Evidence Outline _SAL_

Evidence Outline I. Introduction to the Laws of Evidence A. Overview of Federal Rules of Evidence 1. The baseline foundational principle on which the FRE are based on is reliability. 2. FRE 101 Scope – rules governing proceedings in courts to the extent and with exceptions stated in Rule 1101. 3. FRE 102 Purpose & Construction – to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of law of evidence to ascertain truth and justly determine proceedings 4. FRE 611 Mode and Order of Interrogation and Presentation a) Control by Court – (1) To make interrogation and presentation effective for ascertainment of the truth (2) Avoid needless consumption of time (3) Protect witnesses from harassment or undue embarassment b) Scope of Cross-Examination – limited to subject matter of direct examination and matters affecting credibility of the witness 5. FRE 1101 Applicability of Rules a) Courts and judges – apply to US District court judges and courts and some US territories b) Proceedings generally – civil, admiralty, and maritime c) Rule of privilege d) Rules inapplicable e) Rules applicable in part 6. Process a) Client Interview b) Investigation (pre-filing) c) File Complaint d) File Answer e) Discovery Phase (1) Must disclose 4 things: (a) Witnesses (on both sides) (b) Documents (c) Damages (d) Existence of Insurance (2) 3 forms of formal discovery: (a) send requests (b) subpoena (c) inspection (3) goal of the discovery process: (a) to try and win summary judgment (b) for use at trial f) Expert Discovery Phase g) Summary Judgment h) Ongoing witness preparation i) Settlement negotiations j) Mandatory Settlement Conference k) Motions in limine (“at the threshold”) l) Trial 1 Evidence Outline 7. Trial Process a) Jury selection (1) “voir dire” (2) “for cause” exclusions (3) peremptory challenges b) Opening statements c) Presentations of Proof d) Order of Proof (1) Plaintiff case-in-chief and rests (2) Defendant case-in-rebuttal and rests (3) Witnesses (4) Cross-examination (5) Objection (6) Offer of proof e) The record f) Closing argument g) Deliberations h) Verdict i) Appellate process B. Introduction to Evidentiary Decision Making 1. FRE 103 Rulings on Evidence a) Effect of erroneous ruling (1) Objection – admit evidence ruling (2) Offer of proof – exclude evidence ruling b) Record of offer and ruling c) Hearing of the jury d) Plain error 2. FRE 104 Preliminary Questions – a) Questions of admissibility generally – preliminary questions regarding qualification of a person to be a witness, existence of a privilege, or admissibility of evidence is to be determined by the court, subject to (b). b) Relevancy conditioned on fact – when the relevancy of evidence depends upon fulfilment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of fulfilment of the condition. c) Hearing of jury d) Testimony by accused e) Weight and credibility 3. FRE 1101(d) – Rules inapplicable – the rules (other than with respect to privilege) do not apply in the following situations: a) Preliminary questions of fact b) Grand jury proceedings c) Miscellaneous proceedings – for extradition or rendition; preliminary examinations in criminal case; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses and search warrants and proceedings with respect to release on bail. II. Relevancy – Evidence which is not relevant is not admissible (FRE 402) A. Logical (FRE 401) 2 Evidence Outline 1. Definition: "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 2. "Probative Value" – any tendency to prove or disprove a proposition of fact. The threshold that an item of evidence must meet to satisfy the requirement of probative value is very low. 3. "Consequential Proposition" - a fact of consequence to the determination of the action. 4. "Conditional Relevance" – FRE 104(b) – "When the relevancy of evidence depends upon the fulfilment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfilment of the condition." 5. “any tendency” – evidence is relevant if it makes the point to be proved more probable than it was without the evidence. 6. The proponent of the evidence has the burden under 401. 7. There are two types of evidence a) Direct – evidence that if believed to be true then it necessarily establishes the point for which it is offered b) Circumstantial – evidence that even if believed to be true may not necessarily establish the point for which it is offered (tends to show it might be true but there could be other explanations) 8. Two evidential hypotheses: a) Deductive reasoning – "proof positive" of your hypothesis – only one result to come to b) Inductive reasoning – based upon inferences drawn from generalizations B. Legal (FRE 403) (analyze last) 1. Rule: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 2. "Unfair prejudice" – an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. 3. 403 leans in favour of admissibility 4. The trial judge has considerable discretion under 403, and there is an "abuse of discretion" standard of review. 5. The opponent has the burden of proof under 403. 6. E.g. Old Chief: prosecution is able to prove their case by evidence, but when D stipulates as to his guilt, prosecution should not be able to use evidence b/c they are already at 100% proof [they didn’t need the evidence]. a) D’s stipulation ≠ evidence being irrelevant, D was wrong in that claim. b) When D proffers a stipulation, there is less need for evidence  the risk of prejudice weighs more heavily on the balance, and may require exclusion. c) It’s a very limited holding, only applies to cases “involving proof of felony status” C. Limited Admissibility (FRE 105) 3 Evidence Outline 1. Rule: "When evidence which is admissible as to one party or for one purpose, but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." 2. The judge must issue a limiting instruction to the jury to consider the evidence only for its proper purpose. III. Recurring Patterns of Circumstantial Evidence A. Character Evidence Rule of Exclusion 1. General Rule - FRE 404(a) - Character Evidence Generally. Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; 2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; 1) When D brings this evidence in, the prosecution can then bring in that same character trait against the D by using another witness i. ***This is an exception to the D being able to only have CE used against him when he brings it in himself. [looks testable] 2) The prosecution must live with the answers they get from wits [i.e. no EE]. I.e. once they bring in specific instances to rebut D’s wit, they cannot go further and bring in hospital records, etc. i. E.g. once prosecution asks “are you aware D beat his wife”, and wit says “that never happened”, prosecution can’t attempt to prove that specific act, stuck with wit’s answer 3) Prosecution must demonstrate that they have a good faith basis for the questions they ask on cross re: character of the accused. 4) When prosecution brings in specific acts in rebuttal, the defense can then bring in specific acts to counter those claims made by that wit. Once D does that, however, prosecution is allowed to “complete the picture” and the wit can talk about specific instances of conduct. 3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. 2. Approach a) Analyze purposes for which evidence is offered 4 Evidence Outline b) Then ask is the proper type of evidence being offered for that purpose? 3. If the defendant never brings up character evidence of himself or the victim then it will never come into the trial; when you open the door, the other side can walk through as well. 4. Purposes for which Evidence is Offered a) To show character where character itself is in issue – the evidence is admissible b) To show probable past conduct in conformity with character – the evidence is not admissible unless: (1) Defendant's exception (2) Victim's exception (3) Credibility – character for honesty/veracity c) To impeach 5. Types of Character Evidence a) Reputation (1) To lay the foundation, must put in sufficient evidence that you have a basis for what you’re saying. This is done in front of the jury during direct examination (a) Cannot bolster with specific acts (b) Only the reputation before the act at issue is relevant, can’t use rep after the incident at issue b) Opinion (1) To lay the foundation need to testify as to how long you’ve known the person c) specific instances of conduct 6. Methods of proving character (FRE 405) a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. 7. 405(b) When character is an element of the offense, can also use specific acts [on his exams] a) Whether someone is a liar can be brought in under all 3 types of evidence if and only if that character [being a liar] is an element of the charge, claim or defense b) Examples in civil cases (1) Defamation where truth is part of the defense (a) Character of person as being “truthful” is at issue in the defense of truth (2) Negligent entrustment (3) Child custody battles (a) Character of which parent is best fit to look after the kid is at issue (4) Wrongful death 5 Evidence Outline (a) Character of person’s ability to earn a living b/ c of alcoholism may be an issue in D’s claiming that the deceased couldn’t hold down a job B. Other Crimes Evidence – 1. FRE 404(b) – Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show action in conformity therewith. But it is admissible if: a) sufficient evidence that other act occurred b) offered for proper (non-character) purpose i. proof of motive ii. opportunity iii. intent iv. preparation v. plan or design 1. Need an overarching scheme that D is involved in and the prosecution wants to bring in specific acts 2. Need a temporal proximity 3. The prosecution must show a recurring plan or pattern of conduct vi. Knowledge 1. E.g. Huddleson; guy had sold TV’s real cheap to another guy before. Court allowed this in to show that because the dealt with stolen goods before, it’s likely that he knew that this stuff was stolen [not that he actually stole this time] a. Jury makes the call b. Doesn’t matter if you’ve been acquitted, jury can use it if they think there’s evidence beyond preponderance vii. Identity/M.O. – can use prior charges even if acquitted to prove identity 1. Used with distinctive crimes 2. The prior act must bear significantly strong resemblance to the charged offense, and the similarities must be sufficiently idiosyncratic to permit inference of a pattern viii. absence of mistake or accident c) relevant to proper purpose (does it make it more likely 401) d) 403 - is the specific inference of conduct that’s relevant to proper purpose substantially outweighed by danger of unfair prejudice. e) limiting instruction (most courts acknowledge this is marginally helpful at best) 2. Admissibility of prior conduct in rape cases (FRE 412) a) Competing interests are: i. allow defendants to use all relevant evidence ii. protect women who come forward with rape charges b) FRE 412(a) - Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving sexual misconduct, except as provided in (b) & (c): 6 Evidence Outline i. Evidence offered to prove that any alleged victim engaged in other sexual behaviour ii. Evidence offered to prove any alleged victim’s sexual predisposition c) FRE 412(b) – Exceptions (1) in a criminal case: i. 412(b)(1)(A) – evidence of specific instances of sexual behaviour by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence ii. 412(b)(1)(B) – if these two people have consensually had sex before then its admissible. iii. 412(b)(1)(C) – exclusion of evidence which would violate the defendant’s constitutional rights iv. 412(b)(2) – in a civil case, its only admissible if its probative value substantially outweighs danger of harm to any victim and of unfair prejudice to any party d) FRE 412(c) – Procedure to determine admissibility – have to give notice; 412(c)(2) - hearing in camera and afford victim and parties a right to attend and be heard 3. Prior Offences by Defendants in Sex crime trials (FRE 413-415) a) Evidence of Similar crimes in Sexual Assault cases (FRE 413) i. Defendant’s sexual behaviour is relevant and admissible ii. no conviction required iii. doesn’t allow reputation evidence b) Evidence of Similar crimes in Child Molestation cases (FRE 414) – same as 413 but for child molestation c) Evidence of Similar acts in civil cases concerning Sexual Assault or Child Molestation (FRE 415) d) 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 C. Habit; Routine Practice (FRE 406) 1. General 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." 2. Approach 3. “Character” is much broader than habit. “Habit” is a response to a particular kind of situation with a specific type of conduct, and is more reliable because it is more reflexive and semi-automatic. 4. Courts generally find organizational habits more admissible than individual habits 5. Courts are split on how to treat sole practitioners (there is a slight majority towards treating them as organizations). D. Similar Happenings (“Other Accidents”) Evidence 1. Other claims – a) generally inadmissible that a plaintiff has filed lots of lawsuits b) very similar, false claims are often admissible to show the claim in question is also false 7 Evidence Outline c) Prior similar claims of similar losses or injuries – such evidence is admissible if the court, in its discretion determines that the probability of coincidence (bad luck) is minimal 2. Other contracts/business transactions a) Between same parties – may be admissible where relevant to establish terms of contract in question or to interpret ambiguous terms b) With 3rd parties – usually deemed irrelevant (inadmissible); but is sometimes admissible where relevant to show a party’s customary practice or course of dealing 3. Other accidents – (plaintiff introduces) a) Not admissible to prove the ultimate issue of negligence arising out of accident in question b) Often admissible to prove one or more of the particular elements of negligence, such as: (1) Existence of a particular condition (2) Degree of danger created by condition (3) Causation (4) Notice or knowledge by defendant of dangerous condition c) Courts carefully scrutinize other accidents using factors: (1) Substantial similarity requirement (2) Frequency (3) Prior versus subsequent accidents 4. Lack of previous accidents – (defendant introduces) a) Courts scrutinize evidence of absence of other accidents even more strictly because they are concerned about the possibility that conditions of use my have changed b) Most courts apply traditional “substantial similarity” requirement and will allow this type of evidence where safe use or passage is extensive enough to encompass a wide variety of similar situations c) Minority and modern trend – admit to show lack of negligence, lack of knowledge, causation, or non-existence of dangerous condition. E. Public Policy Rules of Exclusion 1. Subsequent Remedial Measures (FRE 407) – "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s design, or a need for warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as providing ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” a) General rule – subsequent remedial measures are not admissible b) Feasibility of precautionary measures – 2 views (1) Broad – D must say that they “shouldn’t have done this.” I.e. that they weighed the risks and dangers and decided to take a certain action 8 Evidence Outline (2) Narrow – [slight majority, and Gash-favorite] is that D must say that the measure were impossible, i.e. that “we couldn’t have done it that way.” c) Impeachment - this can be done when a party says things that are contrary to what they are now doing  can bring in the subsequent change to refute that testimony (1) E.g. engineer testified that stairs were safe when P fell. Testimony that he ordered a change after P fell is allow to impeach his testimony d) Timing – change has to occur before the event (accident), so that the plaintiff would not be precluded by Rule 407, but 403 still applies. Those injured before the design change cannot use the evidence BUT those injured after the design change can use the evidence e) Control and Ownership - e.g. when someone claims that they didn’t have the responsibility to fix something, evidence that they did fix it is admissible since a stranger would hardly undertake repairs f) In CA, Ault is the controlling case; Rule 407 should NOT apply in product liability or SL cases b/c the market requires the change to be made, and the reasons for 407 is a social policy one g) What does controverted mean? – if you dispute it and make it in controversy/at issue 2. Offers to Compromise Disputed Claims (FRE 408) – "Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." a) Rationale: Society wants to encourage settlement negotiations b) You can’t admit statements made in the context of settlement negotiations to later prove liability c) The fact of a settlement or offer to settle by either side is not admissible and the reason you want to settle is not admissible either. d) 408 covers all discussions made in the context of settlement e) Exclusion: you can use evidence of settlement to show bias or prejudice of a witness BUT can't be used for impeachment f) Exceptions (1) Where a P in a past action now testifies for a D in a 2nd action. In this case, the current P can bring up the prior P’s settlement with D b/c there is reason for the prior P to shade his testimony in this action [i.e. b/c paid him off to drop his claim, and testify for them in subsequent actions]. 9 Evidence Outline (2) Statements made in a civil case settlement negotiation CAN be used in a later criminal trial, BUT a statement made in a criminal plea bargain CANNOT be used in a later civil trial, i.e. it works only one way. This is one reason why criminal trials go first; don’t want D altering his statements due to impending civil liability. 3. Payment of Medical, Hospital or Other Similar Expenses (FRE 409) – " Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury." a) More narrow than 408 because only the offering to pay or furnishing of payment is inadmissible. 4. Withdrawn Guilty Pleas/Nolo Contendere Pleas (FRE 410) a) the following are not admissible: 1) a plea of guilty later withdrawn 2) plea of nolo contendere (no contest) 3) any statement made with the above (1&2) 4) statements made to prosecuting attorney not resulting in a guilty plea b) Exceptions - the following are admissible: 5) if defendant wants to introduce; so able to get context (Opening the door) 6) Criminal prosecution for perjury or false statement, then can use can use earlier statement to prosecute him for perjury e) Rationale: Society wants to encourage criminal plea bargains f) The rule doesn’t necessarily mean negotiation with nonlawyers are inadmissible. Courts have held you need: i. Objective reasonable belief that you were in negotiations; and ii. Subjectively believe you are in plea negotiations with a person with authority 5. Liability Insurance (FRE 411) – "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency (employee), ownership, or control, or bias, or prejudice of a witness." a) Courts will redact statements to cut out reference to insurance whenever possible IV. Direct Examination A. Testimonial Proof Foundation 1. bring out background information and fundamental facts 2. lay the foundation 3. ask substantive questions B. Leading questions – should not be used on direct examination (but should on cross-ex) EXCEPT in certain circumstances can use leading questions on direct: 1) when necessary to develop testimony – usually in a child witness situation 2) a hostile witness – when witness is uncooperative/an adverse party 10 Evidence Outline 3) when eliciting preliminary or background information – get through the foundation 4) when refreshing a witness’ recollection (have to be careful here because you don’t want to appear to be leading the witness, but first have to try and refresh recollection in a non-leading way, FRE 612 expressly recognizes this technique). V. Cross-Examination and Impeachment A. Cross-Examination 1. Entitlement 2. Excluding Witnesses (FRE 615) - “The Rule” – if you are testifying later in the case you can’t listen to other witness’ prior testimony in the same trial. At the beginning of trial, either party can invoke “the rule” for testimony and if neither party requests it, the court can do it itself. 4 classes of people are excluded from the rule: a) a party who is a natural person – it is designed to eliminate problems of the Confrontation clause and due process b) 1 designated officer/employee of a party not a natural person (e.g. a corporation) – usually only one designated representative is allowed to stay, but the court has discretion to allow more than one. c) a person whose presence is shown by a party to be essential to the presentation of the party’s cause (e.g. experts). Factors to determine if the witness is essential: (1) importance of the witness' testimony (2) whether testimony is of a kind that is subject to tailoring (3) whether the testimony covers issues that will be addressed by other testimony (4) the order in which the witnesses will be called (5) whether there is any potential for bias that could cause the witness to tailor his testimony (6) whether the presence of that witness is essential or desirable d) a person authorized by statute to be present (amended in 1998 because of Victim’s Rights Act) – the victim's rights statutes supersede Rule 615. The court may only exclude a victim if the victim's testimony would be materially affected by hearing other testimony at trial. 3. Consequences of non-compliance – 3 methods of enforcement have been used by courts for refusing to comply with FRE 615: a) Citing the witness for contempt b) Permitting comment on the witness' non-compliance in order to reflect on his credibility; and c) Refusing to let the witness testify or striking the testimony B. Impeachment 1. Who may impeach (FRE 607) – "The credibility of a witness may be attacked by any party, including the party calling the witness." 2. Impeachment by Bias a) Rests on 2 assumptions: (1) That certain relationships and circumstances impair the impartiality of a witness; and (2) That a witness who is not impartial may shade testimony in favour of or against a party 11 Evidence Outline b) Courts are liberal in accepting testimony relevant to bias c) Limitations on introducing evidence to establish bias: (1) The proffered evidence must meet the relevancy test under FRE 401 (2) The trial court has wide latitude in imposing reasonable limits on cross-examination into questions of bias (3) Abel; wit’s and D’s common membership in an organization [Aryan Brotherhood], even without proof that the witness or party has personally adopted its tenets, is proof of bias. The court used 401 to find the evidence relevant, and therefore admissible (4) Bias can only be demonstrated circumstantially by proof of relationship, conduct, or utterances (can use extrinsic evidence) 3. Impeachment by Defective Sensory/Mental Capacity a) Generally (1) Capacity can always be attacked by a showing impairment in witness' capacity to observe, remember, or narrate. A witness who is incapable of accurate observation, recollection, or communication is less capable than the average person of testifying truthfully, regardless of intent (2) A witness' capacity to perceive the even to which he testifies may be tested on cross-examination or by courtroom experiment (3) Admission of extrinsic evidence to prove incapacity is at the trial court's discretion under a FRE 403 balancing test b) Alcohol and Drug Use (1) Extrinsic evidence is always admissible to show that the witness was under the influence of drink or drugs at the time of the events being testified to, or at the time of testifying. But courts generally exclude unless it has some bearing on witness' ability to perceive or recall events (2) But the courts generally exclude chronic alcoholism as not bearing on credibility (3) The courts decision should be governed by FRE 403 c) Mental Illness (1) Forms of mental illness that don't affect the witness' credibility are not relevant. (2) Even relevant evidence of mental illness may be limited or excluded under 403. 4. Impeachment by Contradiction a) Contradiction undercuts the witness' credibility b) Impeachment by contradiction is authorized by FRE 607 c) Under 607 extrinsic evidence may be admitted to impeach specific errors or falsehoods in a witness' direct testimony, subject to Rule 403 d) Three main principles: (1) if impeaching evidence contradicts and proves a substantive point then its admissible 12 Evidence Outline (2) if it contradicts and proves another impeaching point (usually bias, sometimes defective sensory capacity) then its admissible (3) if it contradicts on a collateral point then the general rule is that it is not allowed UNLESS that collateral point is the lynchpin of the testimony (meaning that if they are lying about that one piece then their whole story falls apart. e) Illegally seized evidence - Havens; if D opens the door, evidence that was illegally obtained may be used against him. If on direct, D makes a statement that reasonably brings to light cross examination on that issue, it can be used against him for impeachment b/c he “opened the door to it”. Prosecution cannot “open their own door” to this information f) The Supreme Court has held (Havens) that it does not constitutionally matter whether the false statements that the extrinsic evidence rebuts were made on direct examination or on cross-examination that was within the scope of the direct 5. Impeachment by Prior Inconsistent Statement a) Rests on the notion that the jury should not believe a witness who is so unreliable as to contradict himself b) 2 tests to determine inconsistency: (1) The inconsistency must be apparent on the face of the two statements. The prior statement will be excluded unless the only possible inference is one of inconsistency. (The federal courts generally reject this test as being too mechanical). (2) The setting and implication so of the statements may be taken into consideration and the prior statement admitted as long as inconsistency is one of several possible inferences that may be drawn. (This is the preferred approach) c) FRE 613 - When using the PINS, don’t need to show it to the wit before asking him about it, but do need to show it on request by opposing counsel. Extrinsic Evidence of a PINS is not admissible unless: (1) The wit is afforded an opportunity to explain or deny it, and opposing counsel has an opportunity to interrogate the wit about it (a) This means that if you bring in EE, must have the wit available to refute it.  Risky to wait until after the wit has left the stand to bring in the PINS with another wit, and must make sure the wit can be called back. If the wit is unavailable, risk losing the testimony of the PINS. Risky, but can do it, b/c if a wit later has the chance to explain it, the Rule is satisfied (b) When there is a Rule that excludes a statement, e.g. 408 [settlement negotiations] and 410 [plea bargains], you cannot even use these to impeach 6. Impeachment for Untruthful by Disposition (Character) (FRE 608) a) 608(a) permits the admission of opinion or reputation evidence of character for the purpose of attacking or supporting the 13 Evidence Outline credibility of a witness, but limits it to evidence referring to the witness' character for truthfulness or untruthfulness. b) 608(b) prohibits the use of extrinsic evidence of specific incidents of the witness' conduct for the purpose of attacking or supporting the witness' credibility, with 3 exceptions: (1) evidence of criminal convictions may be used in accordance with the provisions of Rule 609 (see below) (2) in the trial court's discretion, if the specific acts evidence is probative of truthfulness or untruthfulness, it may be used on cross-examination of a witness concerning the witness' character for truthfulness or untruthfulness (3) in the trial court's discretion, if the specific acts evidence is probative of truthfulness or untruthfulness, it may be used on cross-examination of a witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness subject to crossexamination has testified. c) Character evidence that is not admissible to attack or support credibility under FRE 608, may still be admissible if it is offered to prove some other consequential fact, such as motive, intent, or absence of mistake or accident. d) FRE 609 – Impeachment by Evidence of Conviction of Crime. (1) (a) General rule. For the purpose of attacking the credibility of a witness, (a) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (b) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (2) (b) Time limit – Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (3) (c) Effect of pardon, annulment, or certificate of rehabilitation – Evidence of a conviction is not admissible 14 Evidence Outline under this rule if 1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or 2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (4) (d) Juvenile adjudications – Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (5) (e) Pendency of appeal – The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 7. Can you impeach with otherwise inadmissible evidence? – YES! 8. The 609 Matrix: a) If crime of dishonest or false statement  it’s in unless it’s over 10-years old. No balancing, the dishonest crime just comes in without the TC judge’s discretion. High level of Probativeness b) If serious/honest crime, is the wit: (1) Non-criminal D  use the 403 balancing standard. (2) Criminal D  conviction comes in only if probative value outweighs the prejudice. This casts slightly in favor of inadmissibility, i.e. the tie goes to not admitting it c) If crime is over 10-years old  in only if the probative value substantially outweighs the prejudice. I.e. the PV must be very high; this test is essentially the reverse of the 403 standard d) Lipscomb; TC can inquire into the background facts and circumstances, but need not always do so, TC judge has discretion (1) Judge needs to know about the facts of the prior (2) Jury only gets the name [and date?] of the conviction and the fact that D was convicted of it 9. Probativeness of truthfulness Matrix (first step is determining the nature of the conviction): a) High – embezzlement, forgery, perjury, fraud (i.e things that involve wilful deceit and meet 609(a)) b) Medium – Robbery, burglary, larceny (tend to show that a person is not truthful or honest) c) Low – Murder, assault and battery, rape, drug crimes d) When the crime is in the medium/low category, must look at the Gordon factors, which weigh the PV against the risk of prejudice [PV must substantially outweigh the risk]: (1) Nature of conviction (a) High, medium, low? 15 Evidence Outline (2) Remoteness in time (a) How long ago? (b) More recent  higher the PV (3) Similarity of prior offense to the crime charged (a) More similar  less likely to be admitted [careful, counterintuitive, but the reason is that the risk of prejudice is too high when crime are very similar]. (b) Only used when the D is the witness (4) Otherwise clean record (a) If yes  towards inadmissibility (5) Importance of credibility issues in this case (a) If the case is a “he said, she said” it’s all about credibility, and the court will err on letting stuff in (6) Importance of D’s testimony (a) The more important D’s testimony is  the less likely the court is to admit past convictions b/c we want the D to feel comfortable testifying 10. Motions in limine relating to impeachment by convictions a) Luce; to raise and reserve for review the claim of improper impeachment with a prior conviction, a defendant must actually testify in the case. I.e. D is not entitled to an appellate review of the TC’s in limine ruling if he never takes the stand based on the pre-trial ruling. By not testifying, you waive your right to challenge the conviction coming in (1) Note, Ohler SC case in 2000; if D loses the in limine motion, and then “pricks the boil” on direct regarding the offense, you also waive the right to challenge that on appeal. This punishes D’s for prudent trial practice [Perrin wrote law review article, arguing that Ohler punishes the prudent decision of pricking the boil in favor of efficiency, but points out that it only applies to federal courts, as most state courts haven’t adopted 11. Repairing Credibility a) Not allowed to rehab [with opinion and reputation testimony] wit before an attack has been made, Rule 608(a) (1) Can, however, prick the boil and get a troubling issue out on direct. Wise to do in the following scenarios (a) For any party to adduce testimony by his expert that she is being paid for her services (b) For the prosecution or defense to bring out that a wit has been convicted of crimes (c) For the pros to bring out that its wit has entered into a plea bargain (d) For the calling party to bring out any connection or affinity that she has for the wit (2) Medical Therapy; TC judge has broad discretion to determine whether there’s been attack, under Rule 608, sufficient to allow rehab by showing truthfulness. When cross can be characterized as an attack  TC judge has direction. 16 Evidence Outline b) The repair should be made at the point of attack by the other side, i.e. the rehab must respond to the attack (1) E.g. a wit impeached for having bad eyesight cannot respond with evidence of truthfulness (2) A wit impeached by prior crimes cannot respond that they made a prior consistent statement c) Prior consistent statements as a way to rehab (1) If the statement doesn’t meet 801(d)(1)(B), can still use it to rehab/bolster, but a limiting instruction will accompany it (2) The statement must have been made prior to the alleged bad motive [Tome] (3) If the statement doesn’t meet any hearsay exception, can only be used for rehab, and not for truth of the matter asserted VI. Burdens and Presumptions – FRE 301, 302 (don’t really need to know) VII. Opinion Testimony A. Competency 1. General rule FRE 601 – "Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defence as to which State law supplies the rule of decision, the competency shall be determined in accordance with State law." 2. 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. FRE 602 has a two-fold significance: a) It empowers judges to reject inherently incredible testimonial evidence; and b) Its personal knowledge requirement is incorporated into FRE 701 3. Oath or Affirmation (FRE 603) – "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a forum calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." a) Ricketts; 601 is flexible with children testifying. Little girl’s affirmation was sufficient to impress on her mind her duty to be truthful as required by the rule. I.e. specific affirmation wasn’t required b/c the kid said she knew the difference between truth and falsity 4. Hypnotically Refreshed Testimony a) Rock v. Arkansas; states cannot have per se rules that automatically exclude this type of evidence when the wit is a criminal D (1) Gash; likely that the SC would say that the denial of a D’s right to call wits to use their hypnotically refreshed memory is a constitutional violation b) Safeguards to follow to get this type of evidence in (1) Get a licensed shrink to conduct the hypnosis (2) Note information given to the shrink by both parties 17 Evidence Outline (3) The shrink should be given a detailed description of the facts from the subject (4) Record the session (5) Only the shrink/hypnotist and the subject should be present 5. Lawyer – the modern trend is to regard attorneys with a pecuniary interest in the subject of the litigation as competent to testify, but federal judges have felt empowered to prevent an attorney from doing so on ethical grounds. 6. Juror (FRE 606) a) At the trial – "A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury." b) Inquiry into validity of verdict or indictment - says you can’t inquire into the validity or indictment except if it relates to external extraneous prejudicial influence. (1) Evidence is not admissible to prove (examples of internal influences): (a) A juror's thought processes during the deliberations (b) That a juror or the jury as a whole misunderstood or disregarded evidence (c) That a juror or the jury as a whole misunderstood or disregarded the judge's instructions (d) That a juror voted for a verdict only because he thought that the jury would be kept out indefinitely until agreement was reached (e) That a juror did not in fact agree on the verdict that the jury as a whole reported and affirmed in open court (f) That the jury considered an election of the accused not to take the stand (g) That a juror believed that a guilty verdict with an accompanying recommendation for leniency would assure that the defendant did not receive a harsh sentence (h) That a juror was coerced by other jurors into agreeing with them (i) That a juror's vote would have been different if he had been able to hear evidence the trial court excluded (j) That the jury discussed information that is common knowledge about criminal justice system that was not the subject of evidence during the trial (k) That the jury began its deliberations prematurely, during the course of the trial, rather than awaiting the close of the evidence and the court's instruction 18 Evidence Outline (2) Evidence is admissible to prove a juror's (examples of external influences): (a) Exposure to threats (b) Receipt of a bribery solicitation (c) Possession of knowledge relevant to the facts in issue obtained not through the introduction of evidence but acquired prior to trial (d) Exposure to external psychological influence as to how he should vote (e) Possession of knowledge of the results of a prior trial of the same case (f) Obtaining relevant information during trial through: (i) Unauthorized views (ii) Unauthorized experiments (iii)Independent research or investigations (iv) The news media (v) Books or documents (vi) Consultation during deliberations with parties, witnesses, or other persons 7. Judge (FRE 605) – "The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." 8. FRE 614: what a court can do a) Call witnesses; and the parties are entitled to cross these wits b) Cross examine; if they or the parties called the wit c) Object to the calling or interrogation of certain wits 9. FRE 612 deals with consequences of using a writing to refresh a witness' memory: a) The other side gets it, can inspect it, cross the wit on it and get the relevant portions entered into evidence b) Baker; the stimulus itself is never evidence; it’s just used by the wit to help him spark the memory c) No testimonial competence is demanded d) Only deals with writings; doesn’t deal with hearing, smelling, etc. e) Keep separate from 803(5) f) James Julian; Rule 612 includes attorney work product, which must be turned over if the other side uses it to prep wits. Assemblage of documents in a binder is work product, and by P’s using the binder to prep the wit, they gave up the privilege b/c of Rule 612 B. Lay 1. Opinion Testimony by Lay Witnesses (FRE 701) – "If the witness is not testifying as an expert, the witness' testimony in the form of opinion or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." 2. Elements: 19 Evidence Outline a) Must be rationally based on the witness' own perception b) A lay witness cannot testify as to legal conclusions! c) Must be helpful to a clear understanding of the witness' testimony or the determination of a fact in issue 3. Rationale: C. Expert 1. FRE 702 a) Specialized knowledge, skill, experience, or training b) Testimony in form of opinion or otherwise c) Helps trier of fact understand evidence or determine facts in issue if : (1) Testimony based on sufficient facts or data (2) Testimony is product of reliable principles and methods (3) Witness has applied principles and methods reliably to the facts of the case 2. FRE 703 a) Facts or data must be of a type reasonably relied upon by experts in a particular field (1) Learned before hearing (2) Learned at hearing (3) Learned from outside source (a) Facts or data reasonably relied upon need not be admissible for the opinion or inference to be admitted (b) The inadmissible facts or data may not be disclosed to the jury unless the court finds that the probative value outweighs their prejudicial effect. 3. FRE 705 Disclosure of facts or data underlying expert opinion a) The expert need not give reasons for opinion unless the court requires otherwise – No foundation is necessary b) The expert may be required to disclose the underlying facts or data on XE. 4. Expert must be qualified to testify in their area of expertise 5. General rules on what experts can testify to as far as credibility: a) Experts are not allowed to testify whether a witness is telling the truth or has a truthful disposition b) Experts are allowed to testify to syndromes (e.g. Battered Woman’s Syndrome, Rape Trauma syndrome, and child abuse syndrome). But the expert can only describe the syndrome and give the framework, not testify that the defendant has the syndrome. c) Experts are allowed to testify to physical symptoms and whether they are consistent with the syndrome (can describe what they observe, but not that she should be believed). 6. Daubert – standard for admitting expert scientific testimony at trial a) 5 factors to determine relevance and reliability (1) testability (falsifiability) (2) peer review/publication (3) error rate (the higher the error rate, the less reliable it is) (4) standards (standards that are governing the test) (5) general acceptance 20 Evidence Outline 7. Kuhmo – said that Daubert applied to “technical and other specialized knowledge” 8. CA – follows Frye standard of "generally accepted" VIII. Types of Evidence A. Real – tangible things directly involved in transactions or events B. Demonstrative – tangible proof that in some way makes graphic the point to be proved (e.g. photos, charts) C. Scientific D. Documentary: Approach 1. Relevancy – 401, 403 2. Authentication a) Rationale: to minimize fraud and forgery b) FRE 901 – Requirement of Authentication or Identification (1) General Provision – requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a find that the matter is what the proponent claims (2) Illustrations: (a) Testimony of a witness with knowledge (most common) (b) Non-expert opinion on handwriting – based upon familiarity prior to litigation (c) Comparison by trier or expert witness (can know about it solely for purpose of litigation) (d) Distinctive characteristics and the like (e.g. appearance, contents, patterns, etc., taken in conjunction with circumstances). (e) Voice identification – whether heard firsthand or through mechanical or electronic transmission (f) Telephone conversations – calls placed to a location (g) Public records or reports – if found in place where these things are supposed to be kept (h) Ancient documents or data compilation (i) In condition as to create no suspicion of authenticity (ii) Was in authentic place (iii)Has been in existence for 20 years or more (i) Process or system – evidence that describes process or system used to produce a result and shows how its accurate (e.g. computer printouts, xrays) (j) Methods provided by statute or rule – “catchall” c) Chain of custody; not a rigid requirement [usually more rigid in criminal action] (1) Trouble arises when the 1st person in the chain is missing d) Tape recordings/electronic surveillance 21 Evidence Outline (1) McKeever factors of strict enforcement [MINORITY]: a) Recording device was capable of recording b) Operator was competent to operate it c) Authentic and correct d) No changes made to the tape e) Preserved [i.e. no COC problems]. f) Speakers were identified g) Crim pro issues of whether the tape was voluntarily made (2) Biggins; [MAJORITY] court declined to follow the rigid McKeever requirements: (a) Judge Goldberg expressed the McKeever elements in more general terms, and under this case, they are factors; [with voice ID, follow steps closely: (i) Competency (ii) Failure to alter fidelity of equipment (iii)ID of relevant speakers (iv) Absence of material deletions, alterations, or additions e) Pool; “Chip” placed the call, can't use 901(b)(6). Can't use (b)(4) either b/c he can't prove that he talked to Chip. Court didn’t allow the evidence here. Absent something more than self-ID, authentication is hard when the call was placed to someone [as opposed to them making the call  use telephone records to know who they were calling]. (1) Reply doctrine; if Chip placed the call, and told UC to call him back, and UC did so and made the drop, can authenticate the first call b/c of the reply doctrine. f) FRE 902 – Self Authentication – extrinsic evidence of authenticity is not required with respect to: (1) Domestic public documents under seal and signature (2) Domestic public documents not under seal, just signature, so need another document certifying (3) Foreign public documents (4) Certified copies of public records – a photocopy that has to be accompanied by certification that complies with 1, 2, or 3. (5) Official publications – issued by public authority (6) Newspapers and periodicals (7) Trade inscriptions and the like – purporting to have been affixed in the course of business and indicating ownership (8) Acknowledged documents (notarized) (9) Commercial paper and related documents – if you comply with UCC (10) Presumptions under Acts of Congress (11) Certified Domestic Records of regularly conducted activity – basically business records g) FRE 903 – Subscribing Witness’ testimony unnecessary – testimony of a subscribing witness is not necessary to authenticate 22 Evidence Outline a writing unless required by laws of the jurisdiction whose laws govern validity of a writing. h) Traditional steps to authenticate or introduce an exhibit: (1) Marked for identification (show “chain of custody”) (2) Authenticated by testimony of witness unless selfauthenticating (3) Offering exhibit into evidence (4) Permitting adverse counsel to examine it (5) Allowing adverse counsel an opportunity to object (6) Submitting to court for examination (7) Obtaining ruling of court (8) Requesting permission to have exhibit presented to jury 3. Best Evidence Doctrine a) Rationale: to preserve the truth of the document b) The Best Evidence Rule does not apply to prove lack or absence of contents of a writing (703 trumps 1002) c) There is no hierarchy of evidence once the original has been lost or destroyed. d) FRE 1001 Definitions (1) Writing and Recordings Letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, Photostatting, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs Stills, X-ray films, video tapes, and motion pictures (3) Original The writing or recording itself or any counterpart intended to have the same effect by a person executing it or issuing it. The negatives or any prints are included. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately. (4) Duplicate A counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduces the original. e) FRE 1002 – Requirement of original. To prove the content of a writing, recording, or photograph, the original is required, except as otherwise provided for in these rules or by Act of Congress f) FRE 1003 – Admissibility of Duplicates. A duplicate is admissible to the same extent as the original unless a genuine question is raised as to the authenticity of the original, or in the circumstances, it would be unfair to admit the duplicate in lieu of the original. 23 Evidence Outline g) FRE 1004 – Admissibility of other evidence of contents. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if – (1) Originals Lost or Destroyed All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith (2) Original Not Obtainable No original can be obtained by any available judicial process or procedure. (3) Original in Possession of Opponent When the opponent had control of the original, and was put on notice, yet still did not produce the original. (4) Collateral Matters The writing, recording, or photograph at issue is not closely related to a controlling issue. h) FRE 1006 – Summaries. Large voluminous writings, recordings, or photographs, which cannot conveniently be examined in court, may be presented by chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying by other parties at a reasonable time and place. The court may order that they be produced in court. (1) Sylvania – the original writing must be produced when summarizing unless it is shown to be unavailable for some reason other than serious fault of proponent (2) Must make a reasonably diligent search for lost stuff – up to the judge i) FRE 1007 – Testimony or Written Admission of a Party. Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the opposing party, or by their written admission, without accounting for their non-production at trial. j) FRE 1008 – Functions of Court and Jury. When admissibility depends on the fulfillment of a condition of fact, the question of whether the condition has been fulfilled is ordinarily for the court to determine under rule 104. The issue goes to the jury when it concerns whether the asserted writing ever existed, or whether another writing, recording, or photograph produced at the trial is original or whether other evidence of contents correctly reflects the contents. k) Chattel or Writing? If it’s both, court has discretion to decide which one it is, and therefore whether it’s subject to the BE rule. Suggested factors to determine whether an inscribed chattel will be subject to the BE doctrine: (1) Relative importance of the communicative content of the inscribed object in the case (2) The simplicity/complexity of that content and consequent risk of error in admitting other evidence (3) The strength of the proffered evidence, taking into account corroborative wits or evidence and the presence or absence of a bias on the part of the witness 24 Evidence Outline (4) The breadth of the margin of error within which mistake in any testimonial account or other proof would not undermine the point to be proved (5) The presence or absence of an actual dispute as to content (6) The ease or difficulty or producing the object itself (7) The reasons why the proponent of other evidence of content does not have or offer the object itself l) An eyewitness who testifies as to what he read in a document must produce that document. If the eye-wit observes things with his own eyes, he needn’t produce anything (1) E.g. if a woman is trying to prove that she paid rent, and she was given a receipt, she doesn’t have to produce the receipt b/c she’s not trying to prove it’s contents, only that she paid the rent 4. Hearsay – see below 5. Privileges – see below IX. Judicial Notice – FRE 201 (we don’t really need to know) X. Hearsay A. Approach B. Hearsay Rule 1. Rationales for Hearsay rule a) Absence of cross-examination b) Absence of demeanor evidence c) Absence of oath 2. Hearsay risks a) Misperception b) Faulty memory c) Ambiguity/faulty narration d) Insincerity/distortion 3. Hearsay is presumptively inadmissible!!! 4. FRE 802 – "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of Congress." 5. FRE 801(c) - Definition: 1. Statement a. Oral or written assertion; OR b. Nonverbal conduct of a person, if it is intended by the person as an assertion (usually silence is not intended to be an assertion) E.g. Cain; silence by past hotel guests in not complaining about a heater was allowed b/c the evidence derived its value from D’s who were testifying, and not the past guests who never said anything 2. Made out of court 3. Offered to prove the truth of the matter asserted C. Exclusions (Non-Hearsay Purpose) 1. Impeachment – undercuts credibility of witness 2. Verbal Acts – independent legal significance 3. Effect on Listener – effect on person who heard it (not the declarant) 25 Evidence Outline 4. Circumstantial Evidence of State of Mind - what was in the mind of the speaker (declarant) D. Exemption (Statutory Non-Hearsay) 1. Prior Inconsistent Statements (FRE 801(d)(1)(A)) a) DL testifies b) Subject to XE concerning the prior statement. (The Supreme Court decide that if you are in the witness chair answering questions you are necessarily subject to cross-examination, even if you don’t remember; Owen case). c) The statement must be inconsistent with the present testimony (1) Rule for inconsistent – would a reasonable person conclude that the 2 statements differ in any material respect (2) Lack of memory is inconsistent when witness falsely claims not to recall facts (determined by judge) but NOT if the witness is truly forgetful d) Statement must have been made under oath e) Statement made at trial, deposition, or other proceeding (1) Must have neutral person overseeing proceeding (2) Need a formal proceeding (e.g. if there's a stenographer or transcript) (3) Stationhouse arrests do not meet the proceeding requirement (a) Except in Smith (minority) a notarized stationhouse statement did meet the elements, because reliability is the key **CA approach: the requirements are the declarant testifies, subject to cross-examination, and its inconsistent (allowed for substantive and impeachment purposes) 2. Prior Consistent Statements (FRE 801(d)(1)(B)) a) b) c) d) DL testifies Subject to XE Statement consistent w/testimony Statement offered to rebut express or implied charge of a. Recent fabrication; or b. Improper influence or motive (the key is when the motive arose!) a. E.g. Tome; evidence was hearsay when the statement was made after the alleged bad motive. In order for the statement to have probative value, declarant must have made the statement BEFORE the alleged bad motive arose. i. The dissent says that post-motive statements are not per se irrelevant. ii. Would work when, for example, a guy made a statement right after an accident, to his passenger that party X was at fault. This would rebut a charge that the guy is only saying that now at trial b/c of his relationship with the other driver 3. Prior Identification (FRE 801(d)(1)(C)) a) DL testifies b) Subject to XE c) Statement is one of identification by DL after perceiving the person (ID has to be picking out a person, can’t be a description) 4. Admission by Party Opponent (FRE 801(d)(2)(A)) a) Statement made by a party (in individual or representative capacity) b) Statement offered against a party 26 Evidence Outline a. Bruton options for prosecutor with co-defendants where a statement by one defendant is used against both in a combined trial: 1) sever trials 2) redact the statement 3) hope declarant defendant takes the stand 4) empanel separate juries 5) choose not to use the evidence at all 5. Adoptive Admissions (FRE 801(d)(2)(B)) a) Statement in which party manifests an adoption or belief in it’s truth (e.g. someone says "yes" or "no" to something that was said to them) b) Statement offered against party “Tacit admissions doctrine” – at a minimum requires: 1) party heard statement 2) matter asserted was within knowledge 3) the occasion and nature of the statement were such that a reasonable person would have responded if he did not mean to accept it BUT statement would still be excluded if: 1) party did not understand statement or its significance 2) some physical or psychological factor explains lack of reply 3) speaker is someone party would likely ignore 4) silence came in response to a question by law enforcement (PostMiranda silence can’t be used against a criminal defendant) a. Doyle; silence isn’t always adoption i. Post-Miranda silence can’t be an adoptive admission against a criminal D [not even to impeach]. b. Pre-Miranda silence can be used against you 6. Admission by Speaking Agent (FRE 801(d)(2)(C)) a) Statement by person authorized to speak on party’s behalf concerning the subject (e.g. lawyer, press secretary, etc.) b) Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) 7. Admissions by Employees and Agents (FRE 801(d)(2)(D)) a) b) c) d) Statement made by party’s agent or servant (employee) Concerning matter within the scope of agency or employment Made during existence of agency or employment Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) 8. Co-Conspirator Statements (FRE 801(d)(2)(E)) a) Existence of a conspiracy (court must decide if there is sufficient evidence to show conspiracy by preponderance) b) DL was part of conspiracy c) D was part of conspiracy d) Statement was made during course of conspiracy (pendency) e) Statement was made in furtherance of conspiracy (furtherance) f) Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) ***Bright line rule – once in the custody of law enforcement, the conspiracy is over in respect to you. **After main objective of conspiracy is finished, the conspiracy is over. 27 Evidence Outline E. Exceptions – Rational: Reliability and Necessity 1. Present Sense Impressions (FRE 803(1)) a) Statement describing or explaining event or condition (personal knowledge implied) b) Made while DL is perceiving the event or condition or immediately thereafter (immediate = no time for conscious reflection to fabricate) 2. Excited Utterances (FRE 803(2)) a) Statement relating to a startling event or condition b) Made while DL was under stress of excitement caused by event or condition (length of time between stress and statement depends on magnitude of event or condition) a. Much less rigid time frame requirement [i.e. allows for longer gaps]. i. Generally, the shorter the time frame, the easier it is to get it in. ii. E.g. Iron Shell; wasn’t an 803(1) case b/c of the longer time elapsed btw the event and the police interview. Window of 45-115 minutes didn’t meet (1) but met (2) b. Two cases where a long passage of time has gotten in: i. Declarant wakes from coma, the stress is still on the mind b/c they were out cold ii. When stress reignites, it’s the same as a new event or condition and is still just as reliable c. Don't need independent evidence here d. Can use 803(3) to overcome a 801(d)(2)(D) [party’s agent admission] problem when there is a lack of independent evidence. Only need to meet one, so if there’s a problem with independent evidence, use 803(2) b/c no such requirement. i. Would need the appropriate 803(2) time frame, of course 3. State of Mind (FRE 803(3)) a) Then-existing physical condition (has to be present tense) b) Then-existing mental or emotional condition (as a general rule statements of fear by the victim are not admissible ultimately because of 403) c) Subsequent conduct or intent a. 1st party Hillmon – statements of intent can be produced to show subsequent conduct. b. 3rd party Hillmon – can use statements of intent to show a 3rd party’s subsequent conduct ONLY if you have some sort of independent corroborating evidence. d) Facts concerning a will (reliability and necessity allows us to look backwards) 4. Statements to Physicians (FRE 803(4)) a) Statement made for purposes of medical treatment or diagnosis; and (1) Statement describes medical history; or (2) Statement describes past symptoms, pain, or sensations; or (3) Statement describes inception or general character of the cause or external source; and b) Statement reasonably pertinent to diagnosis or treatment c) This evidence can be used for purposes of identity in certain situations. E.g. Blake, where testimony of medical personnel was 28 Evidence Outline admitted in a child abuse case. In order to get evidence in for identity, need: a. State must lay a proper foundation to justify admission of identity statements under the rule b. The Renville Test: i. the declarant’s motive in making the statement is consistent with the purposes of promoting treatment or diagnosis; AND ii. the content of the statement is reasonably relied on by the physician in treatment or diagnosis 5. Past Recollection Recorded (FRE 803(5)) a) A memorandum or record b) Concerning a matter about which witness once had knowledge (must lay the foundation) c) Now knowledge is insufficient to testify fully & accurately (you have to have tried present recollection refreshed first) d) Statement made or adopted by witness e) Made while fresh in witness’ memory f) Statement correctly reflect witness’ once-fresh knowledge 6. Business Records (FRE 803(6)) a) A record of a business in any form (very broad) b) Record concerns acts, events, conditions, opinions, or diagnoses c) Record made at or near time by, or from information transmitted by, a person with knowledge (source has to be a person with knowledge) d) Made in ordinary course of business (can involve a chain, as long as every link in the chain is in the ordinary course of business) e) Kept in ordinary course of business (regular habit – it is the practice of the business to keep such records) f) (Foundation) As testified to by custodian or qualified person (1) (Unless not trustworthy) 7. Public Records (FRE 803(8)) a) Records of a public office or agency setting forth (1) Activities of office or agency – “what we did” (2) Matters observed and reported pursuant to duty, excluding reports by police or other law enforcement personnel in criminal cases – “what we saw” (3) Factual findings from investigations pursuant to legal authority, except against criminal defendants – “what we concluded” b) Unless untrustworthy *A police report is a public record but doesn’t come in unless not untrustworthy; 4 Baker factors to determine: 1) report timely 2) officer had experience/skill 3) whether a formal hearing was held 4) no indication of improper motive *Oates: 1) law enforcement personnel is very broad (e.g. private company hired by the government counts) 2) can’t use 803(6) to overcome 803(8) with criminal defendants; with the exception of 803(5) because the witness is sitting in the chair so no Confrontation Clause problems 29 Evidence Outline 8. Unavailability Requirement (FRE 804(a)) – deals more with necessity of the evidence a) Privilege – typically have to get on the stand and assert privilege b) Refusal to Testify – on the stand, persists in refusal, despite a court order or threat of contempt c) Lack of Memory d) Dead or Infirm a. Factors to determine if a witness is sufficiently infirm: i. Discretion of judge ii. Importance of witness to this case iii. Nature and extent of cross-examination iv. How long is he going to be gone v. Nature of illness vi. Expected time of recovery vii. Any special circumstances counseling against delay b. Insanity does not disqualify one from testifying, but certain forms of psychological unavailability might, e.g. due to rape and molestation, etc e) Unavoidable Absence – cannot be obtained at trial by subpoena or other reasonable means; have to show a good faith effort and diligent search. (1) Unless availability caused or procured by proponent wrongfully 9. Former Testimony (FRE 804(b)(1)) a) Declarant unavailable b) Testimony given at a hearing or deposition in same or different case (does not cover grand jury proceedings because there is no opportunity for defense to cross-examine) c) Offered against party who had similar motive and opportunity to examine DL in a prior proceeding (1) If in civil proceeding, predecessor in interest must have had a similar motive (a) There must have been a reason to cross examine the guy in the other action. (b) E.g. Lloyd; there was sufficient community of interest shared by the Coast Guard in its hearing, and Alvarez the subsequent civil trial to satisfy the rule. The reason for this is that the CG investigator attempted to establish the same thing that Alvarez did at the later trial; Lloyd’s intoxication and aggression in the fight (c) The Lloyd rule is generally followed  if someone else was there, and had the same reason in the case; it ought to be used against you 10. Dying Declarations (FRE 804(b)(2)) a) DL unavailable b) Civil case or criminal homicide trial c) DL’s statement made while believing death to be imminent (imminent=death near at hand & must be a "settled hopeless expectation") d) DL’s statement concerns the cause or circumstances of what DL believes to be impending death (DL doesn’t have to die, just has to believe they’re going to die) e) Personal knowledge (DL must know how it was that he was going to die) 30 Evidence Outline 11. Declarations Against Interest (FRE 804(b)(3)) a) DL unavailable b) Statement, at the time made, so far contrary to pecuniary, or proprietary interest, or so tended to subject DL to civil or criminal liability that c) Reasonable person in DL’s position would not have made it unless statement was true (1) When there is a statement offered to expose DL and exculpate the accused, the statement is not admissible unless there are corroborating circumstances indicating the trustworthiness of the statement. *3 different scenarios of how and when this comes up: 1) civil arena – very little nuance and complication to this 2) if offered by criminal accused – then there’s no Confrontation Clause problem but have to have something that clearly corroborates substance of the statement 3) if prosecution offers it against criminal accused – problem is that the way the Confrontation Clause is written, it cannot be overcome unless the exception is firmly rooted. *What is a statement for purposes of this rule? a. The Williamson court addressed this issue. There was an integration of self-inculpatory [show his guilt], selfexculpatory [show someone else’s guilt] and collateralneutral statements [neither]. i. Rule; must look at each case and break the statements into pieces in order to determine if the particular statement itself was contrary to one’s penal interest. If the statement is itself against interest  it’s self-inculpatory and it meet the rule. With neutral statements, look at the context 12. Statements of Personal or Family History (FRE 804(b)(4)) a) "A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; OR b) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared." c) Elements: (1) DL unavailable (2) Statement is about DL’s own family history OR that of relative or other intimate associates 13. Forfeiture by Wrongdoing (FRE 804(b)(6)) – "A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." You cannot object to a prior statement if you are the one that caused the unavailability of the declarant! 14. Residual Exception (FRE 807) – "A statement not specifically covered by Rule 803 or 804, but having equivalent guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that: 31 Evidence Outline a) The statement is offered as evidence of a material fact; b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; AND c) The general purpose s of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant." 15. Elements of 807 a) Circumstantial guarantees of trustworthiness equivalent to other exceptions b) Offered as evidence of material fact c) More probative on the point for which it is offered than any other evidence reasonably available (1) Necessity is what is at issue here. This is the most reliable piece of evidence that goes to the point that we can find (2) Weaver; factors to consider: (a) Declarant’s propensity to tell the truth (b) Whether the alleged statements were made under oath (c) Assurance of declarant’s personal knowledge (d) Time lapse between the event and declarant’s statement (e) Declarant’s motivation to make the statement d) Interests of justice are served by admission e) Pre-trial notice given to opposing party **807 is highly fact-specific, look at “freeze-frame” 16. Confrontation Clause – to overcome need to show: a) Necessity – requirement of unavailability unless the exception doesn’t require it; AND b) Reliability (1) Firmly rooted exception – time tested to be reliable (everything except 807 & 804(b)(3) penal interest part); OR (2) Particularized guarantees of trustworthiness (PGT) c) Coy v. Iowa and MD v. Craig cases (1) The Confrontation Clause usually guarantees defendant “a face-to-face meeting with witnesses” which improves the appearance of fairness because “something deep in human nature” regards face-to-face confrontation as essential (2) BUT, the CC can be overcome by a showing of need [e.g. welfare of a child] d) Chambers v. Mississippi (1) This case only stands for the proposition that when states apply their rules of evidence incorrectly, due process prevails. I.e. when all else fails, look for a DP challenge 32 Evidence Outline (2) All states, even Mississippi have rejected the “voucher rule” [says that criminal D couldn’t cross examine a witness that they called] that was at issue in this case 17. Minor Exceptions a) FRE 803(18) – Learned Treatises (1) Treatise, periodical, pamphlet has to be shown to be a reliable authority by an expert or judicial notice; AND (2) Expert has to either rely on it in direct or can be crossexamined on it. b) FRE 803(7) – Absence of entry in records kept in accordance with the provisions of 803(6) c) FRE 803(10) – Absence of public record or entry d) FRE 803(9) – Records of Vital Statistics e) FRE 803(11) – Records of Religious Organizations f) FRE 803(12) – Marriage, Baptismal, and similar certificates g) FRE 803(13) – Family Records h) FRE 803(14) – Records of documents affecting an interest in property i) FRE 803(15) – Statements in documents affecting an interest in property j) FRE 803(16) – Ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established. k) FRE 803(17) – Market reports, commercial publications l) FRE 803(19) – Reputation concerning personal or family history m) FRE 803(20) – Reputation concerning boundaries or general history n) FRE 803(21) – Reputation as to Character o) FRE 803(22) – Judgment of previous convictions p) FRE 803(23) – Judgment as to personal, family, or general history, or boundaries. XI. Privileges A. General Rule FRE 501 – "Except as otherwise required by the Constitution of the United States or provided by an Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." B. Approach (Mnemonic): Relationships Can Create Happiness With Exceptions 1. R=Relationship 2. C=Communication 3. C=Confidential 4. H=Holder 5. W=Waiver 6. E=Exceptions 33 Evidence Outline C. Privileges 1. Attorney/Client a) Proposed FRE 503 (persuasive, not binding) – (1) "Definitions (a) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. (b) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. (c) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services. (d) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. (2) General Rule of Privilege – A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, 1) between himself or his representative and his lawyer or his lawyer's representative, or 2) between his lawyer and the lawyer's representative, or 3) by him or his lawyer to a lawyer to a lawyer representing another in a matter of common interest, or 4) between representatives of the client or between the client and a representatives of the client and a representative of the client, or 5) between lawyers representing the client. (3) Who may claim the privilege – The privilege may be claimed by the client. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do is presumed in the absence of evidence to the contrary. (4) Exceptions – There is no privilege for: (a) Furtherance of future crime or fraud (b) Claimants through same deceased client (c) Breach of duty by lawyer or client (d) Document attested by lawyer (e) Joint clients – if the attorney represents two clients and then they decide to sue each other, the privilege is lost. b) Rationale: The public benefit in encouraging clients to fully communicate with their attorneys in order to enable the attorney to act most effectively, justly and expeditiously in providing sound legal advice, outweighs the harm caused by the loss of information. 34 Evidence Outline c) The client is the holder of the privilege and the attorney has an obligation to assert the privilege on behalf of the client. d) When the 3rd party is a professional, such as an accountant, capable of rendering advice independent of the lawyer's advice to the client, the claimant must show that the 3rd party served some specialized purpose in facilitating the attorney-client communications and was essentially indispensable in that regard. e) As long as the communication is made for the purpose of rendering legal services, it does not matter whether the communications are made by the client to the attorney or by the attorney to the client. f) The corporate client (1) The corporation holds the privilege (2) Upjohn factors (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 (3) The successor of a dissolved corporation may claim the privilege. g) General rule – communications between attorney and client are privileged but not the underlying facts or observations. Exceptions: (1) Furtherance of future crime or fraud – The privilege is lost regardless of whether the attorney was aware of the client's plan. It is the client's intention to use the attorney's services in aid of what the client knew, or reasonably should have known to be a crime or fraud, that controls. (2) Claimants through same deceased client (3) Breach of duty by lawyer or client – When the attorney and client become opponents in a subsequent controversy, the attorney may reveal privileged communications to the limited extent necessary to establish the attorney's rights. (4) Document attested by lawyer – This exception permits the attorney to testify to such matters as the intent and competence of the client and the execution or attestation of the document. (5) Joint clients – if the attorney represents two clients and then they decide to sue each other, the privilege is lost. h) Waiver (1) Attorney-client communications uttered in the presence of a known outsider (if you relay information to a 3rd party the privilege is waived). 35 Evidence Outline (2) If a client communicates information to the attorney with the expectation that it will be disclosed to a 3rd party then the privileged is waived because there is no intent for it to remain confidential. However the information may regain its protection if the client later decides that he wants the information to be privileged, before it is disclosed to any 3rd party. (3) If the attorney deliberately reveals the confidential information without the client's consent then the client's privilege is not lost, BUT if the attorney negligently discloses the information then the privilege is waived ("inadvertent disclosure"). Courts vary on this and have some leeway if the attorney acted quickly to avoid disclosure. (4) A client waives the privilege by failing to assert it when confidential information is sought in legal proceedings (5) The privilege is waived if the holder asserts the privilege in the context of an affirmative act, such as filing suit, that puts the privileged information at issue i) Client Identity – the general rule is that client identity is not privileged with the following exceptions: (1) Last link theory (rejected by court) (2) If the disclosure of identity is tantamount to disclosure of the privileged communication (knowing the identity would reveal actual substance of the communication) (3) If that is the matter in which client is seeking your legal advice ("legal advice" exception – there is a split of authority in the jurisdictions) j) Joint Clients and Pooled Defences – the presence of more than one client at a joint conference does not destroy the privilege when disclosure is in furtherance of the rendition of professional legal services to the client. The privilege attaches to communications made by the client or lawyer to another lawyer representing a person "in a matter of common interest." k) Review of privilege proceedings: (1) The threshold question is whether the person seeking the interlocutory review is a party in the action (a) If they are a party – less likely to get a court of appeals to hear you because you can appeal the final judgement (b) If not – more likely to be heard because you cannot appeal the final judgement as a non-party. Even more likely if the non-party is facing contempt charges. 2. Psychotherapist/Patient a) Proposed FRE 504 (1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist. (2) A "psychotherapist" is (A) a person authorized to practice medicine, or reasonably believed by the patient so to be, while engaged in diagnosis or treatment of a mental 36 Evidence Outline or emotional condition, including drug addiction, or (B) a person licensed or certified as a psychologist while similarly engaged. (3) General rule – A patient has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications. (4) Who may claim the privilege - The privilege may be claimed by the patient or by the psychotherapist on behalf of the patient. (5) Exceptions (a) Proceedings for hospitalization (b) Examination by order of the judge (c) Condition an element of claim or defence b) Rationale: The very nature of psychotherapy is confidential personal revelations about matters which the patient is and should be normally reluctant to discuss. c) In Jaffee, the Supreme Court officially recognized a psychotherapist-patient privilege by holding that confidential communications between licensed psychotherapists and their patients, in the course of diagnosis or treatment, are protected from compelled disclosure under FRE 501. This includes confidential communications made to licensed social workers in the course of psychotherapy. d) Reasonable expectation on part of the patient that it is necessary for the communication to be privileged ("reasonably necessary"). There does not have to be a formalized relationship. e) A 3rd party may only be present if his or her attendance furthers the interest of the patient or is necessary for the transmission of the communication. 3. Doctor/Patient – there is no doctor/patient privilege under federal law 4. Marital a) Proposed FRE 505 (of little assistance) b) Testimonial – can refuse to testify at all as long as you are still married; it’s a complete ban on testimony. (1) C/L – husband and wife were considered one person (2) Hawkins held that the defendant spouse held the privilege (3) Trammel held that the witness spouse holds the privilege and could to choose to testify or not. (4) Joint participants in crime exception – courts are split on whether the privilege is abrogated when the spouses are partners in crime (most courts say privilege is destroyed) (5) "sham marriage" – no privilege if the marriage is for the sole purpose of preventing a witness from testifying (6) Rationale: Necessary to preserve marital harmony. (7) The privilege does not bar the use of the spouse's admissible hearsay statements when the spouse is unwilling to testify c) Spousal Confidences – communication made during the interval of marriage between spouses, which is intended and reasonably believed to be confidential. 37 Evidence Outline (1) There are three prerequisites that must be met to assert this privilege: (a) At the time of the communication there must have been a marriage recognized as valid by state law. (b) It must be asserted regarding a communication. Federal courts have generally stated that the privilege applies only to utterances or expressions intended by one spouse to convey a message to the other and have not recognized observations made of a spouse's activities or appearance as communications covered by the privilege. (c) The communication must be made in confidence. There is a presumption that communications between spouses are intended to be confidential. (2) Divorce or death does not end this privilege. (3) Estes – Normally the confidential communication privilege extends only to utterances and not to acts. Testimony concerning a spouse's conduct where the conduct was intended to convey a confidential message from actor to observer. There has to be intent to communicate confidentially for actions to be privileged. (4) Both spouses hold this privilege (5) Joint participation exception – joint participation destroys the privilege because communications about ongoing or future crimes do not deserve protection. d) Exceptions that apply to both spousal privileges (1) If you commit a crime against your spouse, no privilege (2) Privilege doesn’t apply if one spouse commits a crime against the child of either spouse (3) Privilege doesn't apply if there is a lawsuit between spouses (4) When the communication takes place in front of any person, including a child XII. Error A. Effect of Trial Error 1. Court of appeals generally try to affirm the evidentiary rulings of the trial court 2. FRE 103: Rulings on Evidence (a), Effect of erroneous ruling: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and a) Objection; in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, of the specific ground was not apparent from the context; or b) Offer of proof: in the case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party 38 Evidence Outline need not renew an objection or offer of proof to preserve a claim of error for appeal. 3. With Rule 103 want to give the COA a basis for overturning a ruling  you must offer proof to preserve the record [so that the COA knows what would have gotten in]. a) Failure to object/make an offer of proof  waives your objection at the appellate level b) In order to prevail at appellate level, must show an error below c) With respect to evidentiary issues, no automatic reversal if there was an error. 4. abuse of discretion standard of review 5. standard of review for factual determinations is “clear error” 6. Behavior that blows an appeal: a) Failing to object or offer proof b) Inviting error – if you ask a question to which a witness responds, you're stuck with the answer c) Opening the door d) Failing to file notice of appeal 7. 3 types of error to classify as harmless or reversible: a) ordinary trial error – must affect substantial right and have to preserve your objection b) plain error – error that is committed by trial court and by parties where everybody should’ve known – amounts to a manifest miscarriage of justice. You do not have to object to preserve (very few cases reversed on this ground). c) constitutional error – almost always in criminal context; error where defendant’s constitutional rights were violated (don’t need an objection in the record) B. Harmless Error – mistake that probably did not affect verdict 1. cumulative evidence doctrine – there was already something in evidence that said the same thing 2. curative instruction doctrine – the trial court gave a curing instruction 3. overwhelming evidence doctrine – weight of the evidence overwhelmingly led to the result. C. Reversible Error – mattered enough that it affected outcome of the trial 1. Affected a “substantial right” – outcome of the case probably would have been different if the ruling on the evidence went the other way 2. Preservation of error – you must also show that you objected (evidence admitted) or offered proof (evidence excluded) – this preserves error for the record (you only preserve rights for the objection you raised). 39