggest the answer to the witness. e. Practically: you mark an item for identification, not evidence. 2. Rule 612: Except as otherwise provided in criminal proceedings by 18 U.S.C. § 3500, if a witness uses a writing to refresh memory for the purpose of testifying, either— a. (1) while testifying, or b. (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, c. (Then) an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 3. Leading questions: a. A question that suggests the answer. b. ―You were driving within the speed limit‖ ―Yes‖ c. 611(c): leading questions should not be used on direct examination, except as may be necessary to develop the witness‘s testimony. 4. Cases a. Baker v. State (Ct. App. Md. 1977) i. Baker accused of robbery and murder. ii. Court says you can use anything to refresh recollection, even the other officer‘s report. So long as the item refreshes your recollection, you are testifying from your memory, not the item. K. Past Recollection Recorded 1. Generally a. Some document that has been recorded that we want to read to jury and being asserted for the truth of the matter asserted. Thus, it is hearsay. b. What if witness was told of something and W did not have firsthand knowledge? This would have to come in under another exception. i. Ex) Witness was told by V that other car went thru light. Witness writes it down. W on stand, doesn‘t really remember what happened. V‘s statement becomes hearsay within hearsay. But his prior recording could come in under excited utterance exception. ii. Rule 805: Hearsay within Hearsay: H w/in H is not excluded under hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. 2. Rule 803(5): The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown

Evidence Class Notes

37

to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. i. Memorandum or document adopted by witness and done by him ii. Witness had knowledge about the matter but now does not iii. Matter was recorded when it was fresh in W‘s memory iv. Recording is accurate v. Party A can read statement into evidence, but cannot carry the evidence into the jury room. Ie, recording is really a replacement for a witness‘s oral testimony. 3. Cases a. Cmwlth. v. Cargo (Pa.) i. Kid witness suddenly has no recollection of what happened. ii. Cops bring in kid‘s prior statement. Is this considered hearsay?

L. Business Records: Rule 803(6). 1. Generally a. B goes into store, buys shirt, and clerk notes the sale in the purchase book that is regularly kept. This also applies to credit card transactions. 2. Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (6): Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. i. Some sort of data compilation in any form, kept in regular course of business and in the regular practice of that business, made by a person with knowledge of transaction. ii. Testimony can be made by custodian or other qualified witness, or by certification in compliance with FRE Rules of authentication iii. Each person in the chain of information must have a duty to report. iv. May include opinions. b. Rule 803(7): Absence of entry in records kept in accordance with the provisions of ¶ (6). i. Known as ―negative evidence‖ ii. Ex) Cop stops driver, says he rented car from Hertz. Cop contacts Hertz, and they don‘t have evidence or record of the rental. This can go into evidence. iii. Take an omission or absence and make inference. 3. Cases a. Johnson v. Lutz (Ct. App. NY 1930) i. Bystanders tell cop about accident, cop writes report. ii. Cop has duty to report, but the bystanders do not. iii. Must find hearsay exception!!! iv. Bystanders‘ statement is hearsay. Try and get it in under excited utterance or present sense impression. v. What if Cop A tells Cop B what happened? Cop A has a duty to report here, tells another Cop as a regular part of business. Cop A has a duty to report, and Cop B has a duty to record statement accurately. b. Palmer v. Hoffman (1943) i. Train wreck, engineer makes report about accident then dies before trial. ii. RR (defendant) wants to put in report to show it was not negligent. iii. DOUGLAS does not permit report into evidence. Business records are usually trustworthy. Report here was made in anticipation of litigation: engineer may have written report in light most favorable to him. iv. Held: reports made in anticipation of litigation cannot be used as business records. v. What if P wanted to put in report? Then it CAN go in under admissions b/c it‘s the other side. c. Yates v. Bair Transport (S.D.N.Y. 1965)

Evidence Class Notes

38

i. P wanted doctors‘ reports admitted and D‘s IMEs. Weren‘t IMEs made in anticipation of litigation? P can use D‘s reports, even though they were made in anticipation of litigation. 4. Examples a. Hospital Records are generally business records. Ex) Nurse, who has a duty to maintain records, takes patient‘s temp. Or, doctor who also has a duty, records his opinion that the patient‘s BP was high. This opinion is allowed in as business record. b. V comes into ER, saying ―I was shot!‖ V does not have a duty to report things for the hospital. But the triage nurse has a duty to report. This is hearsay within hearsay: admissible under Rule 805. c. Hypos at 260-61 i. See text. ii. Admissions: entered by opposing party.

M. Public Records and Reports: Rule 803(8), (10). 1. Generally a. This relates to government entities that have a duty to report. b. Government agencies are supposedly trustworthy. We must have something to help us recollect evidence. c. These are hearsay statements. d. This differs from business records exception: i. Business Records require ―at or near the time‖ ii. Under BR, you can put in hearsay statements into business records so long as they fit within a hearsay exception. 2. Rule 803: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (8): Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: i. (A) the activities of the office or agency, or 1. This applies in both criminal and civil cases. 2. Ex) Payroll records, HR records, expense sheets, tax forms, FBI fingerprints, records of stolen cars. 3. Authentication under 902(4). ii. (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or 1. Matters observed by an officer, imposed by duty or law 2. Ie, person who made the entry had a duty to report 3. Ex) Officer has duty to record weather, or measure something 4. Applies to civil and criminal, but not in criminal cases where the matter is observed by cops or other law enforcement. Cannot use report of cop or other law enforcement. Statement in police report not allowed in: D needs confrontation. a. But, most courts will allow D to use the evidence in the police report if it helps him out b. Ex) if the only evidence you have is the police report, case is dropped. Constitutional right of confrontation denied otherwise. 5. Statements by third parties do not come under the rule. Third parties do not have a duty to report imposed by law. iii. (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 1. Civil case or case against government in criminal case, unless there is a lack of trustworthiness in source. 2. Ex) Fire marshal making a factual finding based on his/her investigation. 3. Opinions allowed if repot contains factual findings. (Beech) a. Judge, under 104(a), will decide if it can come in. 4. Be sure to consider trustworthiness of source. Trustworthiness applies to a,b,c, but it really comes into play under C. b. (10): Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency,

Evidence Class Notes

39

evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. 3. Cases a. Beech v. Rainey i. Plane crash. D says it was pilot error, P said malfunction. ii. JAG officer testified that it was pilot error: opinion. iii. SC said opinion is admissible so long as report also contains factual findings.

4.

5.

6.

Hypos a. P tells doc he hit his head on bulldozer. Doc writes in record what pt told him. Pt dies. P wants to enter evidence that pt was hit on head. i. Admissible as business record? No. But this is hearsay within hearsay: get patient‘s statement in via medical diagnosis. b. Hospital accused of negligence. At 8am, nurse wrote in report decedent had bruise on his head that he suffered at 4am, caused by fall. i. Nurse has duty to report bruise on head. ii. Cause of bruise: she‘s an employee making an admission. Admissions do not need personal knowledge!! Rule 106: Remainder of or Related Writings or recorded statements a. Rule of completeness: complete statements b. Relates to writings Rule 105: Limited Admissibility a. Applies to any statement b. Redaction by judge: slicing down of statement

N. Residual Exception 1. Generally a. You can have an exception to hearsay rule that does not come within 803 or 804. 2. Rule 807: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that: a. (A) the statement is offered as evidence of a material fact; b. (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and c. (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. d. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. i. Prior notice 3. Cases a. Turbyfill and Hypos i. P pours gas into engine. Car explodes. Anderson, EE of D, writes everything down 3 hours later. ii. Anderson dies, but we have his statement. D wants to put it into evidence. iii. Can we get this statement in? 1. Not excited utterance: 3 hours later 2. Not present sense impression: 3 hours later 3. Not Past recollection recorded because declarant is not there to say he had past recollection but now does not. 4. Not Business record because there‘s no information suggesting this was a regular business practice 5. Not Admission: For admission, P (adverse party) would want the evidence admitted. Here it‘s D. 6. Not dying declaration: no fear of imminent death. O. Miscellaneous Exceptions 1. Generally 2. Rule 803(9), Rule 803(14), Rule 803(11), (12), Rule 803(16), Rule 803(17)

Evidence Class Notes
VI. Competency of Witnesses 1.

40

2.

3.

4.

5. 6.

7.

8.

Generally a. Unqualified to testify b. There is a presumption of competency, until judge determines otherwise under 104(a). c. Basic incompetence: i. Reason by defect in mental ability 1. Can include youth, immaturity 2. Insane person a. Insane people can testify under the rules, until the judge determine otherwise Rule 601: General Rule of Competence: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. a. Anyone can be a witness, unless otherwise excluded. b. BUT if case is in federal court but it‘s a state law case, state law rules. i. PA Dead Man‘s Act: Rule 602: Lack of Personal Knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. a. Person testifying must have personal knowledge. Plus exceptions to hearsay. Rule 603: Oath or Affirmation: Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. a. Exception referred to under 601. Rule 604: Interpreters: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. Rule 605: Competency of Judge as Witness: The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. a. Presiding judge may not testify in that trial. Rule 606: Competency of Juror as Witness: a. (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. b. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. i. When something happens during jury deliberations that you want to know about later. 1. Will not allow juror to testify how deliberations went. 2. Court will not upset verdicts based on deliberations. ii. Court may look into verdict if jurors were reading newspapers, or going to scene of crime, etc. Cases a. Rock v. Arkansas (1987) i. Hypnosis case. ii. Criminal case: Court must decide on a case by case basis whether to admit hypnotic statements.

VII. Order of Presenting Evidence, Scope of Cross Examination, Form of Questions A. Burden of Proof and Presumptions 1. Generally a. Two types of burden of proof: i. Burden of production:

Evidence Class Notes
1.

41

b.

Do I have enough elements in the case from which a jury could conclude that I proved case beyond preponderance of evidence? 2. If not, case closed, SJ 3. Types of evidence: a. Direct b. Circumstantial c. Stipulations d. Admission in the pleadings e. Judicial notice f. Presumptions i. Conclusive presumption: presume that we accept that certain things are true ii. Rebuttable presumption: presumed that something happened, but you can overcome that presumption. ii. Burden of persuasion 1. I have enough evidence of what I have to prove, but will these pieces of evidence persuade the trier of fact to the requisite degree? Overcoming presumptions i. How to overcome a conclusive presumption against you 1. Attack the fact upon which the presumption is based 2. Ex) Child under 7 presumed incompetent to testify. Show child is not under seven. 3. Ex) Presumption that marrieds cannot testify against each other. Show the parties are not married. ii. Overcoming a rebuttable presumption 1. Attack the fact or the presumption itself 2. Ex) Take car to lot, comes back dinged. Presumption that the parking people dented it. Garage can say: it wasn‘t really there, done by other driver, damage already there, etc. iii. Rule 301: civil action burden shifting 1. Once the other side comes up with contrary evidence, presumption no longer exists and jury can consider everything. 2. If there‘s evidence on both sides, jury will decide which way the presumption will fall. 3. When D rebuts P‘s presumption, the ―bubble bursts‖ and jury can find for either side. 4. If there‘s conflicting evidence on both sides, rendering no presumption, jury decides, burden on plaintiff. iv. Rule 302: rules may differ in states

2.

Schikore v. Bankamerica i. Question over who had burden … ? ii. B. Order of Presenting Evidence 1. Generally a. Opening statement: big picture b. Plaintiff first: witnesses i. Defendant can cross P‘s witnesses c. Defense next: puts on witnesses i. P can cross D‘s witnesses d. Closing arguments e. (Objections: see text at 62: examples of trial objections.) 2. Rule 611: a. Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. i. Judge can pretty much do what s/he wants, but usually follows tradition ii. Embarrassing questions: court can decide that questions may be asked just to humiliate witness. 1. Judge can say ―enough‖

Cases a.

Evidence Class Notes
b.

42

Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. i. Can cross examine about things that were in direct, or that challenges his credibility c. Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. i. Normally, on direct, you cannot use leading questions ii. On cross, you can and will use leading questions iii. Leading question suggests the answer in the question. Witness just has to agree with the question. Think ―Amen!‖ Yes/no answer. iv. Non leading question: who, what, where, when, why, how. v. Sometimes leading questions are allowed: ―You went to VLS, right?‖ ―Yes‖. Or, when dealing with children, etc., when you just want to move trial along. vi. P calls witness who is D‘s best friend. This witness is a hostile witness: can use leading questions here. 3. Direct testimony a. Party will want to build W‘s character (but not too much: see rule 608) C. Scope of Cross-Examination 1. See Rule 611(b) D. Form of Questions 1. See Rule 611(c) E. Rulings on Evidence 1. Rule 103: Rulings on evidence. a. Objection i. General objection = relevancy ii. Specific objection = must state correct ground for objection iii. If you want to claim error by judge (like he let in hearsay testimony), you must object and state ―hearsay‖ or you will not have cast the hook for appeal. b. Offer of proof i. You can place into evidence an offer of proof when the judge excluded evidence at trial. Attorney tells the judge what the evidence/testimony the witness would have stated had the judge allowed him. ii. Applies when judge excludes some evidence at trial 2. Rule 105: Limited Admissibility (Slicing down a document) a. When evidence which is admissible to one party or one purpose --- the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. i. Attorney must make the request!!! ii. When there is some admissible and other non-admissible evidence in one document 3. Rule 106: Remainder of or Related Writings or Recorded Statements a. Only relates to rightness of recorded documents b. When a part of a document is put into evidence, the opposing party can ask that they be presented the rest of the document so the jury can understand the context of the document 4. Rule 104: Questions of Admissibility Generally a. Is there a foundation upon which witness can allow witness to give an answer? b. Before actual testimony is given party must be able to show witness is entitled to give that testimony VIII. Impeachment and Rehabilitation of Witnesses A. Impeachment in General 1. Intro a. Hearsay: out of court statement made now in court, asking the jury to accept the truth of the matter. That the out of court statement is true. b. Impeachment doesn‘t have to do with going to the truth of the matter. c. Rather, Impeachment deals with the undermining of the probative value of the testimony already given: casting negative light on witness‘s credibility.

Evidence Class Notes
d.

43

2.

3.

4.

5.

IMPEACHMENT is NOT HEARSAY because it does NOT GO TO THE TRUTH OF THE MATTER. Out of court statement used for another reason. i. Ex) W on direct: I saw D‘s car had a green light. On cross, attorney says: didn‘t you say last week that D had a red light? Jury CANNOT use the cross statement for the truth of the matter, but the jury CAN use that out of court statement to weigh witness‘s credibility. Reasons for attack a. Ability to tell the truth i. Bad memory ii. Contradicting them on the facts iii. Prior inconsistent statements b. Willingness (friend, enemy, relative) i. Motive to falsify ii. Personal may be related to one of the parties c. Character for Truthfulness: Rule 608 d. Prior crimes: Rule 609 Ways to impeach a. Show untrustworthiness i. Bias, b. Attack untrusworthiness for truth c. Contradiction by other witness d. Prior inconsistent statements e. Defect in memory or perception Collateral vs. non-collateral a. Collateral: evidence has something to do with the case, but is immaterial (simply contradicting another statement). If information is collateral, you cannot use extrinsic evidence to contradict that evidence. Don‘t want to get into unimportant issues. i. May be able to ask a few cross-examination questions with a collateral issue. ii. Ex) A was at the bar, said he drank a Coke. Cannot bring in bartender (extrinsic evidence) to say A was drinking Pepsi. iii. BUT if witness was drinking BEER and NOT COKE: that‘s non-collateral: goes to show witness‘s competency to recollect b. Non-collateral: material evidence, going directly to and related to main subject of the case, OR an important aspect of the case (truth of testimony or credibility of witness on significant matter). If information is noncollateral, you can bring is extrinsic evidence to contradict that evidence. i. Ex) A said he saw a green car. But this could be important as to whether A recollected the event clearly. ii. Evidence of bias, hatred, affinity, etc. towards someone would be non-collateral evidence. c. Extrinsic Evidence i. Evidence coming from someone‘s mouth other that the one you are trying to impeach Cases a. Susanna i. Rule 615: Sequestration: Exclusion of witnesses: At request of a party, the court can order witnesses excluded so they cannot hear the testimony of other witnesses.

B. Bias, Interest or Motive 1. Generally a. Motive to lie…Interest in outcome of the case b. If witness is biased or interested in the outcome of the case, this may affect W‘s testimony c. If W has this bias, opposing attorney will want to show this d. Ex) W and D are friends, enemies, part of the same organization e. Relevancy also plays a part: still have to look at Rule 403: how probative is this evidence of bias? How prejudicial will the evidence be if we let in the evidence? f. Real bias is Non-collateral and we can prove it through extrinsic evidence. 2. Cases a. US v. Abel ( ) i. Abel on trial for bank robbery. DA wants to put on Ehle, D wants to put on Mills. Mills says Ehle is going to lie on the stand because he is going to get a lighter sentence.

Evidence Class Notes

44

ii. DA wants to show Mills has a reason for testifying against Ehle: Mills and Abel belong to the same prison gang (Aryan brotherhood). Ie, DA trying to show Mills is biased because he and Abel are in the same gang. iii. Rule 608 Character of Truthfulness iv. Extrinsic evidence here: can use extrinsic evidence to show bias v. Judge has to make Rule 403 balancing: name Aryan Brotherhood very prejudicial. Judge allowed evidence that Abel and Mills were in the same murderous group, but did not let DA call it Aryan Bros. 3. Hypos a. A suing police and city for false imprisonment. B testifying for A against police. City wants to put on evidence that B had slashed police tires and charged with vandalism. Can this extrinsic evidence come in? i. Non-collateral because it shows that B does not like the city: bias against the city and the police in general. Extrinsic evidence showing this factor allowed to come in.

C. Defect in Memory or Perception 1. Generally a. Another non-collateral issue b. When you want to show witness has a defect in memory or perception: poor sight, Alzheimer‘s, W wasn‘t there that day, etc. c. Allowed to bring in extrinsic evidence to show defect in memory or perception as non-collateral issue if it‘s relevant. 2. Cases a. Lindstrom i. D charged with insurance fraud. W is whistleblower. D wanted to show W had mental instability: drug problems, tried to get lover‘s wife killed, attempted suicide. ii. Can D bring in extrinsic evidence about these issues? Trial court kept evidence of all this out, but appeals court said this was non-collateral because evidence goes to her mental defects (or motive): can use extrinsic evidence. iii. THIS IS NOT Rule 608: strictly a question of defects/mental impairment here. D. Contradiction 1. Generally a. Evidence of contradictory statements from witness allowed. b. To show witness is lying or mistaken on a point c. Extrinsic evidence allowed in to show contradiction if it is a non-collateral issue. Depends on the situation. Is the contradiction relevant? Must argue to the judge. 2. Hypos a. W says it was a red car, D says blue car. Is the car color collateral or non collateral? Must argue your side, whether you want or do not want extrinsic evidence to come in. b. W to an accident says he was coming from the movie, but another W2 can testify that W was coming from a poker game. Does it matter in this case? Probably not. Drinking not an issue. c. W to accident says he was coming from movie, but W2 says W was coming from P‘s sister‘s house. Noncollateral matter because it could show bias. d. W says movie, W2 says W was at a bar. Can you draw a drinking inference ?? e. Always remember Rule 403 prejudice!!!! 3. Cases a. Oswalt i. Robbery in Seattle 7/14 ii. Bar owner said Oswalt was in Portland 7/14, and May-June-July iii. DA wants to put on contradictory witness to say Oswalt was in Seattle on June 12 iv. D argues this is collateral, DA says it‘s non-collateral: if Bar owner was mistaken once, he could be mistaken again. v. Court said this was collateral. vi. Cross examination of witness (here, bar owner) is permitted at the discretion of the court. b. In re: silicone Breast Implant Litigation i. P suing doctor because P had breast implants and suing because something went wrong, the doctor didn‘t advise of the risks, and therefore she didn‘t give informed consent ii. P says that other women will testify that the doctor never told them of the risks of breast implants

Evidence Class Notes

45

iii. Rule 404 (Character) – Rule 406 (habit). iv. Doc might say: (1) I remember explaining everything (Character – inadmissible), (2) don‘t specifically know whether I told her, I don‘t go by checklists (Still character), (3) doctor says I don‘t remember speaking with her, but in each case I tekk me specifically the dangers and risks of the operation (can bring in the 11 people – directly contradicting what she‘s saying)

E. Prior Inconsistent Statements 1. Generally a. Ex) W says that D had the red light, but tomorrow W says D had the green light. b. Prior statement is not evidence of what he said earlier is true. Prior statement undermines what W says today in court. c. Ex) Declarant said in court he was guilty. 3 months ago declarant said he was not really guilty. The statement at trial contradicts a prior statement. This is not hearsay; it‘s being used to impeach the declarant/witness. d. Not hearsay: not going in for the truth of the matter. Solely going in to impeach witness. i. Exception: Rule 801(d)(1)(A): jury can rely on past statement and base their decision on it. ii. Exception: You can also get prior inconsistent statements in for the truth of the matter if it fits into a hearsay exception!! 1. Ex) at the scene of an accident: excited utterance. 2. Rule 612: Writing use to Refresh Memory: Except as otherwise provided in criminal proceedings by 18 USC § 3500, if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. a. Witness uses writing to refresh memory, other side looks at it, something there that contradicts current statement: writing can come into evidence. 3. Rule 613: Prior statements of witness: a. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. i. Old c/l rule with prior inconsistent statements: before you can question a witness about a prior statement, you have to show it to him first (offer some prep). ii. Under Rule 613: other party doesn‘t have to show W the statement beforehand. b. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). i. W just must be available to hear the evidence of his contradictory statement and afforded an opportunity to explain or deny the prior inconsistent statement. ii. Opportunity to respond: notice. iii. Judge still going to ask: relevant, prejudice, probative? 4. Rule 615: Exclusion of Witnesses: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present. a. Can exclude witness so they don‘t hear each other: sequestration. 5. Cases a. Coles v. Harsh i. Alienation of affection case: H suing W‘s lover, D ii. W says Lover wrestled with all women the same way, not focusing especially on Mrs. Coles.

Evidence Class Notes

46

iii. Coles takes stand, says that W had told Coles on a prior occasion about the wife and the lover. iv. Court uses old c/l rule: P had the chance to ask W about that prior statement when W was on the stand. Doesn't allow it in. v. Rule 613(b): do not need to ask W about inconsistent prior statement first, before bringing extrinsic evidence of prior inconsistent statement. F. Rehabilitation 1. Generally a. Attempt to rehab witness who has been booted all around? b. Usually, prior consistent statements are not admissible because they don’t add anything. Repetition. c. Exception: Rule 801(d)(1)(B). 2. Rule 801(d)(1)(B): (d) Statements which are not hearsay. A statement is not hearsay if a. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; 1. Not hearsay: can use prior consistent statement as substantive proof! 2. Declarant testifies at trial. P says ―aren‘t you saying this now because you are divorced from x?‖ Declarant says ―No, I‘ve been saying this for years!‖ 3. Or, ―I‘ve been saying for weeks that D did it. It has nothing to do with my lighter sentence.‖ 4. W must have made the prior consistent statement before the motive arose to make the statement that‘s being attacked to day. !! 5. Can put in prior consistent statement ONLY when challenged with a motive by opposing party. (Motive as in now you are being paid, or are married to X, etc.) 3. Cases a. Tome v. US (1995) 1. D (Tome) charged with abusing 4 year old daughter. D says this charge is fabricated so that D can‘t have testimony of daughter. 2. Defense is recent fabrication. 3. On cross, daughter was not convincing. P put on 6 witnesses saying daughter told them of abuse earlier on. G. Character of the witness 1. Generally a. Rule 404: cannot use character evidence to prove elements in a civil case. Exception: 404(a)(3): with 608, 609. b. Rule 608(a): Opinion and reputation for character for truthfulness i. If character testifies, you may try to show Witness is not telling the truth by attacking their character for truthfulness. c. Rule 608(b): specific instances of conduct: i. No extrinsic evidence of specific instances of conduct d. Applies to both criminal and civil cases e. Applies to witness in court or a person testifying about character of another witness f. Court will determine whether something actually goes to the truthfulness 2. Prior Convictions a. Rule 609: people in certain circumstances people have been convicted of certain crimes and can tell the jury they may consider those prior convictions for purposes of credibility b. Ie, a more specific application of 608 c. But this is only for impeachment purposes: to undermine credibility of the person who is testifying. d. Under 609, attorney CAN bring in extrinsic evidence, unlike under 608 e. Applies to civil and criminal cases f. If prior conviction is going in against your witness, you will want judge to issue a limiting instruction to the jury (Rule 105) g. Just goes to impeachment 3. Rule 608: Evidence of character and conduct of witness:

Evidence Class Notes
a.

47

b.

c.

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. i. Can attack W‘s credibility or support W‘s credibility in evidence in the form of opinion or reputation. ii. Ex) It‘s my opinion that W is a liar. Or, I know W‘s reputation from around the block and he‘s trustworthy. iii. Exceptions: 1. can only go to truthfulness or untruthfulness 2. Evidence of truthfulness is admissible only when W‘s character for untruthfulness has been brought up in court a. Ex) D says W is untruthful. P then puts on witness saying W is truthful (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. i. Cannot bring in extrinsic evidence to prove witness is untruthful. ii. Can only attack on cross iii. What if witness lies on cross? Then attorney is stuck. Not going to set up another collateral issue. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. i. Ie, no waiver of 5th amendment right to remain silent. US v. Owens (Rule 608(b)) i. D shot his wife. D says it was an accident. ii. DA wants to show Owens is liar. iii. DA asks about Owens‘s prior application to government job. Did you lie on that application about 2 prior convictions? iv. Cross examination about untruthfulness using specific instances of conduct. v. Owens says he never lied on the application, but then later admitted to omitting it. vi. Can omitted evidence of prior crimes come in? vii. Under 608(b): it can come in because ____ viii. But still have to consider Rule 403 prejudice.

4.

Cases a.

5.

6.

Review a. Witness in court testifying. b. Cannot put on evidence to show someone is truthful, unless their truthfulness has been attacked c. DA on Cross examination: ―Witness A, isn‘t it true you lied on this past instance?‖ If witness A says no, you are done there with Witness A. d. But DA can still attack Witness A‘s character for truthfulness using Witness B‘s opinion or reputation. e. D can cross examine Witness B to support Witness A, OR, bring in Witness C to show their opinion or reputation that Witness A IS truthful, OR to attack Witness B. Rule 609: Impeachment By Evidence of Conviction of Crime: a. (a) General rule. For the purpose of attacking the credibility of a witness, i. (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and 1. With witness other than accused: a. Balancing involved here; judge will consider prejudice using Rule 403. b. Depending on punishment: death or punishment more than 1year 2. Witness is the accused:

Evidence Class Notes
a.

48

b.

c.

d.

e.

Evidence can come in if probative value outweighs the prejudicial effect (Presumption of Rule 403 is reversed) ii. (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. 1. We can attack W‘s credibility involved with dishonesty or false statement (fraud, for example) 2. no balancing test here: shall be admitted 3. Regardless of punishment (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. i. Can only use prior convictions to impeach credibility with convictions within 10 years ii. Unless, court determines justice requires otherwise: probative evidence of conviction outweighs prejudicial effect (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. i. Cannot use evidence of prior conviction if the person has been pardoned and not convicted of subsequent crime (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. i. Generally not admissible: (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. i. Can ask about conviction when appeal is pending

7. 8.

Cases a. Brackeen (Rule 609) Hypos a. W/D has 9 year old fraud misdemeanor. D wants to testify but is worried about being cross examined about this. Rule 609(a)(2): evidence admissible, no balancing test required. b. D has 9 year old misdemeanor. D would want 609(a)(1)(part 2): judge would have to determine whether probative value outweighs prejudicial effect

H. Attacking and Supporting Credibility of Hearsay Declarant 1. Generally a. Declarant not in court, but we want to attack declarant‘s credibility b. 2. Rule 805: Hearsay within Hearsay: 3. Rule 806: When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. a. Rule doesn‘t apply to: i. Admissions of a party opponent ii. Statements under 801(d)(1) – as the witness is available

Evidence Class Notes

49

b. c.

d.

e.

f.

g.

iii. Non-hearsay statement not offered for the truth – so the person who stated it has knowledge that statement was made and can testify about it – warning of wet floor to injured person as heard by witness Goes back to Rule 613: prior inconsistent statements: but here the declarant does not need an opportunity to explain Examples of evidence to attack declarant‘s credibility i. Bias, prejudice, or interest in case ii. No personal knowledge iii. No capacity to testify truthfully iv. Prior inconsistent statements v. Reputation or opinion testimony that declarant is untruthful vi. Criminal convictions under rule 609 Rehabilitating the Declarant i. In the same manner as if the witness were there 1. Rebut allegations of bias, prejudice, incapacity, or interest 2. Introduce prior consistent statements (where allowed) 3. Call positive character witnesses Extrinsic evidence i. Remember that you cannot introduce extrinsic evidence as to specific acts of untruthfulness other than by cross-ex ii. But witness is not there to be cross-exed iii. Some courts say that in that circumstance you may introduce extrinsic evidence – others say you may not Opportunity to deny or explain Rule 613 i. Rule normally requires that opportunity to deny or explain if witness impeached with a prior inconsistent statement ii. But witness is not here to be given such opportunity iii. So inconsistent statement may be introduced and is not subject ot any requirement that the declarant had no opportunity to deny or explain Right to Call Declarant as on Cross i. If a party against whom a hearsay statement has been admitted calls the declarant as a witness, that party may call the witness as if he were an adverse witness and not be restricted to non-leading questions but may question him as if the witness were under cross-examination.

I. Who May Impeach 1. Generally a. Old rule: Could not impeach your own witness. Stuck with what your witness says 1. If witness says something surprising, turns into a hostile witness, can cross-ex through leading questions b. Now: credibility of a witness may be called by any party, including party calling the witness 2. Rule 607: The credibility of a witness may be called by any party, including the party calling the witness a. Party can put on its own witness b. But in a criminal case, DA cannot put witness on just to impeach him, unless there is a surprise, but even then court will balance prejudice and probative value. 3. Rule 614: Calling and Interrogation of Witnesses by Court: a. (a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. 1. If the court calls the witness, everyone can use leading questions (cross) b. (b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. c. (c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present 4. Cases a. Chambers 1. Chambers charged with murder. Chambers says McDonald did it. 2. Chambers put McDonald on the stand. McDonald says he didn‘t do it. 3. Chambers then impeaches McDonald, introducing prior inconsistent statement, where McDonald previously admitted to murder.

Evidence Class Notes
4.

50

b.

(Prior statement to cops could be a statement against interest, could have gotten in that way, under FRE.) 5. Trial court said Chambers couldn‘t do this because by putting McDonald on the stand, Chambers was vouching for his credibility. 6. Supreme Court said otherwise: should have a right to put witness on to impeach him. 7. EXCEPTION: criminal cases with prosecutors: DA cannot put someone on stand just for the sake of impeaching his credibility!! US v. Hogan 1. Witnesses admitted to drugs, named D. Witness later recanted, says implication of Hogan was beaten out of him. 2. DA put witness on just to impeach him. 3. DA cannot do this, UNLESS there is a surprise, and even then court will balance probative value and prejudice.

J. Substantive Use of Prior Inconsistent Statements (FOR TRUTH OF MATTER) 1. Generally a. Impeachment has to do with attacking one‘s credibility. Does not go to the truth of the matter. b. BUT you can use prior inconsistent statement as SUBSTANTIVE evidence: can use the statement as ACTUAL PROOF c. Rule 801: Not hearsay d. If witness is UNAVAILABLE and gave statement under oath before, that statement could get in under Rule 804(b)(1). 2. Rule 801(d)(1)(A): (d) Statements which are not hearsay. A statement is not hearsay ifa. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. i. If declarant IS IN COURT, and available, and he gave a prior inconsistent statement, and it was given under oath. ii. Jury can base decision on EITHER the in court OR out of court statement. 3. Cases a. US v. Castro-Ayon i. D charged with smuggling illegals. Illegals taken to INS. Illegals make statement that D smuggled them in at an official place. ii. At trial, they recant. iii. USA wants to bring in prior statements from INS, and wanted to use those prior statements against D. iv. If the people are IN COURT and TESTIFIED BEFORE UNDER OATH IX. The Right to Confront Witnesses A. Generally 1. Constitution: The accused in a criminal case has a right to confront the witnesses against him 2. Example) Accountant says Enron cooked the books. Can come in under FRE as an admission made by an employee. But what about the constitutional right to confrontation? B. Crawford (READ CASE) 1. Generally a. Court will not allow testimonial hearsay statements of a declarant, who does not testify at trial, unless the declarant is unavailable to prosecution AND accused had a prior opportunity to cross examine. b. Ie, must go through all exceptions to see which statements can come in. 2. Facts a. Crawford believed X sexually assaulted his wife. C goes out with wife looking for X, beat up X. b. C now prosecuted and convicted of assault and attempted murder. C said it was self defense. c. Wife gave recorded statement that she did not see a knife in X‘s hand. DA wants to put wife on saying there was no knife. d. C says wife is not allowed to testify: asserts marital privilege. e. Prosecution says wife is thus Unavailable, tried to get statement in under Residual Exception. (DA could have gotten it in under statement against interest.) Court did not care about trustworthiness.

Evidence Class Notes
Testimonial vs. Non-testimonial a. Testimonial requires there to be an opportunity to cross examine. Right to confrontation applied only to testimonial statements i. Statement made during preliminary hearing, before a grand jury, or at former trial ii. Statements to police during interrogation iii. Dying declarations b. Non-testimonial: subject to regulation by hearsay rule. C. Davis v. Alaska 1. Rule 609: Generally allowed to use prior conviction to impeach, but not juvenile convictions. 2. Court wanted to impeach Davis showing juvenile convictions, on grounds of bias. Confrontation clause trumped juvenile impeachment clause. X. Opinions and Expert Testimony 3.

51

A. Lay Opinion Testimony 1. Generally a. See text at 1112-1126 for congressional history. b. Old rule: i. Rule 602: witness must have personal knowledge. ii. Common law: lay person could not give opinion about the facts of the incident unless the facts could be described fully and accurately (personal knowledge). Lay person could not give a statement of law/ultimate issue (negligence, accidence). c. New Rule: i. Witness can give factual statement, from which jury can draw an inference. ―D was running around naked saying he was the Dean.‖ ii. Impression/opinion on how D was acting/speaking. ―D acted bizarre and acted incoherently.‖ iii. Legal standard still not desirable. ―D was acting insane.‖ iv. Important for witness to have knowledge of additional facts when making a final opinion. d. Opinions or inferences of lay witnesses are limited to those which are: i. Rationally based on witness‘ perception ii. Helpful to clear understanding of witness‘ testimony or determination of a fact in issue iii. Not based on scientific, technical, or other specialized knowledge of an expert witness e. Ultimate issue i. Ex) Did the parties make a contract? Court would rather have witness say ―I saw A make an offer and B accept.‖ f. Overlap between lay people and experts i. Ex) handwriting under 901. ii. Cop can be both lay person ―he looked drunk‖ and as an expert ―he had a BAL of .20.‖ g. Objections to Lay Opinion i. Lay person has no personal knowledge ii. W is speculating iii. W is giving legal conclusions iv. There‘s no foundation upon which W can say this 2. Rule 701: Opinion Testimony by a Lay Witness: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are: a. (a) rationally based on the perception of the witness, i. Personal knowledge b. (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and i. Will statement help the jury understand the case/reach a decision? c. (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 3. Rule 704: Opinion on Ultimate Issue: a. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. i. Ie, lay witness can give an opinion on ultimate issues. W cannot give legal conclusions (D was negligent), but you can ask W if there was anything driver D could have done to avoid the accident. ii. W cannot say D was insane, negligent, not able to make a will etc. b. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or

Evidence Class Notes
condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. i. In a criminal case, mental status elements are for trier of fact only, NOT expert witness 4. Cases a. USVI v. Knight (3d Cir. 1993) i. Knight was pistol whipping V, gun went off ii. Lay W said ―shot was accidental‖ iii. Trial judge didn‘t want this in: lay witness saying this opinion going to the heart of the matter iv. Appeals court said this statement was ―helpful to the jury‖.

52

B. Expert Opinion Testimony 1. Generally a. Rule 602: Personal knowledge. Subject to provisions of Rule 703: bases of expert opinions. b. Expert can base opinion on data, w/out personal knowledge. c. Expert can testify about something that the general public knows about, but that also helps jury in their decision. Ex) How an engine works. d. Expert must always give an opinion of a certain type: formulaic: ―To a reasonable degree of medical/engineering/professional certainty.” e. Issues i. Is expert qualified? ii. Is the subject matter the proper subject of expertise? iii. What is the role of the judge as gatekeeper? iv. What is the basis upon which expert opinion can be given? f. Qualifications: i. Expert can have experience, not necessarily formal academic training (EXPERT) 1. Reasonable pretension of knowledge makes for an expert ii. Expert can testify if the testimony will assist the trier of fact to understand the case or how to decide the case. (FIELD OF EXPERTISE) 1. Don‘t need expert witness to talk about what everyone knows iii. Issue must be relevant to the case. iv. If issue is relevant, is it too prejudicial? 2. In court a. Must qualify the witness as an expert by asking questions relevant to expertise b. Other side will cross on expert‘s qualifications 3. Cases a. State v. Odem i. D charged with possession with intent to distribute. ii. D said they were for his own use, not to sell iii. Expert (prosecution detective) asked: if you found 18 vials of coke w/out paraphernalia, would it be for personal use, or for sale? Detective said this would be for sale. 4. How to get expert to testify a. Old C/l: expert could only testify on basis of facts which already were or were going to be put into evidence. b. Now: see rule 703. 5. Rule 702: Testimony by Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, (expert not necessarily an expert by formal academic education: may be training or experience) may testify thereto in the form of an opinion or otherwise, (expert can give facts, jury can draw inferences) if a. (1) the testimony is based upon sufficient facts or data, b. (2) the testimony is the product of reliable principles and methods, and c. (3) the witness has applied the principles and methods reliably to the facts of the case. d. This generally follows Daubert test, infra. 6. Rule 703: Bases of Opinion Testimony By Experts: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the

Evidence Class Notes

53

court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. a. Expert can use facts from before trial that aren‘t necessarily in evidence, so long as the expert would reasonably rely on it in the field i. Ie, facts don‘t have to be admissible for experts to rely on them. b. Bases of expert opinion i. Firsthand knowledge 1. Ex) Doctor treated patient and then testifies as an expert as to the prognosis. ii. Facts in the record, introduced into evidence 1. Ex) Hypothetical questions: as to X, Y, Z, what is your expert opinion as to Q. iii. Information NOT in the record but reasonably relied upon by experts in the field. 1. Ex) Learned treatises. See infra. 7. Rule 705: Disclosure of facts or data relating to expert testimony: The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. a. Ie, expert can give opinion without testifying as to his underlying facts or data, or what expert used to base the opinion on. BUT he can be cross examined on those underlying facts!!! b. What if expert based the opinion on otherwise inadmissible evidence? i. Rule 703: If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. 1. Even if facts are inadmissible, but experts would normally rely on those facts to form an opinion, that opinion can still go in. ii. On direct, don’t tell the jury that those facts are inadmissible, unless the probative value substantially outweighs prejudicial effect. iii. On cross, the other side can ask for disclosure of those underlying facts. Cross can always inquire into the basis of an expert‘s opinion. iv. Always remember the difference between the SUBSTANCE and IMPEACHMENT: why is a statement going into evidence? 1. If cross asks you about what expert based his opinion on, that goes to IMPEACHMENT. 8. Rule 803(18): The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (exception to hearsay rule) a. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. i. Witness can make reference to learned treatises ii. Not excluded by hearsay rule iii. Learned treatises are different in different states. iv. Can be used to impeach, and can be a basis of expert‘s opinion (Truth of the matter) v. Other party can cross examine on learned treatises. vi. If treatise is admitted, statements can be read into evidence, but CANNOT be made an exhibit. Ie, so jury does not take book out with them. 9. Cases a. Brunner v. Brown i. Will contest. Testator left money; protestors saying he was incompetent. ii. Doctor can give his opinion even if based on inadmissible evidence so long as it is the type of evidence reasonably relied on by experts in the field. b. Tran Trong Cuong: 10. Challenging an expert opinion a. Not to a degree of _X_ certainty (engineering/medical/legal) b. Not qualified c. Facts insufficient, or not upon which an expert would rely 11. Rule 706: court can call its own expert. Jury tends to believe them though. XI. Scientific Evidence 1. Generally

Evidence Class Notes
a. b.

54

2.

3.

Science expanding quickly. How reliable is the evidence heard in court? Bases: i. Is there a valid, underlying theory? 1. Can we know there is a thing called DNA, blood type, physiological changes with lies ii. Is there a valid technique to apply the theory? iii. Are the technicians applying the technique properly? How to use scientific evidence a. Some SE has been recognized by the courts: recognized as ―good science.‖ (Judicial notice) i. Blood tests, firearms, BAL tests, fingerprints b. Acceptance via statute (Statutory Recognition) i. Radar, paternity, BAL test, battered women‘s syndrome, hypnosis, DNA recognition. c. Some things are not recognized by statute or judicial recognition d. Sufficient evidentiary foundation upon which we can accept evidence Cases a. Frye Test (PA, NJ test) i. General Acceptance Theory: Witness can give scientific testimony if the SP has been given general acceptance in the field as being a valid scientific principle. 1. Bite marks, firearm residue, truth serums, hair analysis ii. Judge just has to determine whether the scientific principle is generally accepted in the relevant field. iii. Advantage of Frye Test: 1. Putting analysis of theories with the scientists iv. Problem with the Frye test: 1. Generally accepted by whom?? 2. Conservative test b. Daubert v. Merrell Dow Pharm. (FEDERAL TEST) i. Court wants reliability in expert evidence. ii. People on both sides were able to come up with experts involved in junk science iii. Rule 104(a): whether certain evidence is admissible. Judge is gatekeeper, decides which expert testimony goes in an stays out, to keep in line with real science. 1. Is methodology valid? 2. Can it be applied to the facts in the case? iv. Four factor test: 1. Testability: has/can scientific theory be tested? Must be subject to empirical test. 2. Peer review: Has there been peer review and publication? Limited to the scientific context. 3. Error rate: Does the technique have an error rate or known rate of error? 4. Standards: Are there maintained standards for the technique? v. Difference between Daubert and Frye: in the former, the judge becomes the gatekeeper, whereas in the latter the scientific community is the standard. vi. Other considerations under Daubert 1. Was the underlying research independent of the litigation? 2. Did the expert unjustifiably extrapolate to come to their conclusion? 3. Were alternative explanations accounted for? 4. Was the expert as careful as he would be in his regular work outside paid litigation? 5. Is the field of expertise known to reach reliable results for type of opinion offered? c. Kumho Tire v. Carmichael i. Tire blew out. Was it defected or because driver abused the tire? ii. Rule: Daubert test applies to technical and specialized evidence as well as scientific evidence. Test applied flexibly to each case; judge makes the call. iii. The side putting on expert has the burden to prove Daubert factors. 1. Scientific, technical, or specialized knowledge 2. Assist the trier of fact 3. Witness qualified as an expert 4. Testify in form of opinion or otherwise a. Basedupon sufficient facts b. Testimony produced of reliable principles and methods c. Witness has applied the principles and methods reliably to the facts fo the case

Evidence Class Notes
XII. Privileges

55

A. Generally  5th amendment: privilege against self-incrimination  Witnesses: unwritten rule: NO ONE who is subpoenaed can refuse to testify, to be a witness, to disclose a matter, to produce evidence in his possession or prevent another from producing that evidence. If court orders it, person MUST testify. o Except: When witness is able to assert a privilege. Ie, must testify unless…. o Privilege can be found in Constitution, statute, common law. o Privilege overcomes main interest of the court: to seek truth and to deal in justice. o We have decided that certain policies/principles trump these court goals.  FRE 501: General Rule: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. o Constitution, statute, and common law can create privilege o Civil case in federal court using state law, state rules of privilege will apply  Privileges talk about the ability to refuse to testify in court. FRE inapplicable in depositions generally.  Federal criminal case privileges determined by federal common law  Civil case in federal court -- Deleted rules, see text at 1192.  Applies to all stages of litigation  Substantive B. Attorney Client Privilege 1. Generally a. Privilege belongs to the client. b. Privilege survives death; even after client dies c. Victims talking to DA are not the clients of the DA, the state is. No privilege. d. Witnesses have no expectation of confidentiality or privilege; they are not your clients. e. Even if client has released you of privilege, you should still exert it. If client disappears, presumption that client would have exercised privilege. 2. Confidentiality vs. Privilege a. Confidentiality applies at all times. Attorney under an ethical duty to keep anything relating to representation confidential. Attorney does not have the right to disclose anything to anyone. b. Privilege does not mean there‘s a duty not to tell anything. Privilege means you will not be compelled to disclose anything discussed between attorney and client at hearings or trials. 3. Proposed Rule 503: not enacted, intended a. This rule basically outlines common law b. Client has privilege to refuse to disclose… 4. Client, Lawyer, a. See definitions at 1205 b. Client can be a corporation 5. Cases a. Upjohn i. Bribery charges ii. Attorney investigated case, spoke with people iii. IRS looked into tax issues, wanted attorney reports iv. Circuit court said privilege only applied to control group: those making decisions. Ie, middle managers could not exercise privilege. v. Managing Speaking Test: any speaking employee is a representative of the corporation so long as topic is related to the scope of the employment. 1. Elements: a. Communication pursuant to corporate purpose to obtain legal advice

Evidence Class Notes
b.

56

Employees were aware that they were giving confidential statements are were doing so as part of the employer‘s efforts to obtain legal services c. Communications dealt with matters in scope of employees‘ duties d. Information not otherwise available to the superiors and necessary to render effective advice e. Lower level person giving information will also be acting on the advice f. Statements are kept confidential and disclosed on limited basis consistent with the privilege. vi. Questions regarding corporate employees 1. Not within scope of employees employment (not privileged) 2. Employee who leaves after the statement (corporation keeps the privilege) 3. Statements of former employees (we don‘t know) 4. Conflicts between corporation and employee 5. Right to question employee directly 6. Class action – who holds privilege? vii. This broadened attorney client privilege b. US v. Woodruff i. Communication from lawyer saying when next court date was is NOT privilege. ii. This is a notice matter. c. Purcell: i. Client says they will commit an arson to attorney. ii. Police go to guy‘s home and finds arson stuff and arrest the guy iii. Police want attorney on the stand iv. If you seek to assert the privilege, then you 6. Examples a. Employee talks to attorney, admits to bribery. Mgmt can turn him over to DA, and he cannot exert privilege because corp was the client, not the individual employee. b. If employee leaves, it will probably be privileged, just as if client disappeared. If statement was made after employment ended, probably not privileged. 7. Who claims the privilege a. The client owns the privilege 8. What is privileged a. Any communication with anyone helping with the case: paralegal, secretary, etc. b. Communication made by client to attorney seeking advice, and advice that comes back to client. Preparation for litigation. c. Actual facts are NOT privileged. Pre-existing records also NOT privileged. Things attorneys observe are NOT privileged. d. Only communications are preserved: must look at INTENT. What was intended to be communication between an attorney and client? Was a third party present? i. Sometimes, third party presence does not waive privilege. Ex) Mother there with juvenile. 9. What is not Privileged a. Communications between attorney and client seeking legal advice b. Not the underlying facts c. Not the observation of the attorney d. Not pre-existing records turned over to the attorney i. Not communications where intent for confidentiality is not apparent e. Not communications not for legal services 10. What is legal business a. Should I sell my stock now? What should I ask for my house? b. Draw hazy line between legal and business advice 11. Exceptions a. Joint representation: if attorney reps multiple party in the same matter, the group will have A-C privilege against the rest of the world. i. If parties later sue each other, no further privilege against each other ii. Tracy v. Tracy: attorney represented both H&W during divorce. b. Crime-fraud exception: if client comes to attorney seeking help to commit a future crime, that is not privileged, so long as client knows he‘s using attorney. If client tells attorney about past crime, that is privileged.

Evidence Class Notes

57

12. Waivers: Proposed Rule 511 a. A tells C advice. C then tells his friend what A told him. Attorney cannot then disclose what he spoke about with his client. It does not matter what C does. b. Problem arises with inadvertent waiver of privilege; document inadvertently included in discovery documents. Privilege still waived? i. Minority View: privilege is a substantive right that cannot be waived inadvertently ii. Rule 511 (not enacted): once you turn over the document, it‘s out of your hands and you can‘t do anything about it. iii. Intermediate view: not going to waive privilege if you take reasonable precautions to preserve privilege. c. If you do waive the privilege, Client has no protection as to the whole matter. d. No inference of guilt if client exerts waiver. RULE 502: Attorney client Privilege and work Product; Limitations on Waiver (Inadvertent disclosure of Privileged Information) - Inadvertent disclosure does not waive the privilege if the holder of the privilege took reasonable steps: o To prevent disclosure o To rectify the error - If some privileged information is disclosed, other privileged communications remains protected unless: o The disclosure was intentional o They contain the same subject matter o Communications in fairness should be considered together - Note that this rule has controlling effect as set out in rule with respect to: o Court orders o Party agreements o State proceedings – (even when state law provides the rule of decision) o Only applies to attorney client privilege and work product protection - CASE: o Only 381 documents…not massive…should have been very careful o If you‘re not careful, you may have waived the privileged. Act on slips quickly or else you may not be able to claim privilege - Ways to waive privilege o Voluntary disclosure o Don‘t waive the privilege by saying ―I committed the crime‖…but if you said ―I spoke with my lawyer about committing the crime‖ C. Work Product Privileges 1. Generally a. Comes from FRCP 26(b)(3): during discovery, other side does not have to turn over documents prepared by attorney in anticipation of litigation. b. Don‘t want to reward the lazy attorney 2. Exception: a. If it is an undue hardship on the other side to get the information, court may order the attorney to hand over the information. b. Does not apply to privilege. 3. Examples: work product vs. attorney client a. Client interview, personal injury action. A makes notes of everything C tells him. Communication to attorney = privilege. b. A interviews W. Work product b/c W is not a party. c. Recording of what W told A. WP d. Photos of accident scene = work product. No communication. e. A meets with C, takes notes about conversation. Privilege = communication, advice. f. Pre-existing books turned over to attorney. Neither WP nor ACP: not communication, not prepped for litigation. g. Insurance company took statement from insured. WP, but attorney has a right to get his own statement.? 4. Privilege is absolute – work product is not absolute if the other side can say that if would work a tremendous hardship if you didn‘t get the opposition‘s work product a. Statement from witness…then witness suffers a stroke

Evidence Class Notes

58

D. Physician-Patient Privileges 1. Generally a. Patient has the privilege: does not want doctor to be compelled to testify about what was said for the purpose of obtaining treatment/advice over treatment. b. Doctor can testify as to what was told to him, but patient has a right to say I don‘t want to tell the doctor what anyone said. c. Patient can exercise privilege, or not. d. This privilege does NOT exist in the federal court!!! e. States, including Pennsylvania have this privilege i. Applies to civil matter ii. Only applies to information that would blacken the character of the patient. Ie, VD. f. PA psychological privilege i. Same as ACP in PA ii. Does not apply to psychiatrists 2. What is privileged a. Usually, only the communications, not the tests, xrays, exams, etc. 3. Cases a. Jaffe v. Redmond i. Court determined there is a psychotherapist privilege. ii. Federal common law: privilege between licensed psychotherapist and patient so long as it was in furtherance of the treatment. iii. Supreme Court also applied a privilege to licensed social workers. iv. Exception: if client claims psychological injury, client has waived privilege to keep confidential the reports of the psychotherapist. b. Miller v. Colonial i. PA privilege statute ii. No physician shall be allowed in any civil matter

E. Marital Privilege 1. Generally a. Two types: i. Privilege of confidential communications between spouses. Just like attorney client privilege. ii. Adverse spousal testimony: Spouse cannot be compelled to testify against that person‘s spouse. 2. Marital Communications Privilege a. Applies in both civil and criminal cases. b. To preserve marital harmony. c. Spouse has the privilege to refuse to disclose anything said to him or her d. Spouse can prevent the other spouse from testifying about any communications made to one another during the marriage. e. Privilege is made by the one who made the communication. A little different from the ACP in this sense. H can prevent what H said to W, not what W said to H. f. Parties must be legally married at the time of the communication. i. But communication survives divorce g. No exception like the crime-fraud exception in marital cases. If H tried to get W to participate in crime, H can stop W from testifying h. Communication must be made in confidence i. Only protects communications, not observations j. No marital privilege for intra-family crimes i. Ie. Wife subjected to domestic abuse can testify about what her husband said ii. Marital infidelity, custody, etc. k. No Confidential communications of which they are both parties l. No parent-child privilege 3. Privilege against Adverse Spousal testimony a. Applies only in criminal cases b. Applies during life of marriage c. Applies to information obtained before the marriage

Evidence Class Notes
d. e. f. g. Shields information, not just communications Witness spouse controls the privilege Spouse cannot be forced to testify against spouse re: what the other did/said. Ie, spouse A cannot be compelled to testify against spouse B. Exceptions: i. Abuse of spouse or child: spouse can testify against spouse ii. Suits against one another iii. Divorce If parties are divorced, privilege evaporates.

59

4.

h. Cases a.

Trammel v. US (adverse spousal testimony) i. Old rule: Person who owned privilege could stop spouse from testifying. ii. H&W both arrested for drugs. USA wants W to say what H did re: trafficking. H says W cannot testify against him. iii. Trammel changed federal common law: Person who can assert the privilege is the spouse (W). Accused spouse cannot prohibit other spouse from testifying. Ie, wife could not testify if she didn‘t want to, but can if she wants to. H can‘t prevent her. iv. Presumably this applies in all cases. v. Held: privilege is held by the person who is testifying against the other spouse; not held by person against whom spouse is testifying.

F. Miscellaneous Privileges 1. Privacy privileges 2. Priest-penitent 3. PA privilege in mediation 4. Voting privilege XIII. The Best Evidence Rule 1. Generally a. Should not be called best evidence rule b. Original Documents/Writing Rule c. Rule applies only to cases or situations where inferior evidence is offered in place of an original writing, photo, or recording because the rule is being used to prove its contents. d. You don‘t need the original document when you are only corroborating a statement e. Want the original when you are proving something. f. Ex) Proving people are married. W says he was at the wedding. Marriage certificate only corroborates the marriage, it doesn‘t prove it? g. If you are going to prove the contents of a document, you need the document itself. h. Rule NOT used to prove the absence of something. i. Don‘t use this rule for corroborating evidence i. Ie. D confessed to the robbery then he gave a written confession that he committed the robbery. If you are trying to prove the case from the officer testimony, you need the additional document just to corroborate. ―I paid him and he gave me a receipt‖…where is the receipt? Corroboration. ii. Ie. To prove marriage, you should bring in the certificate. j. Questions to Ask about the document: i. Is this hearsay? Is there an exception? ii. Authentication under Rules 900: is the document really what it purports to be? iii. Do we need the original, or can we use a substitution? 2. Rule a. When a party relies upon a writing, recording or photograph to prove the content of that document, the original document must be produced. Why? 3. Rule 1001: Definitions: For purposes of this article the following definitions are applicable: a. (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. b. (2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures. c. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes

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4.

5.

6.

the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". i. Counterpart: 1 document signed in 5 different cities, making up one total document. ii. Copy: yellow credit card receipt. d. (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. e. Duffy Case: i. Duffy charged with stealing car from Florida to California. ii. Duffy said he hitchhiked to California. iii. Cops found shirt in car with ―DUF‖ initials on it. iv. Defense says it‘s a writing, need the best evidence (actual shirt) in court. v. Is this a chattel or a writing? vi. Court only said it was collateral evidence; unnecessary. This ruling is questionable: doesn‘t the shirt go to the content of the writing? Rule 1002: Requirement of Original: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. a. Need independent legal significance i. Contract – the words control ii. Libel Case – the photograph or letter controls b. Only when substance of writing itself is at issue must you use the original document. c. Ex) Contractual dispute: what does the contract say? W testimony = hearsay. Look to language of the K/will/deed, etc., to determine terms. d. Ex) Bank robbery, caught on tape. W can testify re: robbery if he saw the robber; don‘t need to bring in a tape of the robbery. BUT if you are proving case through contents of the tape, then you need the tape. Ie, if the robber‘s face is on the tape, and you need the video to prove identity, bring tape in. e. Examples i. Video shows robber. Need video if it‘s the only recordation (no witness). ii. Doctor says x ray shows arm was broken. X-ray would have to come in: to prove content iii. If Patient said he can‘t work b/c doc said arm was broken. Don‘t need x-ray; not trying to prove content of the film. iv. Want to impeach W: at first trial W said he was going 50mph, this time he says 30mph. Do we need the transcript from the first trial? 1. Only if you are relying on the writings (transcripts). Rule 1003: Admissibility of Duplicates: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. a. Xerox rule: prepared by copying machine. b. But sometimes copy does not do the job. Ex) Letters saying Bush was absent from Guard training: copies are of no use; need the original. Rule 1004: Admissibility of other evidence of contents: (SUBSTITUTES) The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if— a. (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or i. Under Rule 104, judge decides if destruction was done in bad faith. If documents were not destroyed in bad faith, can use substitutes (see infra). b. (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or i. Ex) cannot serve someone outside 100 miles ii. Judge decides if this is legit under 104 c. (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or i. Ex) A made an offer to B, B sent acceptance back to A. A has the original acceptance. d. (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. e. Example substitutes (in no preferred order): i. Copy ii. Compared copy

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iii. Copy of copy iv. Testimony to contents 7. Rule 1005: Public Records: The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. 8. Rule 1006: Summaries: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. a. If the document itself is inadmissible, summary is also inadmissible. 9. Rule 1007: Testimony or Written Admission of Party: Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. a. Opponent on stand: didn‘t you sign contract? That party cannot later insist on witness bringing in documents. Ie, once party admits to something, in testimony, deposition, written admission, don‘t need document. 10. Rule 1008: Functions of Court and Jury a. Judge makes the call re: admissibility of other evidence of contents of writing, in accordance with Rule 104 b. Jury makes the call whether there really was an original XIV. Judicial Notice 1. Generally a. Judicial notice is a substitute for evidence b. Ie, if court takes judicial notice of a fact, the party is relieved of bringing in evidence to prove it. c. Parties can make stipulations, of which judge can make judicial notice. d. This is a good time and resource saver. e. Difference between criminal and civil cases re: jury notice. f. Cannot base it on the individual basis of judge‘s personal knowledge g. Doesn‘t apply to judicial notice of legislative facts – which inform the court‘s ruling on a legal issue h. Doesn‘t apply to sociological facts like Brown v. Board 2. Rule 201: Judicial Notice of Adjudicative Facts: a. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. b. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. c. (c) When discretionary. A court may take judicial notice, whether requested or not. d. (d) When mandatory. A court shall (must) take judicial notice if requested by a party and supplied with the necessary information. e. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. f. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. g. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. 3. Cases a. Varcoe i. Kid crossing street was run over. ii. DA said Lee was diving recklessly in a business district iii. Issue: was this a business district? Could judge take judicial notice of that fact? iv. Judge told jury they may accept Mission street was a business district. v. It is known in the community that Mission Street is a business district: do not need to bring in expert witness to prove this. b. Fielding i. Jury trial for driving with a suspended license. ii. Judge took judicial notice that Glen Highway was a highway as defined within the statute 4. Examples

Evidence Class Notes
a. b. c. d. Can also take judicial notice of the law: whatever jurisdiction. Can take JN of well known facts: 9/11, 12/7 Pearl Harbor, Labor Day on a Monday Maps, charts, tables, reference materials How fast can a car go in three seconds

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1992 Test 1. Sustained – No personal knowledge 2. Objection – Hearsay. Put in for truth of matter. Might be admission. Adoptive admission. 3. Objections – Hearsay. Admission (sorry). Rule 409 – offering to pay for everything is not admissible (jury might assume it‘s an admission of liability) (medical expenses and property damage…medical expenses ok, property damage no) 4. Objection Hearsay – Excited Utterance 5. Objection Hearsay – 803(4) statement made necessary for the purpose of diagnosis or treatment


				
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