8/16/04 The litigation process. A client walks into your office. First thing is the statute of limitations. If you were sued, find out when where you served. Get dates. After SOL, find out what happened. Tell me the facts. From the facts we find out what causes of action are available. Where can this be filed? What venue? Where should it be filed. Who should be sued? Erie says that Federal Rules of Evidence generally govern trials in federal court. Next figure out what is required in your complaint (get your hands on the local rules). Prepare the complaint, file the complaint. How long do I have to serve the other side? If client has been sued. When is the answer due, do we have a SOL defense, can I quash service. When is my cross-complaint due? Do I want to remove to federal court? Can I change the venue? How general or specific do we want the denials to be in the complaint. Do we want to cross-claim against an outside party? Once the pleadings have begun then we start the discovery process. This is where the cases are won and lost. Written discovery is generally 3 things: (1) Interrogatories; (2) Request for production of documents; (3) Request for admissions. Then we have the meet and confer process. Then motion to compel. Subpoenas, these are to 3rd parties. Expert reports. Depositions – sit someone down, under oath and ask them questions. These can later be used at trial. There is also a 30(b)(6) witness, this is the person most knowledgeable (usually when suing a corporation). Inspections – Independent medical examination. Property inspections. Destructive testing inspections. Affidavits – Written sworn statements from your witnesses. 8/18/04 849-65 You want to know before trial what evidence is going to come in or not. This is where you use a motion in limine. You don’t have to do a motion in limine but for very important things it is good to do. Most states have adopted the Federal Rules of Evidence. Prior to the Federal Rules, almost all evidence law was case law, not statute. California has not adopted the Federal Rules, California has its own statutory rules of evidence. Very similar in substance but
the numbering is different. On the California bar you are tested on the Federal Rules of Evidence. There are no additional points for knowing the numbers of the rules. Also no need to know case names. Article I – General provisions Rule 101 – These rules bind federal courts to the extent of rule 1101. Rule 1101 – 104 (a) says the judge gets to hear everything. 104(b) talks about he punting of this, saying if you believe this then you can take this evidence into consideration, if you do not believe this then you can not take this evidence into consideration. Why do we have rules of evidence? 1. Mistrust of juries. We do not want the jury to hear everything. The judge gets to hear everything, except those things that are privileged, and the judge will decide what the jury should hear. 2. Promote substantive issues that we want to protect while litigating. 3. We want to protect things that occur outside this place. Privileges. 4. To maximize trustworthiness of the evidence. 5. To promote trial efficiency. It all comes down to trial, is it admissible or is it not admissible. Rule 102 – Can kick people off for cause, or for peremptory challenge. In state court, the judges usually allow the lawyers to question the jury. In federal court the judge usually does the questioning. Statements made during opening or closing are not evidence. Tangible evidence is either real or demonstrative. Real evidence actually played a part in the controversy (the knife, the bloody glove, the contract). Demonstrative evidence demonstrates or explains the evidence but did not itself play a part in the controversy (diagrams of the murder scene, photographs of the crime scene, charts of DNA matches). Questions on direct can not be leading, unless direct is to a hostile witness. Can not try to suggest an answer. On Cross you are supposed to ask leading questions.
General rule is that cross is supposed to be limited to the subject matter of the direct. But the judge has discretion to allow other stuff in (quite a bit of discretion). Usually if you don’t object when you should have, your objection is waived. If the objection is sustained then you can do an offer of proof (this is so the appeals court can see if the error was important or not). For an appeal you must show error. 8/20/04 The offer of proof is to show the appeals court 1. If there was error, 2. If the error was harmless error or reversible error. First category is reversible error. Second category is harmless. 103(a) – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Error is reversible if it probably affected the outcome of the case. The burden of proof is on the party looking to reverse the judgment. In order to protect your right to appeal you must object. 101(a)(1). Not only must you object, you must have objected on the right grounds. If the objection is sustained you have waived your right to appeal unless you make an offer of proof. If a judge makes a definitive ruling on a pre-trial motion, the parties do not need to renew the objection to preserve the appeal. But if it is a non-definitive ruling, then must be brought up at trial again. 1. Ordinary trial error. You have to object to preserve right to appeal. 2. Plain error – We all should have known better. Do not ever rely on that. You don’t have to object in order to argue them to the court of appeal. 3. Constitutional error – Any error that denies a defendant his or her constitutional rights. You don’t have to object to argue to the court of appeal. First we have to determine what kind of error is it. An error is harmless if the evidence that was either admitted or denied was cumulative. For example. We have 3 witnesses of the bank robbery, and we have a video tape of the robbery, and we have the D’s fingerprints on the gun. If one of the witnesses should not have testified then it really does not matter, would have been convicted anyways. Also harmless if the court gives a curative or limiting instruction. If there is overwhelming evidence that would have led us to the same result.
When a criminal defendant is denied a constitutional right, the burden is on the prosecution to prove beyond a reasonable doubt that it was harmless. Blowing the appeal. If you fail to file a notice of appeal in the proper amount of time. If you invite error. If you are the one who solicited the harmful information. By opening the door. You elicited evidence earlier in the trial that if fairness should be able to be rebutted later in the trial even if normally would not come in. The first substantive rule. RULE 901 – Authentication (laying the foundation) All evidence must have a foundation before coming in. You must offer evidence sufficient that would allow a jury to conclude that this item is what you say it is. The judge simply determines if a reasonable jury could conclude that the item is what you say it is. The jury ultimately makes the decision if they believe you or not. Let’s say we have a knife. First we mark it to identify it. It is not evidence yet. How do we get it in as evidence. First walk up to the witness and hand him the knife. Do you recognize this sir? How do you recognize it? Tell us where you found it? Once we get the witness to authenticate it, then we ask it to be admitted into evidence. 901(b) are illustrations of how to satisfy 901(a). (b)4 – There is something consistent in the writing that allows us to identify it with a particular person. Some distinctive. Misspellings, special knowledge. (b)5 – Anybody who has heard the voice before can do it. (b)6 – If you call a number assigned to a person’s home or if there are other identifying characteristics of the conversation. If you call a number assigned to the business and the conversation related to business reasonable transacted over the phone. The appeals court applies a standard of review called “abuse of discretion” Problem 13-A p.853. Common law used to say if there was a broken chain of custody then it could not come in. Now we just need evidence sufficient for the jury to conclude that it is what you say it is. Here you would need to call the chemist and the arresting officer. You don’t have to have all the links. Almost always need the first link, but if you are missing a link in the middle it is not the end of the world. Letterhead is less so a basis for foundation now than it was before. Read 866-75
8/23/04 13-C p.858 The email. We can call experts to the stand to describe how internet addresses work. Use the b(4). The wizard, hotel in vegas. The reply doctrine, keep it in mind. Example (4) on 162 of the rules. To get a tape recording into evidence the 2nd and 8th circuits require these elements. McKeever and McMillan test. 1. That the recording device was capable of taking the conversation now offered in evidence. 2. That the operator of the device was competent to operate the device. 3. That the recording is authentic and correct. 4. That changes, additions or deletions have not been made in the recording 5. That the recording has been preserved in a manner that is shown to the court 6. That the speakers are identified 7. That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.
Biggins rule 1. Competent operator 2. The fidelity of the recording equipment 3. The absence of material deletions, additions, or alterations in the relevant portions of the recording 4. The identification of the relevant speakers As long as the trial judge makes a determination that the recording is accurate then we will not require strict adherence to the factors. Even if the tape was let in by mistake, probably harmless error because there were eyewitnesses there. Some jurisdictions are more liberal with the rules and others are more strict. As far as transcripts are concerned, when there is a dispute we allow both sides to submit transcripts or we allow no transcripts. Usually, they get to look at the transcripts while in the jury box, but not while in the deliberation room. This is so they don’t overemphasize one piece of evidence. When it is in another language they do get a transcript and they do get to take it back.
Rule 902 – There are certain documents that are self-authenticating. We do not need to call someone to the stand to lay the foundation. This rule is hear because of reliability and necessity. If there is no counterproof in a civil case then the document or item is presumed authentic. In a criminal case you can not use presumptions against a criminal defendant. The jury must find that the document or item is authentic. 13-J 8/25/04 892-97; 51-67 13-K 902-6 would be used to authenticate that this is an actual issue of the newspaper. The question is, is this significant authentication that Bellamy wrote it? Probably for Bellamy because he writes something in there every week. What about for the letter to the editor, we may ask for something more. Note 1 p. 868 – NY Times – 6, Webster’s – maybe 7, Supreme Court Reporter – 7, Sears Catalog – 7, Newsweek – 6, Candy bar – 7, Map by govt – 5, Minutes – 1, French Census – 3 or 5. BEST EVIDENCE This is a misleading name. Rule 1002 When you are trying to prove the contents (what is inside) of a writing, recording or photograph, you need to provide the original unless. . . . p.878 note 2 – Live testimony 14-A The question is whether the testimony differs from the truth. If the writing is not on a document, instead it is on a shirt, tombstone, license plate, etc. we call it an inscribed chattel. The court has discretion when it is a chattel, if he treats it as a chattel then the best evidence rule does not apply. Treat as chattel when the writing is simple, the breadth of the margin for error, the ease or difficulty of producing the object itself. Music notes generally found to fit under best evidence, sometimes paintings and drawings as well. Songs on a CD qualify as well.
14-B The original is the document that is involved in the dispute. Note 1 p.883 When you sign a receipt at a restaurant and there are carbon copies, those are all originals. Photocopies of those are duplicates. Also sometimes people sign multiple contracts because they want all parties to have originals. Note 3. There can be infinite originals, every print from the negative is an original, every time you hit print from your computer, out comes an original. 14-C An attempt to use a duplicate. 1003 says duplicates can be used unless a genuine issue is raised as to the authenticity of the original. But 1008 says when there is this dispute we let it in and let the jury decide. Generally the court will let more evidence in rather than less evidence. 14-D The original with respect to the controversy is the copy. Another way to look at it is to say the original has been destroyed. 14-E Objection sustained. 14-F Objection sustained. 8/27/04 71-81, Read rules 801 and 802 Remember, if there is also a writing or photograph that is the same as the testimony we may not have a best evidence situation. p. 891 note 4 – Objection “the document speaks for itself” Problem 14-G 1) OK to testify because it is what he heard. 2) No problem here either. 3) No problem here either. 14-H Objection is sustained. 14-I Not trying to prove what the receipt says.
14-J This is a tough one. Here she is trying to show what isn’t in there. But the advisory committee notes say that the rule does not apply to this situation. Some courts will want the documents but the rules don’t require you to do it. 14-K Well, rule 703 says if you are an expert you can testify as to your opinion even if it is based upon inadmissible testimony. The question is what controls? 1002 or 703? The advisory notes say that 1002 is subject to 703, 703 trumps. Remember that the party wishing to excuse production bears the burden of proving that production is excused. To show that evidence has been lost or destroyed there needs to be a reasonable and diligent search. 1006 basically says that summaries can be used when the documents are too voluminous, but you must make the original documents available to the other party to inspect. Note 4 on page 896. If very hard to bring in the judge can treat it in different ways. 1. Call it an inscribed chattel, 2. Have a picture taken and show it to the jury, 3. Take the jury to see it in person. 14-L Interesting, because the advisory notes says that the rule recognizes no degrees of other evidence. If the original is lost, then testimony is just as good as the copy. 14-M The summary is allowed the actual records must be made available to the other side. 14-N Trying to use 1007 here. If the other party admits it in testimony, depositions, or a writing, then they can not object based on best evidence. RELEVANCE Irrelevant evidence is always inadmissible. Relevant evidence is admissible subject to other rules. Relevant evidence – Rule 401 How strong must the tendency be? 1. Evidence has the required tendency only if makes the point more probably true than not. Very high standard. This has been rejected. The evidence by itself must make it more likely than not that the guy is guilty. 2. Evidence is relevant only if the suggested inference is more probable than any other. Rejected as well.
3. Necessary tendency requires more than minimal probative worth. This has also been rejected. 4. The evidence is relevant if it makes the point to be proved more probable than if was without the evidence. This is the test. It is a very low threshold. What is a fact of consequence? Direct evidence is that which if believed to be true resolves the dispute. Circumstantial evidence is that which even if believed to be true doesn’t necessarily resolve the dispute. Federal Rules of Evidence does not distinguish direct or circumstantial evidence. Evidential hypothesis – when you are trying to prove a piece of evidence is relevant, you should have an evidential hypothesis. Why that this fact make it more likely that get us to the point. Deductive reasoning is proof positive of your hypothesis. Inductive reasoning involves premises that are not necessarily true but help us get to the answer. 8/30/04 107-12; 119-20; 124-132; 134-137 Problem 2-A Yes it is relevant. The test is this: Is it more likely that he was speeding at the time of the accident if we know he was speeding 30 min prior to the accident, than if we did not know he was speeding 30 min prior? 2-B Hypo: People who flee from the police tend to have some sort of consciousness of guilt, consciousness of guilt tends to mean consciousness of guilt of this crime. Probably has some probative value. Always start with 401, is it relevant. If so then go to foundation, hearsay, best evidence rule, etc. Then end with 403 – relevant evidence can be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, etc. Prejudice just means it makes you look bad, it tends to make you look guilty or liable. What rule 403 says is unfair prejudice. This means that it invites the jury to make a determination on something other than the facts or the evidence. Advisory notes – Unfair prejudice means undue tendency to suggest a decision on an unfair basis, usually an emotional one. 403 is cast in favor of admissibility, must substantially outweigh to be excluded. In a punitive damages case, pictures are more likely to be probative because we need to see how bad the conduct was. The availability of other means of proof should be considered a factor.
MIDTERM will be only on hearsay. HEARSAY Hearsay is not admissible unless it falls under an exception. Hearsay is a statement (an (1) oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion), other than one made by the declarant (a person who makes a statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 801(d) gives us 8 exception, or more accurately exclusions from hearsay. They meet the definition of hearsay, but we will not treat them as hearsay. Why hearsay rule 1) Because you are not under oath when you say it. Not as reliable when you are not under oath. 2) Cross-examination. When you put someone in a chair and ask them questions, that tends to be more reliable. 3) Demeanor. You can judge a lot from a person’s demeanor when speaking. The best evidence is that which is obtained under oath, subject to cross-examination, where a jury can view the party’s demeanor. 4 risk that hearsay presents. 1) Misperception 2) Faulty memory 3) Ambiguity or faulty narration 4) Insincerity 9/1/04 134-37, 150-55 HEARSAY 1) Declarant 2) Statement 3) Out of Court 4) Offered to prove he truth of the matter asserted Problem 3-A 1. Plaintalk is the declarant who made a statement (an oral assertion) out of court. This is offered to prove that Higgins is the robber, which means it is offered to prove the truth of the matter asserted. Obvious Hearsay. 2. Same analysis.
3. Is this offered to prove the truth of the matter asserted? He is basically saying that Higgins did it. This is offered to prove the truth of the matter asserted. Hearsay. Under the Federal Rules there is a difference between asserting, indicating, and implying. Unless you are intending to assert something that is not a statement. 3-B Truck driver is not trying to communicate, it is not an assertion. Advisory notes – The key is that nothing is an assertion unless intended to be one. 104(a) judge makes the determination if it is a statement, the burden is on the party trying to say it is an assertion. Tie goes to not an assertion, so not hearsay. 6 categories of non-hearsay uses (not offered for the truth of the matter asserted) 1. Impeachment You can impeach the witness on the stand or use a witness to impeach another witness who is not on the stand. 2. Verbal Act (or part of act) (statements (verbal or non-verbal) that themselves have independent legal significance. Verbal contracts or Defamation, the words themselves have independent legal significance) 3. Effect on Listener (what is in the listener’s mind after he heard the statement) 4. Circ Ev. of state of mind (trying to prove what is in the mind of the declarant) 5. Verbal Object/marker (an object that has writing on it but is being offered not prove that the writing is true, but to connect a person to a location, event, another person) 6. Circ Ev. of memory or belief (to connect a person to a location based upon memory) Verbal Acts are statements (verbal or non-verbal) that themselves have independent legal significance. Verbal contracts or Defamation, the words themselves have independent legal significance. 3-C This has a hearsay use and a non-hearsay use. It will impeach the witness, it will show that the witness is not trustworthy. What do we do when the evidence has duel purposes? Rule 105 – The court will restrict the evidence to the proper scope and instruct the jury. 3-D Here the words themselves are illegal, it is illegal to solicit prostitution. This can be considered a verbal act. 3-E This is delivery on the part of the contract. This is a verbal act of delivery under the contract. This is the fulfillment of a contract term verbally. The second part, when Cartwright tells the bank loan offer, is not a verbal act because there is no independent legal significance, not fulfilling any contract terms.
3-F To prove he is an employee of interstate is hearsay. But if he is trying to prove that he wasn’t negligent then it could be that he was trying to show the effect on listener. He is trying to show that he reasonably believed that he was with the gas co and he was reasonable in going over there. 3-H This is offered to show circ. Evidence of the declarant’s state of mind. It doesn’t matter if what she said is true, it matters what is in her mind. 9/3/04 157-78 Non-Hearsay is the excluded stuff. It meets the def of hearsay but we choose to exclude it from the definition. Not-Hearsay is stuff that does not meet the definition, like when it is not offered for the truth of the matter asserted. 3-G 1. Verbal objects are writing on objects that circumstantially tie a thing to a thing. In this case it will tie the matches and the defendant with the Eagles Rest Bar and Grill. If it would have a color or pattern on it that matched the colors of the restaurant it would have the same effect. 2. We are trying to tie a person to a location, through an object. It would be the same if it had a picture of the Chief Illiniwek 3. If we have only the cop, no barmaid. The cop says he talked to the barmaid and the barmaid pointed out Seaver as the guy who comes with Nichols, then that is hearsay. If we have both come into court then we call it a verbal object. Betts v. Betts The crying is not an assertion. She is not trying to communicate she is simply upset and wants to be comforted. Then she says that Corporale killed her brother. Now this is not offered for the truth of the matter asserted, it doesn’t matter if it is true or not. We are trying to figure out the child’s state of mind, what does she believe, so we can put her in a place that is in her best interest. Even if it is not true, as long as she believes it then she should not live with him. Hearsay Quiz p.153 1. Circ ev. of state of mind. 2. Effect on listener 3. Hearsay 4. Verbal act of obstructing justice. 5. No assertion, no statement.
6. Verbal object, two people testifying as to their recollection. It doesn’t matter what L said. If L had walked over to M and said happy birthday, then M looked at her watch and it was 10 past midnight, then this would work and not be hearsay, so we allow it. When we have 2 people who’s testimony together links up then we call it a verbal marker, or verbal object. 7. This is hearsay, the question should be, who did you see commit the robbery. 8. It is not an assertion that she was unusually accomplished. 9. Effect on listener so not-hearsay. May also be a verbal act. 10. The fact that she joined a club is not an assertion. 11. This is hearsay. 12. Effect on listener. 13. Not an assertion. 14. The jury is the declarant and the jury is asserting that she is guilty of committing the bank robbery. This is hearsay. You may be able to say it is not-hearsay if it is a verbal act, the words themselves establish a legal record. 15. Hearsay 16. He is really saying that his breaks are bad. It is hearsay. 17. Verbal act, solicitation of obscene material. 18. Hearsay, trying to tell the jury, this is what happened. 19. This is a bailment and the words are the terms of the bailment, so it is a verbal act. 20. Verbal act. 21. This is non-verbal conduct that is not intended to be an assertion, so not-hearsay. 22. Circ. Ev of memory or belief. 23. This is a verbal object or marker. 24. This is a verbal act, the words give legal significance to the transaction. This is money for the contract, not to buy beer at the liquor store. 25. 9/8/04 178-96 Sometimes a statement is offered prove both the truth of the matter asserted and one of the other reasons. In this case, the party whom the evidence is offered against can ask for an instruction that the jury can only use the evidence for the other reason. 25. This is hearsay. 26. Here they are both testifying as to their current memory of events. Testifying as to events. This is ok, it is a verbal marker. 27. Hearsay 28. Not offered to prove that they are a high credit risk, we are trying to show effect on listener. 29. Not an assertion. 30. This is a verbal act. Whenever giving money to someone, the words surrounding the act of giving the cash is almost always a verbal act. 31. Reputation evidence is hearsay. 801(d)(1)(a) & (b) are exclusions from the hearsay definition.
(a): 1. Declarant testifies at the trial or hearing 2. Declarant subject to X-E concerning statement 3. Trial testimony is inconsistent with statement 4. Prior statement given under oath 5. Prior statement was made at a trial, hearing, or other proceeding, or in deposition Under California rules of evidence (Article 3 § 1235), prior inconsistent statements are always allowed for the truth of the matter asserted. Back to federal rules. What is meant by “other proceeding.” It started out that this was to include grand jury hearings. The test here is reliability. In most courts a stationhouse questioning session is typically not a hearing or other proceeding. P.163 note 3 gives more insight. We should have a third party, inquisitive, sworn, etc. How inconsistent is inconsistent? Problem 4-A Inconsistency: Whether a reasonable person could infer, on comparing the whole effect of the two statements, that they had been produced by inconsistent beliefs. Would a reasonable person conclude the two statements differ in any material respect? p.164 note 1 – Inconsistency can be found in statements where there are evasive answers, silence, or changes in positions. California will say that your statement is inconsistent when you don’t remember anymore, only if you are faking amnesia. The judge decides if you are faking. If you genuinely lost your memory (brain injury, etc.), then the statements are not inconsistent, thus the prior statement can not get in under this rule. What about the 2nd element. In the Owen case the supreme court said as long as you get in the chair and answer questions, that means you are subject to cross, even if you say you don’t remember. 801(d)(1)(b) At common law prior consistent statements were always admissible for rehabilitation of a witness, but not for the truth of the matter asserted. Common law rule said that the prior statement must be made before the improper motive arose. Now prior consistent statements are admissible for truth of matter if: 1. Declarant testifies at the trial or hearing 2. Declarant subject to X-E concerning statement 3. Trial testimony is consistent with prior statement 4. The prior consistent statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive In order for a prior consistent statement to be admitted for the truth of the matter asserted, it must be made before the improper motive arose. We think all prior consistent statements are still admissible for rehabilitation, and if they meet the requirements then they are also admissible for substantive purposes.
State v. Motta Wendy was a cashier and was robbed at gunpoint by a man on April 26. She described the man to the police soon after. Then on May 6 she described the man to police sketch artist. June 3 she picked a man out of a picture book. Is the composite sketch admissible? Bruton v. U.S. Postal inspector testified that Evans said Bruton and I committed the robbery. Court instructs the jury that the confession can be used against Evans and not Bruton. The appeals court reverses Evans conviction because the confessions was improperly admitted, but not reversed Bruton because the limiting instruction already protected him. 9/10/04 With prior consistent statements it can also be a third party on the witness stand as long as the declarant testified at some point prior. Prior to the federal rules there were 2 kinds of prior consistent statements. One category was allowed to rehabilitate the witness after they had been accused of an improper motive or influence. The other kind (category two) was to rehabilitate a witness after they have been impeached because they have a bad memory. Everything that was admissible is still admissible, but the first category can now come in also for the truth of matter in addition to rehabilitate. Category two are only admissible for rehabilitate. Only first category can come in for both rehabilitation and TOMA. Category two can no longer come in at all. Both first and second category (all prior consistent statements) are now allowed in for both rehabilitation and TOMA. There is a 5-4 decision that says the prior consistent statement must come before motive arises to satisfy the 801(d)(1)(b) rule, no bearing on category two. 801(d)(1)(c) 1. Declarant testifies 2. Declarant subject to cross 3. Declarant made identification after perceiving the person Descriptions do not count, identification does count. What is perceiving? Voice recognition does count. Admissions are generally admissible, but why? At common law we have an assumption that if you say something then you can’t complain about the jury hearing it. 801(d)(2)(A) 1. The statement is made by a party
2. Statement offered against the party Very broad. It can be a statement that, when you make it, you think is in your best interest. It can be an opinion statement, you may not even be aware of the statement. Confrontation clause – If you are accused, you have a right to confront witnesses against you (6th amendment). The confrontation clause on applies to criminal cases. But what does the clause mean. It means that with some hearsay evidence where the witness against you must testify. 4-B Carter is the declarant. This is classic 801d2A Remember to not get confused between 801d2A and 804b3 Note 3 makes clear that the statement themselves, the admissions, need not meet requirements that must be met if a witness was testifying in court. This has to do with makings statements that you normally would not be qualified to make or that you were speculating about. Note 4 says that you can not object and say that you were drunk when you made the statement so it is unreliable and should not come in. If you were totally incoherent then it will not be admissible. The exception is that statements made to the police are more likely to me inadmissible. This has more to do with crim pro. Talking in sleep usually does not qualify as admissions. What about minors? Some kids are old enough to make statements out of court but not old enough to testify. Minority rules is probably that if a kid is not old enough to testify in court then their out of court admissions should not be allowed in. Majority disagrees. 4-C Whalen is the declarant, interesting because he made the statement in court, but it still qualifies as an out of court statement because it was a different trial. Here the statements are admissible as admissions, but the party can bring in evidence to contradict it (say he plea bargained). Note 2 When dealing with traffic citations, we will declare the payment of money or admissions as not admissible. Often people pay or plead guilty of minor traffic infractions just to not have to spend time on the issue. This is a state by state thing. Note 4, pleading no contest is not considered an admission. The general rule is that limiting instructions (rule 105) are ok unless in a situation of spillover confessions. Because of the confrontation clause, confessions by a codefendant that implicate the other defendant are not admissible if they are tried together. A limiting instruction will not suffice. The prosecution can redact, unless it leaves obvious gaps. The prosecution can try them separately. Empanel two juries.
Have co-defendant testify (still not admissible against the other defendant, but can be used with a limiting instruction in this case) Don’t use the evidence 196-213 US v. Hoosier Hoosier was convicted of bank robbery Girlfriend says to a 3rd party that you should have seen the sacks of money. Hoosier remained silent, did not refute at that point. Is that hearsay? Doyle v. Ohio Miranda silence is paramount. Mahlandt v. Wild Canid 9/15/04 213-227 Problem 4-D No confrontation clause issue because it is a civil case. The fact that Napton said he was speeding can’t be used against Ace but can be used against Napton. The brake part can not be used against Napton because it is not a statement by Napton to be used against Napton (Napton is not responsible if the brakes just failed). It is also not admissible against Ace because it is not a statement by Ace. 801(d)(2)(B) – Tacit admissions or adopted admissions 1. Statement is which party manifests adoption or belief in truth 2. Offered against party Silence can be a statement. If someone says we committed the robbery and the defendant does not say anything then that silence could be an adoption of the statement. The test for silence is “would probable human behavior have been to deny the statement” It is normal behavior for attorneys after a phone call to send a confirming letter to other attorney’s. In that situation if you do not respond then it will be considered that you adopt the contents of the letter as true. If you are trying to get a tacit admission in you must show: 1. The party actually heard the statement 2. It concerns a matter within the knowledge of the defendant 3. Under the totality of the circumstances, probable human behavior would be to respond. Can be countered by showing: 1. Did not hear or understand
2. Lack of reply can be explained (I was rushing to the hospital) 3. Speaker is likely to be ignored (I never respond to this guy) 4. Post Miranda Can not use post Miranda silence to impeach. But, if you get on the stand and say you told the cops something, but actually you were silence to the cops, then your silence can be used in court to impeach you. Problem 4-E Who decides whether probable human behavior would be to respond? Judge or Jury? The authors say this first situation is harmless enough so let the jury decide. The second one is more damming, more likely that the guy would give a negative response, so the jury gets to hear this with no limiting instruction. Generally when there are questions of admissibility the court makes that determination. 801(d)(2)(C) 1. Statement by person authorized to speak on party’s behalf (on the matter) 2. Offered against party Problem 4-F Admissible against the plaintiffs, because the lawyer wrote the complaint and he was authorized to do so. Admissions in response for a request for admission is only admissible in the case at hand, can not be used in other cases. 801(d)(2)(D) 1. Statement by party’s agent or servant (usually employee) 2. Concerning matter w/n the scope of agency or employment 3. Statement made during existence of agency or employment 4. Offered against the party What about statements by govt employees? Generally speaking, the higher up the food chain you are, the more likely that your statements will be binding against your govt employer. Bourjaily v. U.S. Greenhouse was informant for the FBI. Greenhouse arranged to sell a kilo of cocaine to Lonardo. Lonardo said he had a friend who had some questions. The plan was for Greenhouse to give the cocaine to Lonardo and Lonardo would put it in the friend’s car. After the transaction police arrested Lonardo and the friend and found $20,000 in the friend’s car. Can the phone conversations between Lonardo and Greenhouse be used against the friend? 9/17/04
227-45 Rule 805 Hearsay within Hearsay. If so, then each link needs to have a hearsay exception. Some courts say that if it is within a business organization then we do not need an exception of each link of hearsay within hearsay. 4-G Can we use the contents of the statement to prove agency that would allow the statement to be admissible? Well, the contents can be considered but are not alone sufficient to prove agency, etc. There must be other independent evidence. 801(d)(2)(E) 1. Declarant part of conspiracy 2. Defendant part of conspiracy 3. Conspiracy existed 4. Statement was made during pendency of conspiracy 5. Must be made in furtherance of the conspiracy (when I make the statement as a declarant am I trying to further the objective of the conspiracy) 6. offered against the party This can come up in civil cases as well as criminal, there is no requirement that the D be charged with conspiracy to use this exception. When this exception is used the person trying to prove that the exception exists must also prove the conspiracy exists by a preponderance of the evidence. Note 4. When we are putting in a hearsay statement under 801d2E, it is a good idea to lay the foundation of the conspiracy before the jury first. The reason is, if the jury hears something that is hearsay, on the basis that later on, the conspiracy will be proven making the statement admissible, then if the conspiracy is never proven then we may have a mistrial. 4-H Post arrest statements are not made during the pendency of the conspiracy, it is from the declarant’s point of view. Note 2. If the drugs are acquired and sold, so the conspiracy is basically complete, and now you are trying to hide the money and hide the crime, this is considered that the pendency of the conspiracy is over. Only still going if it is clear that hiding the money is part of the conspiracy. Note 3 Courts don’t consider statements made in furtherance of a conspiracy as verbal acts, even though the statements themselves may be a crime.
Nuttall v. Reading Co. Florence Nuttall sued Reading Railroad because she claimed Reading required her husband to report to work even though he was ill. The court excluded (1) two affidavits, (2) her own testimonial account of her husbands phone conversation with the yardmaster, and (3) testimony by the fireman about remarks Nuttall made in the trainyard on the day in question. U.S. v. Iron Shell Time alone is not dispositive, also look at age, physical and mental condition. Statements must not be a result of reflection and deliberation. 9/20/04 245-66 Hearsay risks: Misperception Ambiguity Faulty Memory Insincerity 803 exceptions to the hearsay rule. 1-8 and 18 are the major exceptions. 803(1) 1. Statement describing or explaining event or condition 2. Made while declarant perceiving event or condition, or immediately thereafter (matter of minutes at most) Perceiving can be any of the senses, not just seeing. Generally thought that Faulty Memory and Insincerity are eliminated as risks in this scenario. Note 9. What if a person who is hit in a crosswalk says before I was hit, I heard a bystander yell, “look that car is running a red light”? The way the rule is written this will be ok, some courts say we needs some corroborating evidence that the bystander actually said this. 803(2) 1. Statement relating to a startling event or condition 2. Made while declarant under stress of excitement caused by event or condition Factors for how long under stress of excitement: age, physical and mental condition, events themselves. Even if you are in a coma for 3 days and then wake up and start blabbering about the event, that could be ok. Some courts say that if you are assaulted, and then two weeks later see that person in a police lineup, and then recall the stress of that assault, then that is ok under the rule.
4-I The event or condition is the sharp pain coming about in his chest. Does the rule require that there be independent corroborating evidence to show that there was in fact an event or condition in the first place. The rule itself does not require corroboration but some courts say they need some corroborating evidence, usually very small amount of evidence will be enough. In this situation it could be that he came home early, and that he died. 803(3) – State of mind exception This is different than the state of mind exclusion, in that case it is not offered to prove the truth of the matter asserted, just trying to prove the state of mind of the declarant. Here we are trying to prove the truth of the matter asserted. Minimizing risks of misperception and faulty memory. 1. Then existing physical condition (existing at the time the statement is made), or then existing mental or emotional condition
9/22/04 266-84 803(3) 4 exceptions Then-existing physical condition (pain, bodily health) Then-existing emotional/mental condition (intent, plan, motive, design, mental feeling) Subsequent Conduct Facts concerning a will 4-J If charged with extortion then it is offered to prove the truth of the matter asserted. This is 803(3), then existing mental condition. Saying “I am afraid of Neff.” In an extortion case it is relevant because you must show that the victim was afraid. If the charge was murder, it still meets the 803(3) state of mind exception, but probably won’t be let it because it is too prejudicial and not as probative as when the charge was extortion. 1st party Hillmon – I made a statement of my intention and that is used to prove my state of mind or subsequent conduct. 3rd party Hillmon – I am going to the park with Scott. Using it to prove the state of mind of Scott. The advisory committee says they leave Hillmon undisturbed. But are they saying they are leaving 1st party or 3rd party or both undisturbed. The House says 1st party in and 3rd party out. The court says, if the declarant is around then we will not allow 3rd party Hillmon. If the declarant is dead or otherwise unavailable then we will allow 3rd party Hillmon. The court says we also need some independent evidence of the 3rd party’s actions.
Most courts follow the Pheaster rule: If the declarant is dead or unavailable and we have independent corroborating evidence that the 3rd party did in fact go where the statement says he is going to go, then we will allow 3rd party Hillmon in. Problem 4-K 1. State of mind exception but too prejudicial, out. 2. Can say that it is hearsay but there is a subsequent conduct exception, or can say that it is not hearsay because it is circ ev. of state of mind. 3. Relevant, not hearsay. Facts about a declarant’s will. When a declarant makes a statement about the terms of his/her will, that is an exception to the hearsay rule. For this exception you are allowed to look backward. “Last week I disinherited my son.” This is ok because it is about his will. Last week I was mad at my son does not get in because it is not a then-existing mental condition, it is a statement about a condition last week (prior condition). 803(4) 1. Statement made for purposes of medical diagnosis or treatment; and A. Statement describes medical history, or B. Statement describes past or present symptoms, pain, or sensations, or C. Statement describes inception or general character of the cause or external source (be careful, must be general: I got hit by a car is ok, but I got hit by a car that ran a red light is not ok); and 2. Statement reasonably pertinent to diagnosis or treatment When we are dealing with kids, if the assailant is a member of the household then the identity is pertinent to the diagnosis. The doctor to treat effectively should not send child back to family. What about psychiatrist? Can they say everything you say to them because it is all relevant to treatment? Tough call, most of the time people don’t call psych to stand because then you waive privilege. Does the declarant have to be the injured party? No. Also does not need to be made to a doctor. Ohio v. Scott Randy Scott was convicted of shooting three persons, two of them cops, while chasing one man with the intent to kill him. At trial, a statement given to police by a witness the day after the shooting was admitted even though she could not remember what she said at the day of the trial. The statement was admitted under the “past recollection recorded” exception. It is allowed.
Petrocelli v. Gallison Dr. Gallison performed a hernia operation on Petrocelli, after the operation Petrocelli had severe pain. He went on to have two more operations and never got better. He sues because his wife says the first doctor told her he cut a nerve. He loses but appeals because two statements were left out. He is trying to get them in under the business records exception. Not allowed in because not sure where the other doctors got the information, that the nerve was severed, to put in the reports. Could have gotten in under the medical records exception, but too bad, not reversible. Norcon v. Kotowski Kotowski was sexually harassed by her boss and she recorded it. They were both fired. She sued and won 3.8 million. Norcon appeals that the security dude’s memo about the sexual harassment that was going on should not be admissible because the security dude got the info from two guys who were not acting in the course of their business. Court says not admissible under that exception but admissible under the admissions of a partyopponent exception. 9/24/04 284-301; 355-59 803(5) – This one requires that the declarant is actually in the witness chair 1. Memorandum or record 2. Concerning matters about which witness once had knowledge 3. Now knowledge is insufficient to testify fully and accurately 4. Statement made or adopted by witness (not in court, but at the time the record or memorandum was produced) 5. While fresh in witness’ memory 6. Correctly reflects once-fresh knowledge If admitted, the memo or record is not given to the jury, just read to the jury, unless the opposing party wants the jury to have it. What some courts say you should do is give the memo to the witness and have them read it. Then say is your present recollection refreshed. If so, then put the paper aside and go based on the witness’ present recollection. If the witness can still not remember, then use 803(5). Judge decides if this exception is met. Courts are becoming more lenient about the 6th element. If you basically vouch for its accuracy then it is ok. How fresh is fresh? Longer timeframe than minutes. Must be within enough time to be reliable. Courts have gone as far as 3 years, but that is unusual. Does not need to be satisfied by one person. Can have a bystander that told the security guard that the robber left in a car with the license plate number ABC123. If both bystander and security guard are put on stand that that is ok.
803(6) – Business record exception, works even for illegal enterprises, but not personal checkbooks. 1. Record of business in any form 2. Concerning acts, events, conditions, opinions, or diagnoses 3. Made at or near time by, or from info transmitted by, person with knowledge (the person with knowledge transmitting does not need to be in the business, but then we need a separate hearsay exception to get it into the business) 4. Made in ordinary course of business 5. Kept in ordinary course of business 6. Foundation Unless not trustworthy – The court has discretion to say it just does not seem trustworthy As long as transmission is going through the business, then it is all compressed in to one exception. If the transmission is going in or out of the business, then we need a separate hearsay exception. Business records are self authenticating if they meet the requirements of 902(11) or 902(12). What about an incident report. Something happens at Wall-Mart, someone gets injured, usually fill out an incident report. The original rule was that incident reports were not admissible because they are made with an eye to litigation, sugar coat it. Post federal rules there has been some question raised. Now there is no bright line rule, instead they are allowed in now especially when they are offered against the part who wrote them, but otherwise the trustworthy aspect is used to determine if they are allowed in or not.
1. Norcon, Inc. v. Kotowski (278) Public Records (FRE 803(8)) Records of a public office or agency setting forth o Activities of office or agency – “what we did” o Matters observed and reported pursuant to duty, excluding reports by police or other law enforcement personnel in criminal cases – “what we saw” o Factual findings from investigations pursuant to legal authority, except against criminal defendants – “what we concluded” Unless Trustworthy! A police report is a public record and comes in unless untrustworthy; 4 factors to determine: o 1) report timely o 2) officer had experience/skill o 3) no formal hearing held (but just a factor) o 4) no indication of improper motive
Baker v. Elcona Homes Corp. (285): police report = public record Facts: P’s were the victims in a car accident at an intersection of a highway. The D’s driver was in a truck (during course of employment), and the P’s were in a car. One party was blinded by the sun and the other could not remember anything, so no testimony as to color of light. The investigating police officer made a traffic accident report in which he found that the car had ran the red light. Procedural: The trial court admitted the police officer’s report (under the recorded recollection rule), and the D’s won. P’s appealed, claiming that it was error to allow the report as hearsay. Issue: Whether the police report was admissible under the public records exception of 803(8). Yes. Reasoning: A police report is a public record because it was made upon matters he had the duty to report. The police officer’s written statement that the car ran the red light was independently trustworthy as a “factual finding” because it was timely made, the officer had special qualifications and experience, and the officer was impartial. The burden was on the P’s to show that the report was untrustworthy, and they made no effort to do so. The report contained statements made by the opponent, they were admissible under 801(d)(1)(B) (prior consistent statement) to corroborate the driver’s testimony because the XE of the driver implied that his testimony was inconsistent with prior statements. *United States v. Oates 1) law enforcement personnel is very broad 2) can’t use 803(6) to overcome 803(8) with criminal D’s; w/ the exception of 803(5) b/c the witness is sitting in the chair so no Confrontation Clause problems Facts: Oates was arrested for heroin possession, and at the time of arrest, was carrying a “white powdery substance.” The U.S. Customs Service chemist prepared a lab report on the powder which indicated that it was indeed heroin. Procedural: At trial, the chemist was suddenly sick on the day he was to testify, and so another chemist testified in his place to interpret the report. However, the trial court refused to allow the actual report in since the preparer was not available, and rule 803(8)(B) excludes public records prepared by law enforcement personnel from being used against criminal defendants. Issue: Whether the report is properly admissible under the 803(8) exception for public records, given that this is a criminal trial. No. Reasoning: The chemist is a law enforcement person under 803(8)(B) because he is an integral part of the prosecution effort. The report was a “factual finding” which was the product of an “investigation” under 803(8)(C). Legislative intent: clearly and unequivocally indicates that it was their intention to absolutely exclude all public records made by law enforcement officials from use against the D in a criminal trial. Otherwise, the D would lose the important right of XE and confrontation of the witnesses against him.
THE MINOR EXCEPTIONS:
FRE 803(18) – Learned Treatises o Treatise, periodical, pamphlet has to be shown to be a reliable authority by an expert or judicial notice; AND o Expert has to either rely on it in direct or can be cross-examined on it. FRE 803(7) – Absence of entry in records kept in accordance with the provisions of 803(6) FRE 803(10) – Absence of public record or entry FRE 803(9) – Records of Vital Statistics: birth, marriage, death FRE 803(11) – Records of Religious Organizations FRE 803(12) – Marriage, Baptismal, and similar certificates FRE 803(13) – Family Records FRE 803(14) – Records of documents affecting an interest in real property: conveyence FRE 803(15) – Statements in documents affecting an interest in property: can be used to PTOMA. FRE 803(16) – Ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established. FRE 803(17) – Market reports, commercial publications o Widespread circulation and reliance create reliability assurances. FRE 803(19) – Reputation concerning personal or family history FRE 803(20) – Reputation concerning boundaries or general history of real property FRE 803(21) – Reputation w/in the community as to Character FRE 803(22) – Judgment of previous convictions - felony FRE 803(23) – Judgment as to personal, family, or general history, or boundaries.
9/27/004 803(8) 1. Record of any kind of public agency setting forth A. Activities of office or agency B. Matters observed pursuant to duty, except against crim Ds reports by police or other law enforcement personnel C. Factual findings from investigating pursuant to legal authority, except against crim Ds Unless not trustworthy Analysis of trustworthiness 1) report timely 2) officer had experience/skill 3) no formal hearing held (but just a factor) 4) no indication of improper motive Remember that if there is hearsay in the report then we need a separate exception for that hearsay. The officer to the paper we use 803(8) to get in, but if it is a statement in the report that another person said, then we need a separate exception to get that hearsay in.
Who is other law enforcement personnel – any officer or employee of a governmental agency which has law enforcement responsibilities. Remember confrontation clause issues. Against crim D, can’t use 803(8) to get in matter of public record made by law enforcement. But, sometimes can use 803(5) to get the same info in, but can only do that if the guy who made the record testifies. 803(6) never is a substitute to get around the law enforcement exclusion of 803(8). What if the govt hires a private lab to do the testing? Courts are split. But generally if the lab does regular work for the govt, then they are law enforcement personnel, but if they do it one time then the outside lab would not be considered law enforcement personnel. If the govt employee is simply doing a ministerial duty, like simply writing down license plates, then few courts say it is ok to come in against crim D. In few courts a city building inspector was not considered law enforcement personnel and also a court reporter was not considered law enforcement personnel. Minor Exceptions FRE 803(18) – Learned Treatises o Treatise, periodical, pamphlet has to be shown to be a reliable authority by an expert or judicial notice; AND o Expert has to either rely on it in direct or can be cross-examined on it. For this one, the person must testify at trial. Doctor bases his opinion on a medical treatise. “Tell us about the treatise.” The doctor must establish that it is reliable authority before he can tell us about it. FRE 803(7) – Absence of entry in records kept in accordance with the provisions of 803(6)
Basically saying that absences of statements themselves are not statements. Just to make sure the courts don’t screw this up they put this rule in. FRE 803(10) – Absence of public record or entry
Same thoughts as above. Basically if there are regular records taken, and there is no entry of me coming in, or whatever. This is admissible. FRE 803(9) – Records of Vital Statistics: birth, marriage, death
If you report to a public agency or public office, death, birth, marriage, then that is allowed in. They seem to be reliable. FRE 803(11) – Records of Religious Organizations
Similar to above, but made to a religious organization who keeps records. FRE 803(12) – Marriage, Baptismal, and similar certificates FRE 803(13) – Family Records
FRE 803(14) – Records of documents affecting an interest in real property: conveyence FRE 803(15) – Statements in documents affecting an interest in property: can be used to PTOMA. 14 and 15 deal with real property only. We have reason to believe that documents that are filed relating to interests in real property are reliable. Remember, contrary evidence can always be shown. FRE 803(16) – Ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established FRE 803(17) – Market reports, commercial publications Widespread circulation and reliance create reliability assurances FRE 803(19) – Reputation concerning personal or family history FRE 803(20) – Reputation concerning boundaries or general history of real property FRE 803(21) – Reputation w/in the community as to Character FRE 803(22) – Judgment of previous convictions – felony
The rule does not expressedly allow misdemeanor convictions in, but courts generally allow them. FRE 803(23) – Judgment as to personal, family, or general history, or boundaries
Barber v. Page: Parks was a Lawyer representing two D's (woods and barber) charged w/ armed robbery. Parks then represented only Barber. Woods incriminated Barber at
preliminary hearing. Parks did not XE Woods. Later at trial, the state made no effort to bring Woods into court, and only said he was in OK prison. Possibility of transfer request being denied is no excuse for not trying, and thus will not make a witness unavailable. 9/29/04 804 statements are not as reliable as 803 statements. Thus we need to show necessity as well, we need to show that the declarant is unavailable. “Unavailability” 804(a) Privilege – The witness himself must invoke the privilege Refusal to testify – The witness himself must be ordered to testify and he still refuse Lack of memory Dead or infirm – How sick do you need to be? They weigh the importance of the person’s testimony against how sick they are and take into account the length of the trial, can this person be brought back next week? Bottom line, minor illnesses generally do not qualify as unavailable Unavoidable absence – You have to look for the witness hard enough to convince the court you conduct a good faith effort. If you can get his deposition then he is not unavailable? Unless caused by proponent by wrongdoing – This is determined by the judge by preponderance. Problem 4-L The govt. didn’t do anything wrong in this case. If the govt. does offer to fly her back for the trial then it is ok, she is unavailable if she does not come. If the govt. does not offer to fly her back for the trial then they say she is not unavailable. 804(b)(1) 1. Declarant unavailable 2. Testimony given at a hearing or deposition in same or different case 3. In crim case, offered against party who had similar motive and opportunity to examine declarant at prior proceeding, in civil case, a predecessor in interest had an opportunity and similar motive to examine. In criminal cases if the declarant has testified at a trial, depo, or hearing in this case or other case AND the defendant had a similar motive and opportunity to examine the declarant, then this is admissible. For a civil case we just say that a predecessor in interest had the motive and opportunity. What is predecessor in interest? Most courts say predecessor in interest means similar motive and opportunity. So for a civil case we just say that anyone with a similar interest and opportunity to examine. 10/1/04 804(b)(2) – Dying declaration
1. 2. 3. 4.
Declarant unavailable Homicide or civil case Declarant makes statement believing death imminent Statement concerns cause or circumstances surrounding death
The person doesn’t really have to die. To use this exception in a crim case, the guy must actually die. Imminent means that you think you are going to die now, within minutes. Most courts say the declarant needs personal knowledge of the cause or circumstances surrounding his death. May be that he just hears a voice and recognizes it. Can not be that a 3rd party tells him John shot you, then he repeats it. Some courts say that is ok though.
804(b)3 1. Declarant unavailable 2. Statement at time made was so far contrary to declarant’s pecuniary, proprietary, or penal interest 3. That reasonable person (in that party’s position) wouldn’t make statement unless true. This can get confused by admissions by a party opponent. When a party who is defendant makes a statement we don’t care if it was against interests at the time made. This rule is for when the declarant is not a party. Sometimes there are two interests, interest for the declarant and interest against the declarant. In this situation the court looks to see which interest predominates. The statement is looked at from declarant’s perspective and at the time it was made. Statements against a social interest is not included. O’Connor says that the statement means only the sections or phrases or sentences that are self-inculpatory. There are also collateral statements that can be neutral or self-exculpatory. What about statements to police like “I was buying the drugs from Williamson.” It can be said that the guy is making a statement in his interest because he is trying to tell the cops that he is there to play ball, deflecting blame. Trial court must make the determination if the statements are against interest. Look at the last statement of the rule. This is when X is on trial for killing Y. Z dies. A comes to court and says that Z told him that he (Z) killed Y. This evidence is only admissible if there is corroborating evidence that Z really did kill Y, not that Z said it to A, but that Z did kill why. If it is the other way around, meaning A says that Z said X did it, then no need for the corroborating evidence.
State v. Weaver Weaver was convicted of shaking baby to death. She appealed on the basis of two affidavits that said that baby’s mom said Weaver did not hurt the baby, the baby hit her head on a table. Judge said that the statements were hearsay and fit no exception. Ohio v. Roberts Isaacs could not be found for trial. Roberts said Isaacs gave him the checks and cards telling him he could use them. Court admitted prelim hearing testimony from Isaacs and Roberts was convicted but the appeals court reversed. U.S. supreme court reversed. 10/4/04 804(b)(4) 1. Decl unavailable 2. Statement about decl. own personal family history or 3. That of a relative or others intimately associated with the declarant Some courts will say we need corroborating evidence that you were intimately associated with the other people. 804(b)(6) 1. Decl unavailable 2. Statement offered against party who wrongfully rendered decl. unavailable. Problem 4-N Judge must find by a preponderance that he rendered the decl. unavailable. Judge can hear any evidence he wants. 807 1. Statement has circumstantial guarantees of trustworthiness equivalent to other exceptions 2. Offered as evidence of material fact 3. More probative on point offered than other evidence reasonably available 4. Interests of justice served 5. Notice Reasonable notice to the other side that you are going to offered this evidence under the residual exception. On the exam only argue the residual exception only if it does not fit within anything else. Some courts will say if it is almost as good as an exception, then it is ok to come in. Like just a few hours away from an excited utterance. This is contrary to the rule and is not a good idea.
Some courts say all grand jury testimony can come in under the catch all. This is not a good idea. The most often place where the catch all is used is when dealing with children. CONFRONTATION CLAUSE – ONLY CRIMINAL CASES 4 Theories p. 362-63 1. When there is live testimony against you, you get to cross examine them. 2. Production Theory – If prosecution is going to put in testimony coming from a declarant, and if the declarant is available then you have a right to cross-examine. 3. The reliability Theory – The clause is designed to ensure that only reliable hearsay is allowed in against a criminal defendant. As long as the hearsay evidence is otherwise reliable then your right to confront the witness is satisfied. 4. Testimonial Theory – We want ability to cross examine witnesses if what they are saying amounts to testimony. Constitution trumps the Federal Rules. The only time we need to worry about confrontation clause is when the declarant is not testifying.
Crawford v. Washington Twen Case Court follows Ohio v. Roberts Trying to get the statement in from Sylvia Crawford. She is unavailable because she has a privilege not to testify against her husband. ∆ argues self defense, but Sylvia says the victim was defenseless. Washington gets it in under 804(b)(3) Washington Court of Appeals reverses. They use a nine factor test for particularized guarantees of trustworthiness. Wash. Supreme Court says that if the 2 statements interlock then the particularized guarantees of trustworthiness. Supreme Court Scalia reads the rule. And finds the word "witness" Goes to the Dictionary. A witness is someone who bears testimony.
Testimony
The history reveals that the right of cross examination is central to the values of the Confrontation clause. Allowing ex parte examinations in criminal trials was a travesty. (Concern) Scalia looks at the cultural context of the confrontation clause. Scalia decides that Roberts is out. Confrontation is only concerned with liability with the cross examination being reliable.
The new test: The confrontation clause excludes testimonial statements only. But what does testimonial mean? examples: grand jury, affidavit, etc. 3 options: 1) ex parte testimony: prior testimony that the defendant is unable to cross; 2) extrajudicial materials: Custodial testimony will always be harked upon. Have to show unavailability and there was previously an opportunity to cross the person when it was given. Scalia thinks that his definition of testimonial is finite. 10/6/04
Ohio v. Roberts 1. Must show the declarant is unavailable, unless the utility of producing the declarant is minimal. This is typically when the hearsay exception you are relying on to get the evidence in does not require unavailability (Eg. All the 803’s). 2. Reliability Firmly rooted exception; or Particularized guarantees of trustworthiness What exceptions are firmly rooted? P. 367 note 4. It means that it is so part of the fabric of our rules for so long that it must fulfill the confrontation clause. The catch all is not firmly rooted. The co-conspirator exception has been argued to not be firmly rooted. Declarations against interests has been argued to be not firmly rooted, just the part about a declaration against a penal interest. TESTIMONIAL STATEMENTS 1. Prior Testimony including preliminary hearings 2. Grand Jury 3. Former Trial 4. Police Interrogation 5. Affidavits 6. Confessions 7. Depositions 8. Statements declarant would reasonably expect to be used prosecutorially. When the hearsay statements offered against a criminal defendant are testimonial, the prosecution must prove that the declarant is unavailable and the defendant had a prior opportunity to cross examine. All 804(b)(1) are fine. What about 804(b)(3)? Those are now inadmissible if those statements were testimonial. If a guy says, “I owe this guy so much money that I hope he does not come after me.” This is not testimonial. So how do we treat it.
Scalia makes a note to exclude dying declarations, he doesn’t say if this rule applies to dying declarations or not. If we have a guy that has been shot and before he dies the cops show up and he says to the cops it was Joe that shot him. Under Roberts it comes in because he is unavailable and the exception is firmly rooted. Under Crawford it should be inadmissible, the statement is testimonial. So we don’t know if the Crawford bright line rule applies to dying declarations. What do we do with hearsay statements that are offered against criminal defendants that are not testimonial? His suggestion is that unless the supreme court overrules Ohio v. Roberts, that is the test for non testimonial hearsay against a criminal defendant. If you kill your witness the rule does not apply. Courts also seem to say that if the witness gets in the chair and answers questions, then that will satisfy you confrontation rights. What if the declarant testifies at a preliminary hearing but the defense counsel chooses not to cross examine the declarant. It seems like this is enough to satisfy the confrontation clause. Just need an opportunity to cross examine. Does the unavailability requirement under Crawford, is that the same as under 104(a)? Seems like it is the same thing. Coy says that when you have a witness testify, you can not disallow the witness from seeing the defendant, unless the trial judge makes particularized finding that the witness will suffer harm from having to confront the accused. 10/11/04 What exceptions are not firmly rooted? The catch-all, and the statement against penal interests. What about particularized guarantees of trustworthiness? We should look at the time the statement was made and look at the circumstances surrounding the making of the statement at that time. We are not trying to determine if the statement is true, we are just trying to look at the time the statement is made and see if it was trustworthy, we can not look back in hindsight and look at corroborating evidence to determine if the statement is true. Rule 407 Subsequent measures taken can not be used to show negligence, culpable conduct, defect in product, defect in design, or defective warning. In CA, it can be used in product liability, just not in negligence or culpable conduct. A federal case in CA uses federal rules under Erie.
It can always be used to show feasibility if controverted, but what is feasibility? Most courts say that is when the defendant says it was physically, technologically or economically impossible. We couldn’t do it, not we shouldn’t do it. Can also be used to impeach, but what does that mean? When the witness raises an issue that we can undercut with the subsequent measure, then we can use it. Basically if the person on the stand says there is no other way to design this product. What about if there is a product, then there is a design change, then there is an injury from the original design? The measure was not subsequent to the injury. In these cases the subsequent design change can be used to prove negligence, etc. 408 – Negotiation Settlements Evidence that one party offered to settle is not admissible. The issue of liability or amount must be in dispute. Statements made in the context of settlement negotiations is also not admissible. Like if the guy said “I am not really that injured, just give me $500.” What if the passenger settled, can the P use this to show that the D is liable. Nope. But we can use it to impeach the passenger if the passenger gets on the stand and says the D was driving safely. If there is evidence that would otherwise be discoverable, then it is discoverable, even though it was referenced in negotiations, like pictures of videotape. But if there was evidence created in the process of settlement, it can not be used. The settlement negotiations don’t begin until there is a dispute and that dispute is to be resolved through settlement negotiations. An effort to buy off the prosecution does not qualify under this rule, it comes in. 10/13/04 Rule 410 – Cannot use certain statements either in a crim case or a civil case. Plea of Guilty that is later withdrawn Plea of no contest Any stmt made in context of pleading guilty or no contest Any stmt made in course of plea discussion which do not result in plea of guilty Except: (1) when part of the discussion are bought in (2) for perjury or false statement Problem – 5Q The initial statements by the lawyer are out based on 410. The other statements are not omitted by 410. Must be talking to a prosecuting attorney for this rule to kick in. Some courts are not comfortable with this rule. Courts have
developed a 2 prong test. If the D subjectively believes he is involved in plea discussions and it is reasonable for him to believe this, then 410 will render it inadmissible. Note 5: Remember that this stuff can not come in even for impeachment, just for perjury. Must charge him with perjury and prosecute him. Defendant can use statements during a plea bargain against the prosecution. But then the whole thing can come in. If there is criminal negotiations it can’t be used in a later civil trial, but if there is civil negotiations it can be used in a later criminal trial, rule 408 does not forbid this. Problem 5-R If it is a deal, then the statements come in. If it was a plea negotiation, and the prosecution let the women go because they determined that they were not involved, then the statements do not come in. 409 – Can not use a person’s offering to pay for medical bills to prove they were liable. 411 – Evidence that one has or does not have liability insurance is not admissible to show fault, or negligence, etc. Can be used to prove agency, ownership, control or bias of witness. If you claim you don’t own the car then evidence can be admitted that you pay the premiums on the policy. 3 Types of Character Evidence 1. Reputation 2. Specific Acts 3. Opinion The most probative is specific act. Common Law said reputation is admissible but specific acts or opinion are not admissible. 405 – When a witness is called to the stand and when character evidence is admissible, then we can hear evidence of reputation and opinion but not specific acts. On cross we can ask about specific acts. Defendant is the master of character evidence. D gets to decide if it will be used. 404 (a) When can we use character evidence only in these situations: 1. Character of the accused 2. Character of the alleged victim – If the defendant says the victim is violent, the prosecution get to say, “you’re violent.” The one instance when the prosecution can bring in character evidence first is when the victim is dead, then we can bring in evidence of the victim’s peacefulness (that the victim did not start the fight). 3. Problem 5-A
Note 2 – Honesty is not pertinent to violence Note 3 – Most courts say law abiding is good enough to be pertinent to violence Note 4 – Should the jury be told that you can find reasonable doubt on character evidence alone? Most courts just say that it is something you can consider but not enough to be reasonable doubt alone. Some court said it is enough and an instruction to that effect should be given. 10/18/04 3 kinds of character evidence: 1. Opinion 2. Reputation 3. Specific instances of conduct (sometimes prior bad acts) General rule is, if character evidence is allowed in, then generally it is opinion and reputation that is allowed in. Character evidence is admissible only when: We can talk about the character of the accused if the criminal accused is the one who brings it up. If the defendant brings it up, then the prosecution can rebut the same. If the defendant attacks or introduces a character trait of the victim, then the prosecution can attack the same character trait in the accused. If it is a homicide case and the defendant is claiming self defense, then the prosecution can bring in character traits saying the victim was peaceful. 5-A p.400 5-B 5-C Must lay the foundation. How do you know the person, how long have you known the person, what opportunities have you had to observe the person. Can not talk about reputation or opinion that has occurred after the fight or incident in question. 5-D Prosecution gets to ask the question only if we convince the court that there is a good faith basis for the questioning. Need limiting instruction that the jury can use the question only to analyze the credibility of the witness, not in establishing guilt or innocence of the defendant. When you open the door to specific instances on cross, then the other side gets to walk through that door. The direct gets to re-direct on specific instances of conduct.
Remember, no extrinsic evidence, no proof that the instances have occurred, we just get to talk about it. Rule 415 – We use character evidence in a civil sexual molestation case. 405(b) – When an essential element of the crime charged is a character trait then we can use specific instances of conduct on direct. For the crime of defamation. X is a lier, then can bring in evidence that X is in fact a lier. Negligent entrustment, show that the driver was an irresponsible person because only then was the owner negligent in entrusting him with the car. In child custody battles the court has to decide which is a better parent. Wrongful death – we can show how much the decedent would have made or how the relationship was effected. 404(a) – Can not use the fact that this person sold drugs before to show that they sold drugs now, but 404(b) says we can use the fact that he sold drugs before to show that he knew it was drugs. D can ask in advance for the prosecution to give them what specific instances they plan on using and for what purpose. 404(b) approach 104(b) Proper Purpose Relevant to purpose 403 Limiting Instructions – If you believe that in fact this instance occurred, then you can consider it only for the purpose admitted, if you do not believe that the instance occurred, then disregard it. Can the defense use 404(b). Someone else has confessed to doing crimes in a certain way, this crime was committed in the same way. Yes, the D can do this. 10/20/04 449-74 404(a) – When admitting character evidence against a crim D, it must be a pertinent character trait, but the accused must bring it up. 404(b) – We can not use specific instances of conduct to prove the person acted in conformity with the behavior. We can use specific instances of conduct to prove other purposes: Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Problem 5-F was used to show intent. He was a drug dealer in the past so he was intending to sell those drugs.
5-H 104(b) – Enough that a reasonable juror could believe him – Yes Proper Purpose – Offered for plan or design. This shows that there is a big plan. Relevant to Purpose – Yes 403 – The court admitted it, but this is a close call. The court admitted it in this case because the other guy admitted so much character evidence that said he was such a good guy. If the plan is to launder money and then evade taxes in the process, and we are charging him with tax evasion then we may be able to admit the laundering money part as part of showing a plan. 5-I 104(b) – Enough that a reasonable juror could believe it – Yes Proper Purpose – Absence of mistake or accident, this is not being offered to show that the person is guilty, just to show that this injury was not an accident Relevant – Yes 403 – The more instances or evidence you have that the prior times were suspicious, then more probative it is. The fact that it was or was not an accident must be relevant to the case. Even if you acquitted of a prior crime, we can use that prior specific instance as long as meet the preponderance standard. Rule 412 In a crim case, generally evidence of sexual behavior of the victim is not admissible except: (a) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; or (b) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused or the prosecution. In a civil case evidence of sexual behavior is admissible if the probative value substantially outweighs the danger of unfair prejudice to any party. Note 2 – If offering sexual history as proof of motive of alleged victim for accusing D of rape, then allowed under the constitution. Note 6 – Trial are generally open to the public 10/22/04 Rule 413
In a crim case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’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. The court can still use 403 to get it out. The person does not need to be convicted of the previous offense, not even need charge to be filed. The person can even be acquitted of the previous offense. Problem 5-L The more similar the offenses, the more probative and less unfairly prejudicial. 414 says that child molestation is the same rules as sexual assault. 415 says civil allows it in as well.
406 (Another way to get in specific instances of conduct to show action and conformity therewith) -- If you can establish that either an individual or an organization engages in a habitual act, then you can use that to show they engaged in the act this time. What is a habit – A response to a particular kind of situation with a specific type of conduct. These are things that are instinctual, you don’t think about it. They are more reliable because you do it semi-automatically. Good and careful driver – This is opinion because not in response to a particular situation. Good driver in the snow on this road – Habit Is “often” enough. Can be, but it needs to be something that is reflexive, almost every time. If a guy goes to church every Sunday that is not a habit. Too much reflexive time. Alcoholism is usually not allowed as a habit. The more thought and/or planning that goes into it, the less likely to be a habit. Do we treat sole practitioner as a business or an individual? If you are incorporated then treated as organization. For organization must be a routine practice. COMPETENCY Rule 601 – Everyone is competent to testify unless they are excluded by the following rules.
Can not have a bright line rule that excludes hypnotically refreshed testimony. Look to see if there is corroborating evidence, make sure it is a licensed hypnotist, video tape it, don’t suggest things, etc. Dead Man Statute – Can not testify as to what the other party did or said if the other party is dead. Beyond the scope of this class. Not in the federal rules, but may be in a state rule.
10/22/04: Class notes Prior Offences by Defendants in Sex crime trials (FRE 413-415) NO CAN b/c AC against 413-415. Little impact b/c need to be in federal court and most of these cases are in state courts. o Evidence of Similar crimes in Sexual Assault cases (FRE 413) D’s sexual behaviour if relevant is admissible. In sexual offense cases then can use prior instances to show action in conformity therewith. Must give advance notice that you intend to use prior conduct: 15 days. 413(c): not a violation of due process rights b/c court can consider other rules, like 403. Court can keep out prior sexual conduct by D when offered by prosecution if danger outweighs probative value. No conviction required for prior sexual offenses to be used against you: offense only means engaged in it. Jury needs to believe by POTE in order to consider it though. Jury can use the information for any purpose, other than convicting for that bad act, but can use to say he did it here. Double Jeopardy: different standards Should women and men’s prior behaviour both come in? 412 says victim, almost always a women, 413 and 414, most often a man. Want to encourage those who have been raped to come forward. o Evidence of Similar crimes in Child Molestation cases (FRE 414) – same as 413 but for child molestation Not limited by 404. o Problem 5L page 424: Testimony of another person who claims he tried to rape her is admissible under 413. Relevant b/c makes it more likely he committed this rape. 403: how probative is this? Is this unfairly prejudicial? Unfair prejudice must substantially outweigh probative value. This testimony P(x) comes in. Remember trying to decide if he did it here! The more similar the offenses the more probative and less unfairly prejudicial. o Evidence of Similar acts in civil cases concerning Sexual Assault or Child Molestation (FRE 415) 413-14 in criminal case, 415 for civil case this information can be admitted. Can be used for propensity so not ltd by 404(b). o The FRE 413-415 came from Congress, not the ACN and the whole world was against it. Most states have not adopted these rules and states are usually the ones trying sexual assault or child molestation cases Habit; Routine Practice (FRE 406)
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Prior instances of conduct offered to prove AICT. 404(b) can be used if offered for another purpose. This is another purpose to show AICT if you can show habit or routine practice. Rule - "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 eyewitness, 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." Establish and individual or org. engaging in a habitual act, than that past conduct can be used to show he did it this time. Habit: once is not enough “Character” is much broader than habit. “Habit” is a response to a particular kind of situation w/ a specific type of conduct. Habit is more reliable b/c it is more reflexive and semi-automatic, not things you contemplate. Courts generally find organizational habits more admissible than individual habits Courts are split on how to treat sole practitioners (there is a slight majority towards treating them as organizations). Needs to be a routine practice. Problem 5O: routine practice can be proved by someone other than the individual who engages in the activity. Person must have 1st hand knowledge. Problem 5M: “Good and careful driver”: opinion evidence not a habit b/c not in response to particular situation. “Good driver in the snow on this road”: habit. Problem 5N: “Often”: needs to be enough where it is a semi-automatic reflexive response. “Goes to church every Sunday”: too much foresight necessary to be habit. “Alcoholism”: not habit evidence The more thought and planning, the less likely it is to be a habit, so make argument. Chain smoke when drink – maybe.
A. Competency 1. Who gets to testify? a) CL: certain classes not able to testify (mentally insane, child, atheist…). General rule FRE 601 – "Every person is competent to be a witness except as otherwise provided in these rules.” o Lightly: differing testimony as to an assault that took place in a prison. Lightly says he was breaking up a fight and in so doing McD stabbed him. McD was ruled insane so was not allowed to testify. 601 says everyone is competent unless they do not have personal knowledge of the matters testifying on. McD’s physician said he was competent. o Even if cannot be prosecuted, can still testify. If have personal knowledge and tell the truth, then can testify…weight issue.
Personal Knowledge (FRE 602) – A witness may only testify about matters to which he has personal knowledge. Evidence of the requisite personal knowledge can be provided either through the testimony of the witness or through extrinsic testimony. o FRE 602 has a two-fold significance: It empowers judges to reject inherently incredible testimonial evidence; and Its personal knowledge requirement is incorporated into FRE 701 o Competency: matter for court to decide under 104. o Personal knowledge: satisfied by preliminary questions. Oath or Affirmation (FRE 603) – "Before testifying, every witness shall promise to tell the truth.” o Fowler: Guy gets charged with tax evasion. Gets into court and does not want to be sworn in and take the oath that he would not lie. FRE 603 is clear. o Note 3: do not need to warn witness of penalty of perjury, but typically done. o Ricketts; Rickets was convicted of raping a 5 year old girl. Child testified at trial that raped her in the ass. She testified that she knew what a lie was, but also she was not sure what heaven was. She knew the diff. b/n truth and falsehood and that she would tell the truth so that was enough. o Note 4: if get on stand, then subject to both direct and XE. Hypnotically Refreshed Testimony o Rock v. Arkansas; states cannot have per se rules that automatically exclude this type of evidence when the wit is a criminal D Gash; the SC says that the denial of a D’s right to call wits to use their hypnotically refreshed memory is a constitutional due process violation. Courts must consider the trustworthiness and not have per se rule. o Safeguards to follow to get this type of evidence in Get an impartial licensed shrink to conduct the hypnosis Document information given to the shrink by both parties The hypnotist should be given a detailed description of the facts from the subject Record the session Only the hypnotist and the subject should be present Dead Man Statutes: Federal rules do not have one. Cannot testify as to what other side said or did if they are dead. beyond scope of this class. o Designed to render incompetent testimony of an interested party relating to transactions w/ deceased party. Federal rules do not follow this presumption.
10/25/04 492-96, 501-14 The rules of professional responsibility do not allow you to take a case where you are likely to be called as a witness. There are some exceptions on p. 467. Rule 606 – (a) A juror can’t be a witness in the same case.
(b) Can not call a juror to talk about jury deliberations, except to talk about extraneous prejudicial information that was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. May be able to get around this by saying that the constitution (6th Amendment) allows this testimony in. Rule 605 – Judge presiding at the trial may not be a witness at the trial. Rule 602 -- Every witness must have personal knowledge of what he/she is testifying to. Judge decides if you are competent (601), the jury decides if they believe you. 611 (c) – Can not lead on direct except when necessary to develop witness testimony. If there is a small child that is shy. 10/27/04 514-538 Rule 612 – If we give the witness a writing to refresh his recollection then these things happen. If the witness uses a writing to refresh prior to testifying the other side gets them if the court determines it is necessary in the interest of justice. Remember this only applies if the documents actually helped or refreshed the recollection. This goes even for privileged documents. 615 – To separate the witnesses. Subsection (3) applies to experts, because they can use what is said in trial to form the basis of their testimony. If federal trial the FBI agent can usually sit in. The rule suggests that witnesses can hear the opening statements. What happens if the witness sneaks in and hears testimony? Depends on prejudice, the court will decide. Same goes for witness transcripts, can not show them the transcript or read them the transcript. But can talk to your witnesses about what other witnesses said. Rule 607 – Any witness may be impeached by any party. 5 categories of impeachment 1. Bias – Witness has some reason to not like you or your party. 2. Defective sensory or mental capacity – You can not see very well, you have a bad memory. 3. Untruthful by disposition – You are just not to be trusted 4. Prior inconsistent statement
5. Contradiction There are two types of evidence. 1. Extrinsic evidence, outside evidence. Ask if this person is the cousin of the D. If the person says no can we bring in outside evidence to impeach. Prosecutor must disclose info on deals made with other witnesses. 10/29/04 Impeachment through bias. Showing that the person on the witness stand lacks credibility because they are biased. We must attack them on truthfulness, can’t just attack them for being a bad person. We can impeach experts by showing they have a financial stake. Not just paying you today, but for the entire case, or for the entire year dealing with other cases as well. Can not have expert on contingency, against public policy. If a person says they were wearing glasses as they witnessed the accident, then you can use extrinsic evidence to impeach. Call another witness to the stand, just do the normal 401 and 403 analysis. What if an expert wants to bring in a report about how memory works. Split of authority, most courts say, no, people know generally how memory works and credibility issues should be left to the jury. 404(a)(3) applies to anyone who gets in the witness chair. It could be the party or the D or whoever. When we get a witness in the witness chair we can use character evidence to impeach that witness consistent with the rules of 607, 608, 609. 607 – Any party may attack the credibility of any witness. 608 – (a)(1) – the evidence must related to truthfulness or untruthfulness. (a)(2) – evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked. 608(b) – Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility may not be proved by extrinsic evidence. Specific instances may be inquired into on cross of the witness (1) about the witness himself, (2) about the character or truthfulness of another witness if the witness on the stand has testified about the character or truthfulness of the other witness. Remember, impeachment methods are not covered by the rules. They are allowed. 1. Bias 2. Mental or sensory capacity 3. Untruthful by disposition 4. Prior inconsistent statement
5. Contradiction Marital infidelity is usually not considered probative of truthfulness. Theft is also not considered probative of truthfulness. PRIOR CONVICTIONS 609 – (a)(1)If it is a witness other than a criminal defendant, felonies come in subject to 403. If it is a criminal D, then it comes in if the probative value outweighs the danger of unfair prejudice. 609(a)(2) – for anyone on the stand, if they have been convicted of any crime that involved dishonesty or false statements, that info comes in. (b) – If it has been more than 10 years from the time of conviction or release from prison (which ever is later), then it does not come in unless the probative value substantially outweighs the danger of unfair prejudice. Also there must be written notice to the other side. (c) – If there was a conviction that was pardoned, it does not come in, unless there was another felony conviction since then. (d) – Evidence of stuff tried in juvenile court is generally not going to come in. (e) – Just because it is on appeal does not affect the admissibility. Extrinsic evidence of this stuff does come in if they deny it. 11/1/04 567-81 5 ways to impeach 1. Bias – Witness has a reason to lie. 2. Sensory/mental capacity – The person has bad eyes or whatever. 3. Untruthful by disposition. 4. Prior inconsistent statement 5. Contradiction – Evidence that contradicts what the witness says. 3 level of probative values for crimes. High – Perjury, fraud, embezzlement, forgery, false pretenses Medium – Larceny, Burglary, Robbery, Low – Narcotics, Crimes of violence, Sex Crimes, For 609, what do we need. At a minimum we need the fact that there was a conviction, the name of the crime, and when was the conviction. The trial court has the discretion of inquiring into other facts and circumstances surrounding the conviction. We don’t tell the jury the underlying facts.
When dealing with non-crim defendants the conviction of any felony comes in subject to 403. When dealing with crim D, the prosecution must show that the probative value outweighs the danger of unfair prejudice. When dealing with crim D and a conviction over 10 years, the prosecution must show that the probative value SUBSTANTIALLY outweighs the danger of unfair prejudice. Gordon Factors – For weighing the probative value and the danger of unfair prejudice. 1. Nature of the crime 2. Remoteness in time 3. Similarity to the charged offense – The more similar it is the more unfairly prejudicial it is. This is most important when dealing with a criminal defendant. 4. Otherwise clean record 5. Importance of credibility issues. The higher the level of credibility is at issue the more probative the convictions will be. This is for a he said/she said case. 6. Importance of the D testifying. If we really need the D to testify, then the judge is more likely not to allow convictions in. 609(a)(2) – These high probative crimes are not even subject to 403. They always come in. Cross-examiner does not get to bring up facts about the conviction in the impeachment. Can bring up name and date of crime. On redirect, if the cross-examiner uses the conviction, then the witness can go into the facts. For 609(b) we are not sure when to measure up until. Is it the date charged, the date the trial started, the date the guy is on the stand? No answer for this. Can not use both 608 and 609, can only choose. If you want to use specific facts on cross then can not bring in extrinsic evidence, even the conviction. 11/5/04 581-98 What about a plea of no contest. Those are treated just like a conviction, because you were still convicted, you just didn’t contest it. If a trial court rules that evidence comes in, and then you don’t put the defendant on the stand so it never comes in, or if you put your D on the stand and then bring it up first to soften the blow, then you can not appeal. In the first case we don’t know if it would have come in, in the second case you brought it in first. Prior Inconsistent Statements used for impeachment. 613 – (b) – You can use extrinsic evidence to impeach this person, but you must at some point, give the witness and the opposing party an opportunity to explain.
If it is the other party then no problem because he can explain on re-direct. If you are using another party to impeach then make sure you tell the judge to keep the current witness under subpoena. When you call the other witness to impeach the first one, then the other side has the burden to bring back the first witness to explain, if they can’t find the first witness then that impeachment evidence is lost. Settlement negotiations and plea bargain negotiations are not admissible, even for impeachment. Most courts have also said stuff falling under 409 and 411 also can not be used to impeach. IMPEACHMENT BY CONTRADICTION 1. Evidence you produce impeaches the witness because it contradicts them, but it is also relevant to the substantive issues in the case. 2. Evidence you produce impeaches the witness because it contradicts them, but it also proves another impeaching point (like bias, or defective sensory capacity) 3. Evidence you produce impeaches the witness on a collateral issue. The first two are admissible, the third is usually not admissible. The exception for the third type is that it is admissible only if the collateral issue is so important that if wrong, it calls into question your entire testimony. You can not ask a question on cross-exam, get an answer you don’t want, and then call someone to contradict them. You can not open your own door and walk through it. You can only contradict on what they say, not what you elicit from them. If the direct examination reasonably suggests the cross-question, then we can use extrinsic evidence to impeach even evidence that was illegally obtained. 11/8/04 598-620 Rule 806 – We can impeach a declarant of hearsay as if that person had been a witness. When we attack the declarant we don’t need to give that person an opportunity to explain themselves like in rule 613. Majority of courts have ruled that experts do not have a superior ability to judge credibility than the jury. Can not put on someone who says “I have examined the victim here and using my expert ability I determined she is telling the truth.” We do allow expert testimony on syndromes or scenarios that will aid the jury. If we have a battered women’s syndrome as a defense. An expert can say, “here are the things that typically accompany this type of situation.” Experts are allowed to testify as to physical symptoms. Can have an expert examine the woman and say the injuries are consistent with being raped.
Prior consistent statements. These are admissible to prove the truth of the matter asserted if they meet the requirements of the rule 801(d)(1)(b). 610 – Generally religion of a witness is out. Too much danger of unfair prejudice, confusing the issues, wasting time. Can inquire into religion to show bias. 701 – Opinion testimony by law witnesses You can testify as to things you observe that are with reasonable perceptibility of lay witnesses. p.597 has a list of opinions that you can testify to. 11/10/04 620-43 701 – Lay opinion testimony 1. Rationally based on perception of witness 2. Helpful to clear understanding of witness’s testimony or to determination of facts in issue 3. Not expert testimony Lay witness can not give legal conclusions. Usually not allowed to ask lay witnesses hypothetical questions. 702 – Expert witness qualification 1. Scientific, technical, or other specialized knowledge, skill, experience, training 2. Helps trier of fact understand evidence or determine fact in issue 3. Meets Daubert Experts can offer opinions on things that lay witnesses would not get to offer. There is no preclusion in the rules for experts to also testify as lay witnesses. 703 – Expert Opinion Testimony 1. Facts or data must be of a type reasonably relied upon by experts in field. 2. Facts or data learned Before hearing At hearing From outside sources If it is an inadmissible piece of evidence the expert can rely on it, but it does not come into evidence unless the probative value (value of jury hearing inadmissible evidence to understand how expert came to conclusion) substantially outweighs the prejudicial effect.
Experts don’t have to have personal knowledge, they can hear something at the hearing that is hearsay and make an opinion based on that. Expert generally can not base his opinion entirely on inadmissible evidence. Expert can rely upon statements of interested parties, but we can cross examine on it. Can an expert testify by merely parroting another’s testimony? No, must come up with your own opinion. 11/12/04 757-80 702 – Expert witness qualification 1. Scientific, technical, or other specialized knowledge, skill, experience, training 2. Helps trier of fact understand evidence or determine fact in issue 3. A. Testimony based on sufficient facts or data B. Testimony based on reliable principles and methods C. Principles and methods reliably applied to facts Experts generally are allowed to be led more than lay witnesses. 705 – The expert may testify in terms of opinion or inference without first testifying to the underlying facts or data, unless the court requires otherwise. Cross still gets to ask about it either way. What about if the expert relied on inadmissible evidence? You can not smuggle in that evidence with the witness, he can’t mention it. The other side can bring up that inadmissible evidence. “Isn’t it true that you relied on the horoscope report from the LA Times in determining that the person is crazy?” 9-D (1) Generally courts say that if the only basis for the opinion is inadmissible evidence, then no go. If the doctor was there and used the smell of breath, pupil size, coordination, then probably does get in. 704 – (b) We don’t want the jury to just follow what the expert says when it comes to mental state of a criminal defendant. This is dealing with intent, malice aforethought, insanity, etc. Rule 703 doesn’t prevent a laywitness from testifying as to this stuff, but we would have to lay the foundation showing that the laywitness had personal knowledge. Lay witness must be certain to a degree of “reasonable probability” Everything you discuss with a testifying expert is discoverable.
Not the same with non-testifying experts. Testifying expert must produce a report in advance of testimony that outlines the things they reviewed and gives the opinion. 706 – Court can appoint experts Daubert Factors 1. Testability/Falsifiability 2. Peer review/Publication 3. Rate of error 4. Maintenance of standards 5. General acceptance in relevance community 11/15/04 780-804 Privilege – Privileges govern what juries hear. They are very narrow. Outside of court the attny/client privilege does not apply. Outside of court you have an ethical duty not to disclose any info that your client doesn’t want you to disclose. The client holds the privilege. You have to withhold confidential info unless the client authorizes you to disclose or an exception applies. Problem 12-A Tough situation. 12-B What is it about the communication that is confidential? Telling someone what time the hearing is not for the purposes of furthering legal services. Ministerial communications that don’t reveal things that are intended to be confidential can be compelled. What about taxes. What if you have you taxes prepared by an attorney? Those communications are not privileged because those services are not primarily legal services, those are accountant services. Tax planning advice from a lawyer usually will be privileged. 12-C Is his appearance privileged? No. His appearance is not a communication. What he says is a communication but it probably is not communication for the purposes of legal representation. What about a lawyer simply testifying that the client is or is not competent to stand trial? Split of authority. 12-D
Can we hide documents or evidence by giving them to a lawyer? That is not allowed. The passing of records to a lawyer are not itself a confidential communication. If the client has a 5th amendment right not to disclose it, then that right is not destroyed by telling the attorney. The attorney is an extension of the client for that privilege. Rule: When defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation. If the client gives you an envelope and says burn it. You can not say you didn’t know what was in it. That is not allowed. Don’t burn it. Who falls within the cloak of the privilege? Paralegals, interpreters, etc. If a lawyer brings in an accountant to help interpret the facts of the case then that person becomes a representative and is under the cloak of the privilege. Note 4 says to hire experts early. You do not have to disclose the existence of nontestifying experts. The work they do with you is work product. Don’t have to turn it over unless the other side shows substantial need for it and undue hardship without it. 11/17/04 804-30 Most jurisdictions allow joint-defense agreements which allow the defendant’s attorneys to talk amongst themselves and keep the conversations under privilege. 12-E 1. You can have multiple clients and can assert the privilege on behalf of all the clients. 2. If you want to have one attorney for two people, that is fine, but is something goes south between the two of you, the privilege is lost. The attorney should let the clients know this. 3. This is a situation where there is a joint defense rule. If there is a joint defense agreement then the privilege is not lost. Note 3. If there is an outsider that does not need to be there, like a buddy of the client, then the privilege is off. The info is no longer privileged. Note 4. What if you tell your attorney something and tell him to tell an outsider. Is that info privileged if the lawyer never does tell the outsider? At the time the statement is made it probably retains it’s privilege cloak until it is disclosed. If you want something to be confidential you must take reasonable actions to show that is what you intent was. If the attorney mistakenly sends out confidential material, then you may have waived. You should make the utmost effort to get it back before another party gets hands on it.
Upjohn: The attorney client privilege as applied to a corporation. The old test was the control group test – Only conversations with people who control the corporation were privileged. Upjohn factors: if you do these then communications will be privileged a. The employees of the corporation made statements to the lawyers of the corporation for the purpose of rendering legal advice for the corporation b. The communications concerned matters within the scope of the employees' corporate duties. c. The employees themselves were sufficiently aware that they were being questioned in order for the corporation to obtain legal advice d. The communications were considered "highly confidential" when made and have been kept confidential by the company Need to tell employee that you are not representing them, you are representing the client. If the board of directors changes then the new board is the company and they can waive the privilege, the old board has no power. The govt has a weaker attny/client privilege, because they represent the people. General rule is that a client’s identity is not privileged. There are some exceptions. You don’t have to turn over your client’s identity if you client sought your advice on the very matter he is being investigated. Also you don’t need to turn over identity, if telling you who the client is, is almost the same thing as telling what the client said. Talking about future crimes or fraud are not part of the privilege. If you don’t turn stuff over, the other side can try to compel and it usually goes to a magistrate judge. Then the magistrate judge may issue an order to turn over. The question is can you appeal that ruling? It depends, some courts say you need to defy the order and be held in contempt before you can get an appeal. Just make the argument that the harm in turning the documents over is great. If the order is to compel documents from a 3rd party, that is usually heard on appeal. In a criminal case, if the prosecution needs some documents and are not given them, that is usually heard on appeal because the prosecution can not appeal a final judgment. If a court orders you to turn over documents, and you do, and then it is reversed, those documents regain privileged status. An attorney is not ethically responsible to be held in contempt. If an attorney intentionally turns over documents the privilege is not waived. 11/19/04 733-39
There is no Federal Doctor/Patient privilege, but there usually is a functionally equivalent state court privilege. Rule 504 – Psychotherapist /Patient privilege If you go to a licensed psychotherapist for the normal reasons, then there is a privilege. The question in Jaffee is whether the privilege extends to social workers. Apparently the Supreme Court says yes if they are administering psychotherapy. The patient is the holder of the privilege. If you reasonably believe the person you are talking to is a psychotherapist, and you reasonably believe the communication is confidential, then it qualifies. Also if you are talking to the support staff and that communication is for the purposes of facilitating a relationship with the psychotherapist, then that qualifies for privilege as well. Marital Privilege – There are 2 of them. Testimonial privilege – This allows either spouse to simply say I am not testifying against my spouse. Once the marriage is over the privilege can not be asserted. It can only be asserted during the pendency of the marriage. The spousal confidence privilege is only about confidential info said during the pendency of the marriage, these communications are privileged forever. If both spouses are joint participants in a crime then the privilege does not exist. This is an exception. We think this exception still exists. In Trammel the Supreme Court says only the witness holds the testimonial privilege. If one spouse is charged with domestic violence against the other, then there is no privilege, if charge is child abuse of one of their children then no privileges at all. You can’t marry someone just to give them the privilege of not testifying. This is called a sham marriage. Under the spousal confidence privilege we have 3 elements – 1. Communication 2. Made with the intent to be confidential 3. Made during with the pendency of the marriage For this privilege both spouses hold the privilege, both have to waive the privilege for it to be allowed in court. Maybe treat it the same way the attny/client privilege. If let out negligently then it is out, if let out intentionally then still privileged. Some courts say that whenever one spouse lets it out, then it is no longer privileged. Some courts say the testimonial privilege does not apply in civil cases.
11/22/04 Review for next class Fall 2003 essays 1 and 2. Burdens: 1. Pleading – You have the burden of pleading the elements of your causes of action. 2. Production – Producing sufficient evidence at trial to overcome a directed verdict 3. Persuasion – In a civil case it is more likely than not, in a criminal case it is beyond a reasonable doubt. Usually the plaintiff has the burdens, but the defense has the burden on affirmative defenses. If you don’t meat the burden of pleading you have a motion to dismiss granted. If you don’t meet the burden of production then you have a directed verdict against you. In a criminal case there are no directed verdicts in favor of the prosecution. Burden of persuasion in some civil cases, like fraud, is clear and convincing evidence. If there is a presumption in your favor, that could satisfy the burden of production, but the burden of persuasion still remains. 10-A There is a presumption that operates in favor of a plaintiff against a mover, that if an item was undamaged when given to the mover and then damaged in the end, then there is a presumption that the mover was negligent. Here, absent the testimony of Keenan, Glen wins. The presumption must be rebutted. Adjudicative facts are those facts that can or must be proven if judicial notice is not taken. Or those that a jury must decide if the case is tried before the jury. Judicial notice of adjudicative 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. If there is a fact that is going to waste everyone’s time to have testimony over because either we all know that, or we could all verify that. A court may take judicial notice on its own. A court must take judicial notice if requested and the necessary info is supplied. Judicial notice may be taken at any stage of the proceeding, even on appeal.
In a civil case court instruct the jury to accept as conclusive any fact that is judicially noticed. In a criminal case the court can not instruct the jury to take any fact as conclusive. Judicial Notice: 1. Adjudicative Facts 2. Evaluative Facts – The common sense or common experience applied to interpret or understand facts. If there is a witness that won’t look anyone in the eye, or if a witness is very old a juror may take that into account and give less weight to the testimony. These evaluative facts are not spoken of with the jury. 3. Legislative Facts – These are facts that have nothing to do with the case before the court right now. They are relevant facts that do not relate specifically to the activities or character of the litigants. The court can take judicial notice that kids who are under 21 pose more danger when drinking than people over 21. 4. Law – The case law, the statutes, the administrative materials in that jurisdiction and others. A court takes judicial notice of the law in that jurisdiction, they don’t actually go through a process but they do it. Just understand rule 201. Adjudicative facts. 11A Yes on the fact that it didn’t rain, no on the fact that the pavement was dry. 11B 11C The court will take judicial notice of distances. The court will take judicial notice that you can drive from LA to SF in less than an hour. 11D Court will take judicial notice that football is not broadcast on Wed night. You can dispute it, after the notice is taken you can show the court they are wrong. 11F Court rarely takes judicial notice of causation of anything. The court can’t take judicial notice of things that the judge personally knows, it must be generally known in the territory or jurisdiction.