Evidence 1 RELEVANCE Always start out asking how the evidence is relevant. LOGICAL RELEVANCE: Evidence that has any tendency to make a material fact more probable or less probable that it would be without the evidence (401): Tendency to prove or disprove a material fact • Evidence may not be logically relevant if evidence involves some other TIME, EVENT, PERSON, than one involved directly in litigation. Exception= similar occurrences Similar Occurrences Where evidence is admissible even though it does not directly involve some other time, some other event, or some other person not directly involved in the litigation 1. Causation: to prove cause and effect 2. Prior Accidents or Claims: π’s prior accidents or claims not admissible (by ∆) a. Exceptions i. To show common plan & scheme of fraud ii. Relevant on the issue of damages b. Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show the instrumentality is dangerous or defective. 3. Intent or State of Mind in Issue: to infer intent from prior conduct. 4. Rebuttal Evidence: to rebut defense of impossibility (opponent “opened the door” saying it is impossible for this to happen). 5. Comparable Sales to Establish Value: sale price of other chattels or parcels of real property admissible if the other chattel or parcel is: a. Of same general description b. Valued at same time period c. Same general geographic area 6. Habit Evidence***: habit of person to act in a certain way is relevant to show that person acted in the same way on the occasion in question. a. i.e, person acted in conformity with their habit b. Overlapping Rules i. Disposition Evidence-not admissible. (showing that a person is careful or careless is not admissible to show there were or weren’t on this occasion) ii. Prior Act Evidence-not admissible (evidence to show person acted in a way on a prior occasion is not admissible) iii. Habit evidence-admissible c. What is Habit Evidence? i. Specific, detailed conduct** ii. Recurrence-acts in such a way often enough to show it is habitual. d. How many times is enough? 3 or more e. Language of Habit= (always, instinctively, automatically) 7. Business Routine: routine practice of an organization is admissible just like habit 8. Industrial or Trade Custom: admissible as non-conclusive evidence of standard of care. Evidence 2 LEGAL RELEVANCE: (403) Relevant Evidence is excluded if its PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF • Unfair Prejudice • Confusion of Issues • Misleading Jury • Undue Delay • Waste of Time • Cumulative Evidence (unfair surprise is not a consideration) Liability Insurance • General Rule: Not admissible to show person acted negligently or wrongfully or to show ability to pay. • Exceptions: liability insurance is admissible when it is relevant to: • Show ownership or control (when it is disputed) • Impeach credibility of witness by showing interest, bias, or motive Subsequent Remedial Measures • General Rule: not admissible to show negligence, culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction. • Exceptions: subsequent remedial measure is admissible when it is relevant to: o Show ownership or control (when it is disputed) o Impeachment-feasibility of precautionary measures If ∆ takes the position that “there is no safety measure I could do”, π can show subsequent remedial measures to contradict Settlements • General Rule: not admissible to prove fault, liability or amount of damage. o Rationale-want to encourage settlements • This is a BROAD rule that covers: o Actual compromises o Offers to compromise o Offers to plead guilty in a criminal case o Withdrawn pleas of guilty o Pleas of nolo contendere • **Admissions of fact, liability, or damage made in course of offer to compromise a claim disputed as to liability or as to amount are NOT admissible. o For the rule of exclusion to operate: There must be a claim The claim must be disputed as to either liability or amount An offer to pay medical expenses is not admissible even though it is not a settlement offer. But if an admission of fact accompanies a naked offer to pay hospital or medical bills, the admission may be admitted. (∆ says “it was all my fault. Let me pay your hospital bill.” Admissible). Evidence 3 CHARACTER EVIDENCE 4 PRELIMINARY QUESTIONS 1. What is the purpose of the Offer of Character Evidence? • Character directly in issue. (Person’s character is a material element in the case). • Character as circumstantial evidence of person’s conduct at time of litigated event. (Character evidence to prove conduct in conformity with character on occasion in issue.) • Character to impeach the credibility of a witness. (i.e. bad character for truthfulness to impeach the credibility of a witness who testifies at trial.) 2. What is the method of proving character evidence? • Specific Acts • Opinion • Reputation 3. What type of case? • Criminal • Civil 4. What trait of character is involved? • Must be the specific trait which is substantively in issue in the case. • Must be good or bad for some specific trait. i.e. violence, truthfulness Character in Civil Cases • Character evidence is NOT admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event. • Character evidence IS admissible in a civil case when the character of a person (party) is itself a material issue in the case. (i.e. Defamation) o If character is directly in issue and therefore admissible, it may be proved by ANY one of the specific techniques (specific acts, opinion, reputation). Character in Criminal Cases***** • Rule 1: Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is NOT admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt from disposition. • Rule 2: MERCY RULE: The accused is permitted to offer evidence of GOOD character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Can only use reputation and opinion. (Not specific acts) o If the ∆ uses character evidence to show good character, then the Prosecution may respond by showing BAD character of the accused, and may call witnesses to testify to bad opinions or bad reputation (not specific acts) in regard to the character of the ∆.** o If ∆s witness testifies to ∆s good character (reputation and opinion only), the prosecution, on cross-examination of the ∆s good character witness, can inquire about any specific acts which would tarnish the accused’s reputation or which would affect the opinion of the witness.*** The prosecution can only ask the witness about specific acts, can’t call a new witness to testify as to the specific acts. The prosecution could also attack the witness’s credibility by showing the witness’ own prior conviction for perjury or bad reputation for truthfulness. • Rule 3: SELF-DEFENSE RULE: The accused may take the initiative in homicide or assault cases, as part of a self-defense pleas, to show the character of the victim as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor. Evidence 4 Again, the permissible method of showing character would be by reputation or opinion only. The ∆ cannot show evidence of the victim’s specific acts.*** o After the accused offers evidence of bad character of the victim, the prosecution can respond by showing good reputation or opinion concerning the victim (not specific acts) OR o The prosecution can show bad reputation or bad opinion concerning the ∆. (not specific acts). • Rule 4: SEXUAL MISCONDUCT CASES o In a case alleging sexual misconduct, ∆ CANNOT show evidence of victim’s reputation or opinion. o ∆ CAN show evidence of specific instances of sexual behavior if To prove 3rd party was source of semen, injury or other physical evidence To show prior acts of consensual intercourse between victim and ∆ If exclusion would violate constitutional rights of ∆ o If CIVIL cases, evidence of sexual disposition is admissible if probative value substantially outweighs prejudicial effect (opposite of relevance rule). o ∆ must give notice and an in camera hearing must be held. • Rule 5: ∆s OTHER CRIMES & MISCONDUCT FOR NON-CHARACTER PURPOSE o Other crimes or prior acts of misconduct by the ∆ are not admissible during the prosecution’s case if the only purpose is to prove criminal disposition, i.e. offered to show that because of ∆s bad character he likely committed the crime currently charged. o BUT, prior crimes or prior acts of misconduct may be offered by the prosecution when it is relevant to prove a material fact other than character or disposition. (i.e. to prove some relevant issues separate and apart from bad character). o MIMIC-Therefore, prior accused misconduct is admissible if relevant to show MOTIVE OPPORUNTITY INTENT PREPARATION PLAN OR SCHEME KNOWLEDGE IDENTITY & MODUS OPERANDI • Modus Operandi (i.e. trademark, signature crime). Must be distinct*** ABSENCE OF MISTAKE OR ACCIDENT • Absence of mistake = type of intent PRIOR ACTS OF SEXUAL ASSAULT & CHILD MOLESTATION ONLYTT SHOW PROPENSITY • In civil or criminal cases charged ∆ with sexual assault or child molestation, the ∆s prior acts of sexual assault or child molestation may be shown by prosecution or π. o ***403 still applies. Judge has the discretion if the evidence’s relevance is substantially outweighed by its prejudicial effect, the evidence is not admissible. Only time you can show prior specific acts • Character is in issue (for damages or material element of the case) • On cross-examination of a ∆s witness who testifies as to ∆s good reputation or opinion. • In sexual misconduct cases, and only under limited circumstances. • Non-character purposes o MIMIC (motive, intent, mistake, identity, Common plant or scheme) and Evidence 5 WRITINGS AUTHENTICATION A writing is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be, i.e. that it is genuine. • Writings are not self-authenticating. • A testimonial foundation is required. Methods of Authentication 1. Direct Evidence in the form of: • Admission “I wrote this” • Eyewitness Testimony “I saw him write this” • Handwriting Proof Lay Witness: “I saw his signature.” “I recognize it” • Impermissible technique by lay witness-lay witness can’t act like an expert & compare nor can lay witness become familiar with signature for sole purpose of litigation. Expert Witness: compare disputed signature and genuine specimen signature Jury Comparison: jury can look at genuine specimen and one on document and judge for themselves. 2. Circumstantial Evidence in the form of: • Ancient Document Rule: (1) 20 or more years, (2) regular on its face, (3) found in a place of natural custody. authenticated. • Solicited Reply Doctrine: proof that disputed document came in response to prior communication 3. Proof • Sufficient Evidence: to lay a foundation, all the proponent needs to show is sufficient evidence so a jury could find that the document is what it is. 4. Self-Authenticating Documents • General Rule: documents are not self-authenticating. But certain writings without a foundation or testimonial sponsorship are allowed: o Certified copies of public or business records (i.e. certified copy of mortgage) o Official publications (i.e a pamphlet of the State Motor Vehicle Dept. which reflects on its face that it is from the Dept.) o Newspapers and periodicals (i.e. a copy of the National Inquirer offered by π in a defamation action to prove publication of the defamatory article.) o Trade Inscriptions or Labels (i.e. π offers label on can of peas to show that deleterious substances ingested by ∆ came from “Green Giant Company”) o Acknowledged Documents o Signatures on Certain Commercial Documents as provided by the UCC 5. Authentication of Photographs • To authenticate a photograph, all you need is for a witness to state that it is a “fair and accurate description.” Evidence 6 BEST EVIDENCE RULE Requires that a party seeking to prove the content of a writing (includes films, photos, X-rays, and recordings) must either: (1) produce the original document, or (2) account for the absence of the original. If the explanation for absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the content of the original. Best Evidence Rule Applies to: 1. Legally Operative Documents • Documents that by their existence create or destroy a legal relationship that is in dispute. (i.e. deed, divorce decree, will, written contract). 2. Witness’ sole knowledge comes from a document • Witness wants to recite orally what he read. Best Evidence Rule DOES NOT Apply to: 1. Facts Independent of the writing: i.e. witness has personal knowledge of a fact that just happens to be described in a writing. No need to produce the writing or explain its absence. • Can prove birth without birth certificate • Can prove payment without a receipt********* 2. Collateral Documents: The BER does not apply to writings of minor importance • I.e π testifies that she is divorced in a personal injury damage claim. Her treating physician testifies he is licensed to practice medicine preliminary to give his opinion. No need to produce divorce decree or license. Modifications to Best Evidence Rule 1. Public Records-certified copies admissible in place of originals 2. Voluminous Documents-if originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as (a) originals would be admissible if offered and (b) originals are made accessible to opposing party 3. **Duplicates: in place of originals. A “duplicate” is a copy produced by any technique which avoids casual errors and “accurately reproduces the original.” Carbons, photographic copies, Xeroxes, faxes are all duplicates. • A duplicate is admissible to the same extent as the original (i.e. no need to explain absence of the original) UNLESS: • A genuine question is raised about authenticity of the original OR • It would be unfair to admit the duplicate in lieu of the original Evidence 7 WITNESS AND TESTIMONIAL EVIDENCE Competency Required • Requirements: Personal Knowledge & Oath o Perception (witness must have observed) o Memory (witness must remember) o Communication (witness must be able to communicate) o Sincerity (Oath or Affirmation-witness must demonstrate knowledge of the obligation to tell the truth) Common Law Disqualifications Abandoned • Lack of religious belief • Infancy • Mental incompetenancy • Prior convictions • Interest-all gone except DEAD MAN ACTS Dead Man Acts • Typical Statute: An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless there is a waiver. • Elements (usually a wrong answer on the MBE) o Interested Witness o Testifying for his interest o Must be against decedent or representative of decedent o Subject matter= transaction or communication with decedent which decedent could testify to if alive. o Civil only*** o Waiver-if decedent’s testimony gets before the jury, Dead Man Act is waived. • State Dead Man Statutes can apply in Federal Court if state who substantive law applies has such a statute. Objectionable Questions • NARRATIVE (Q: “tell us everything relevant that happened on that day) o Lawyer must ask questions • LEADING (Q: “isn’t it true that the sound you heard was like a pistol shot or was it otherwise?”) o Question which suggests answer to a witness o Leading Questions permitted in certain situations Cross-examination Direct-as to preliminary matters Have difficulty obtaining an answer from witness Hostile witness (witness who sides with adverse party) Evidence 8 Witness Use of Writings to Aid of Testimony • Basic Rule: Witnesses usually cannot read testimony from previously prepared document but may use a writing in aid of oral testimony in two situations when the witness can’t remember: (1) refreshing recollection and (2) recorded recollection. • REFRESHING RECOLLECTION o When witness memory fails, anything can be used to jog the memory of the witness o You DO NOT have to authenticate, apply the Best Evidence Rule or have it excluded because of hearsay. Only foundation is that witness must say, “I can’t remember”. o ***YOU CAN USE ANYTHING TO REFRESH Someone else’s statement A candy bar. Attorney’s own notes (though see below-that could backfire) (anything you use, opposing counsel is entitled to see it & use it in crossexamiinatio & opposing counsel can put it into evidence.) • RECORDED RECOLLECTION o If witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony. o Foundation for recorded recollection requires a showing that: At one time, witness had personal knowledge Writing was made by the witness or under supervision of witness or adopted by the witness Writing is timely made. It was fresh. Writing is reliable** Necessity. Witness must be unable to remember all or part of the details. o Writing is admitted by being read into evidence. o Recorded Recollection is an EXCEPTION TO HEARSAY. Opinion Testimony • LAY OPINION o Admissible If: Rationally based on the perception of the witness • “I swathe automobile and it was going about 25mph”--admissible Helpful to the trier of fact • “In my opinion the driver was grossly negligent”—not admissible even if rationally based upon perception. • EXPERT OPINION o 4 basic requirements for expert testimony*** Subject matter must be appropriate • Methodology must be reliable • Opinion must be relevant Witness must be qualified as an expert Expert must possess reasonable certainty or probability regarding the opinion. Expert opinion must be supported by a proper factual basis. o Appropriate Subject Matter Means the opinion “assist” the trier of fact. Two sub-requirements • methodology must be reliable and Evidence 9 • the opinion must be relevant (“fit” the facts of the case). Reliability and Relevance are conditions to admissibility. That means that the proponent must convince the trial judge by a preponderance of the evidence that these conditions have been met. o Qualifications-need not be formal or academic Witness may be qualified based solely on experience o Expert Must possess reasonable certainty or probability regarding the opinion More than mere guesswork o Opinion must be supported by a proper factual basis Facts supporting the opinion must be either • Proper facts within personal knowledge of the expert • Facts supplied in court-through the evidence. (expert should be able to come in without any knowledge of the case but they are supplied to him in court). Evidence supplied through the hypothetical question. • Facts not in evidence or personal knowledge as long as the facts are the type that an expert in the field would reasonably rely on in their work outside of the field. o Doctor hired to testify for plaintiff in a personal injury action bases his opinion in part on a radiologist’s report of what plaintiff’s X-rays reveal. The witness doctor had never seen the Xraays Neither the X-Rays not the radiologist’s report are in evidence. Doctor can still give his opinion. o Learned Treatise Can be offered to show that authorities are not all in agreement. Can use to impeach, discredit, etc. A learned treatise CAN be read to the jury if it is established as authoritative. • To Establish a treatise as authoritative: o Opponent’s expert actually relied on it o Eliciting an admission from expert on cross-examination o Call your own expert witness in rebuttal o Judicial Notice: it is so well known. Simply ask judge. Basic Rule: A learned text, treatise or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by (1) reliance by your expert on direct examination, (2) admission on crossexamiinatio of your opposing expert, (3) testimony of any expert, or (4) judicial notice. Limitations • Expert must testify (at trial or deposition) unless judge takes judicial notice. • Treatise is admitted by being read to the jury. Text itself is not received as evidence.** Credibility & Impeachment******* • Cross-Examination o Party has absolute right to cross-examine a witness who testifies live. (Witness refuses to answer any cross-examination questions after testifying on direct. Direct must be stricken.) o Cross-Examination should not exceed the scope of the direct. Evidence 10 i.e. one may cross-examine on any issues that were raised impliedly or expressly on direct examination. Scope-limited to the direct o Collateral Matters Doctrine Impeachment by contradiction of the witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness to a collateral matter. EXTRINSIC EVIDENCE= documents, rebuttal witnesses COLLATER MATTER= relevant only because of the contradiction. No other relevance to the case. • Credibility and Impeachment Rules o Focus is only one issue-the credibility of the witness. • Accrediting Your Own Witness o No bolstering own witness unless there has been an appropriate impeachment** Bad before Good. o Prior consistent statement would be admissible if the statement is one of identification. A prior out-of-court statement of identification that was made by a witness who testifies at trial is excluded from the definition of hearsay and, therefore, may be admitted. Typically, you can’t bolster with a prior statement. However, if it is an identification, you can. (Excluded from hearsay). • Impeaching your Own Witness o You can freely impeach your own witness. No conditions. • Impeaching Your Adversary’s Witness o 5 Basic Impeachment Techniques Prior Inconsistent Statements Show Interest, Bias, or Motive to lie or exaggerate Prior Convictions Specific Acts of Deceit or Lying Bad Reputation or Opinion for Truth & Veracity o Questions relevant to each impeachment technique are two: Can you use Extrinsic Evidence? If you can use extrinsic evidence, do you have to lay a foundation? o PRIOR INCONSISTENT STATEMENT******* The credibility of a witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness’ present in court testimony. • Generally admissible only to impeach – not for its truth – not affirmative or substantive evidence. o It would violate hearsay. Not offered for truth, only for the contradiction. • *BUT, if the prior inconsistent statement was given under oath AND at trial, hearing or other proceeding or in a deposition, such a statement is admissible for its truth. Extrinsic evidence IS admissible to prove prior inconsistent statement. • If witness denies making the inconsistent statement, you can impeach with extrinsic evidence. Evidence 11 • The only time you may get into trouble is if you save the extrinsic evidence for after the witness is off the stand. The judge may not allow it at that point for lack of relevance. Foundation: What foundation is necessary before using extrinsic evidence? • Witness should be afforded an opportunity to explain or deny the making of the inconsistent statement. • Federal rules say the witness have an opportunity to explain or deny making the statement but doesn’t say when. As a result, NO FOUNDATION IS REQUIRED IN FEDERAL RULES. Prior Inconsistent Statement of a party qualifies as an admission • Therefore it is admissible for its truth. O BIAS, INTEREST, MOTIVE Bias, interest, & motive may be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness. Include: settlements, pleas, etc. O PRIOR CONVICTIONS ARE USABLE TO IMPEACH IF THE CONVICTION IS FOR THE PROPER KIND OF CRIME.***** Convictions usable to impeach: • Any crime (felony or misdemeanor) if it involves dishonesty (i.e. deceit) or false statement. i.e. fraud, larceny by trick, embezzlement, perjury. Not robbery, or ordinary larceny because no deceit or false statement. o No discretion to exclude it. • A felony (i.e. crime punishable by more than 1 year) NOT involving dishonesty or false statement is admissible to impeach in the discretion of the Court. i.e. robbery, ordinary larceny, felony assault. o Misdemeanors are NOT admissible to impeach if they do not involve deceit or false statement. • Convictions can’t be too remote-general guideline is 10 YEARS. If more than 10 years have elapsed from later of date of conviction or date of release from confinement, the conviction is generally inadmissible-even if it is a crime of dishonesty or false statement. o Jail and Prison time don’t count. Extrinsic Evidence of Conviction is admissible. (i.e. certificate of conviction) No foundation necessary-you don’t have to ask the witness if he has any prior convictions. O SPECIFIC ACTS OF DECEIT OR LYING MAY BE ASKED ABOUT IN CROSSEXAMIINATIO (I.E NON-CONVICTIONS Admissible at the discretion of the court. Good Faith Required: must have a reasonable basis for believing the act was done by the witness (can’t go through the penal code and ask if he did each and every thing) Act inquired must involve deceit or lying. NO EXTRINSIC EVIDENCE PERMITED. Limited to cross-examination. • This is the only impeachment technique where that is not allowed. o BAD REPUTATION OR OPINION FOR TRUTH OR VERACITY Character evidence rules. • If ∆ opens the door with good reputation evidence or attacks victim’s character, prosecution can attack ∆ with bad reputation or opinion evidence. Evidence 12 • Rehabilitation After Impeachment o Good Reputation and opinion for truth may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation/opinion for truth). o Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive. Not usually to rebut charge or prior inconsistent statement. To rebut charge of recent fabrication or improper influence or motvie Must be pre-motive statement Admissible for its truth Evidence 13 PRIVILEGES ATTORNEY-CLIENT PRIVILEGE • Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. (privilege survives death of client.) • Elements o The right parties o Confidential Communication Not physical evidence or pre-existing documents. o Professional Legal Relationship Must be an intent on the part of the client to establish a professional legal relationship Predominantly legal advice must be sought • EXCEPTIONS: situations where any of the privilege does not apply o Future Crime or Fraud Future and continuing crime or fraud o At Issue If the client puts the confidential communication at issue, then there is no privilege “I just followed the advice of my attorney” o Disputes between the parties to the professional relationship I.e actions for fee or malpractice. o Joint Client Exception When 2 or more parties communicate with attorney about a matter of common interest. If the fall out, there is no privilege between them. But if they are sued by a 3rd party, they can claim it. PHYSICIAN/PSYCHIATRIST PATIENT PRIVILEGE • Patient has a privilege against the disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. • Elements o Patient must be seeking treatment o Information acquired must be confidential and necessary to facilitate professional treatment • Waiver: waiver of the physician patient privilege is common especially because of the Patient Litigant Exception exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue. • For doctor-patient only! IN FEDERAL PRIVILEGES, WE DON’T KNOW IF THERE IS A DOCTOR-PATIENT PRIVILEGE. (therefore, it is wrong answer on the MBE) HUSBAND-WIFE SPOUSAL PRIVILEGES • Dual Privileges: there are two spousal privileges with different rationales: o Spousal Immunity Privilege One spouse can’t be forced to give adverse testimony against another in a CRIMINAL case. (even if spouse is a witness to the crime) Elements • Valid Marriage at time of trial Evidence 14 • Protects against any and all testimony • Holder of privilege is witness spouse not party spouse. So if one spouse wants to testify against the other in a criminal case, she can.*** • Applies only in criminal case. o Confidential marital Communications Privilege Husband or wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage. Only protects against the confidential communications made during the marriage, applies in any case-civil and criminal. Requirements • Married not necessarily at time of trial but at time of protected communication (this privilege outlasts the marriage). • Protects only confidences. Not all testimony. o Spouse must take the stand, and can refuse to answer only if the specific question asks about a marital confidence. • Holder of privilege is either spouse not just witness spouse. • Rationale: society wants to strengthen marriages, not hurt them. • Neither privilege will apply in an intra-family injury case.**** (For Privileges Use State Law in Federal Court-1 of 3 exceptions) Applicability of State Law in Federal Court** • General Rule: Federal Court will apply its own evidence laws. • 3 situations in which state evidence law will apply in federal court IF state substantive law applies (as in typical diversity jurisdiction case). o In civil actions or proceedings with respect to an element of a claim or defense as to which state law applies the rule of decision (i.e. state substantive law applies.) State law will apply regarding: Presumptions and burdens of proof Rules regarding the competency of witnesses (i.e. Dead Man’s Statute) Privileges****** Federal Privilege law in federal question or in federal criminal cases “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. o Π sues ∆ in Federal court for breach of contract made and to be performed in NY. Federal subject matter jurisdiction is founded on diversity. Π raises a presumption or a rule of competency or one of the privileges. As to the presumption or rule of competency or privilege, State Law Applies. If the action in federal court is a suit under the federal social security act, Federal law applies because it is federal substantive law. If a privilege is involved, Federal Common law would be the correct law to use. Evidence 15 HEARSAY Definition: HEARSAY IS AN OUT-OF-COURT STATEMENT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. Analysis • Is it an out-of-court statement? • What precisely is the out-of-court statement? • Is it being offered for the purpose of establishing its truth? Declarant= makes or writes the out-of court statement Witness= reports the statement in court. Writing= produced in court. Rationale for General Rule Excluding Hearsay • It denies the opponent the opportunity to cross-examine the person whose perception, memory and sincerity are in issue. NON-HEARSAY SITUATIONS (remember: these are NOT hearsay) 1. Verbal Acts or Legally Operative Facts*** (this one is very difficult) 2. Out of Court Statement Offered not for its truth But to show its effect on the person who heard or read the statement. 3. Out of Court Statement Offered not for its truth but as circumstantial evidence of declarant’s relevant state of mind. Verbal Acts or Legally Operative Facts • where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written. (words of offer, acceptance, defamation, conspiracy, cancellation, misrepresentation, waiver permission.) • The real issue is if he said those words, not if the words are true • Examples o Witness seeks to testify that Decla said “I accept your offer.” Evidence is offered to prove an oral contract. Not hearsay. o Witness seeks to testify that Decla said to insurance agent “cancel my insurance” in order to prove policy cancellation. Not hearsay. o Witness seeks to testify that Decla said “Take my car, go with it to Miami” in order to prove Decla gave permission to use his car. Not hearsay. Out of Court Statement Offered not for its truth But to show its EFFECT ON THE PERSON who heard or read the statement. • i.e. to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the out-of-court statement. Out of Court Statement Offered not for its truth but as circumstantial evidence of declarant’s relevant STATE OF MIND. • Example: Spano is charged with murder. Defense is insanity. Defense witness testifies that on the day before the killing, he heard Spano say “I am the Pope”. Not hearsay Evidence 16 Prior Statements of witness IS hearsay. 1. A witness’s own private statement if it is being offered for its truth is hearsay and is therefore excluded unless it fits some exception. 2. Exceptions: where prior statements of a witness are NOT hearsay: o Prior Inconsistent Statements: given under oath at a trial, hearing, other proceeding or deposition. o Prior Consistent Statements: to rebut charge of recent fabrication or improper influence or motive. o Prior statement of identification made by a witness****: a prior identification is not hearsay. HEARSAY EXCEPTIONS 1. Admission of Party-admissible non-hearsay in Federal Rules 2. Former Testimony-exception to hearsay. Unavailability required. 3. Statement Against Interest-exception to hearsay. Unavailability required. 4. Dying Declaration Unavailability required. 5. Spontaneous Declaration o State of mind o Statement of existing intent to prove intended act o Excited utterance o Present Sense Impression o Declaration of present physical condition o Declaration of past physical condition 6. Business Records Unavailability= witness is dead, can’t remember, etc. • Declarant is unavailable if court exempts declarant from testifying due to: o privilege o declarant refuses to testify because of privilege or other reason o declarant’s memory fails o declarant is dead or sick o proponent of statement cannot procure declarant’s attendance by process or other reasonable means. Admission of a Party • Definition: Declaration of a party offered against the party. • Rationale: Estoppel. • *can be in the form of a legal conclusion • PARTY ADMISSION IS CONSIDERED NON-HEARSAY UNDER FEDERAL RULES OF EVIDENCE. • Vicarious Admission: a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment made during existence of the relationship. o Must be Within the scope of employment Made during employment relationship Former Testimony • Unavailability of the witness is required. Evidence 17 • Definition: Testimony given in earlier proceeding by person now unavailable is admissible if (1) party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motive it has now, or (2) in civil case, party against whom testimony is offered was in privity (a predecessor in interest) with a party to earlier proceeding who had opportunity and similar motive to examine. • Requirements o Meaningful opportunity for cross *same issue and motive Some identity of the party: party against who offered must have been a party in first proceeding or, in civil case, at least in privity with party in first proceeding. The grand jury testimony of an unavailable declarant that is offered against the accused in a criminal case would not qualify because the accused does not have an opportunity to cross-examine grand jury witness. o Unavailability of the declarant Statement Against Interest • Unavailability required. • Definition: Declaration of a person, now unavailable as a witness, against that persons’ pecuniary, proprietary, or penal interest, or statement would expose declarant to civil liability, or which would tend to defeat a civil claim by declarant, AT THE TIME STATEMENT WAS MADE. • Limitation: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless “corroborating circumstances clearly indicate the trustworthiness of the statement.” • Requirements o Must be against interest at time statement was made o May be made by any person, not necessarily by a party. o Requires personal knowledge. Declarant must know what he is talking about o Statement against interest requires Unavailability. Dying Declaration • Unavailability required. • Definition: In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death. • Requirements o **State of Mind: made under a sense of impending death. (Declarant really believed he was going to die). o Declarant need not die but must be unavailable at time of trial. o Kind of case in which admissible: homicide or civil case. o Content Limitation: Must concern cause or circumstances of impending death. SPONTANEOUS STATEMENTS (6)******* • Declaration of Existing State of Mind o Spano is on trial for murder. Defense Insanity. Defense Witness testifies that on the eve of the killing, witness heard Spano say “I believe I am the Pope.” • Declaration of existing intent to do something in the future o Decla announces “On Monday of next week I am going to meet with Spano” offered to prove that Decla did meet Spano on Monday. Evidence 18 • Excited Utterance** o Definition: Statement relating to startling event or condition is admissible when made while made while declarant was still under stress of excitement caused by event or condition. o Requirements • Startling event • Made under stress of excitement (time lapse ok if consider what happens in the lapse) • Concerns the fact of the startling event o Considerations • Nature of event • Time lapse and what is going on during time lapse • Language of excitement • Present Sense Impression o Definition: A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. o Distinguish from Excited Utterance • do not need a startling event or excitement. • Must have almost precise contemporaneousness-no appreciable time lapse. • Declaration of Present Pain, Suffering, or Physical Condition o Definition: A declaration of then existing physical (or mental) condition is admissible to show the condition. (“It hurts”) • Declaration of Past Physical Condition o Definition: Statement made for purposes diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment. o Requirements • Made to medical personnel • Pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony.) Business Records • Definition: Records made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness. • Rationale for Reliability: Employees are under a business duty to be accurate in observing, reporting, and recording business facts. • Function of the Exception: Allows the record to substitute for the in-court testimony of the employees. • Does the exception apply? o Usually turns on whether entry is germane to the business. • Multiple Hearsay Problem? o Even if the entry is germane, if the record contains within it a statement made by someone outside the business, then it must pass fall under some other exception to hearsay. Discretion Exception to Hearsay-is the statement (1) trustworthy, (2) necessary, (3) adequate notice given. CATCHALL. Judge can admit it if it fits 3 elements Evidence 19 6th Amendment Right of Confrontation • The Rule: Even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accused’s 6th Amendment right of confrontation may render the statement inadmissible when it is offered against the accused in a criminal case. The Supreme Court in Crawford v. Washington recently held that out-of-court statements, even if they fit a hearsay exception, will not be admitted if o the-out-of-court statement is offered against the accused in a criminal case AND o the declarant is UNAVAILABLE at the trial o The out-of court statement was testimonial • a hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime (This would include witness statements made to police or other law enforcement officials in response to police questioning; any testimony given at a formal proceeding-preliminary hearing, grand jury or motion to suppress; guilty plea allocutions of con-conspirators to prove that a conspiracy existed; forensic lab reports revealing drugs, fingerprints, firearm evidence, blood, DNA, etc.) UNLESS o The accused had an opportunity to cross-examine the declarant’s “testimonial” statement when it was made OR UNLESS o The prosecution demonstrates that the ∆ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial. RECURRING TEST ISSUES AND HYPOS Preliminary Questions of Fact Upon Which Admissibility Depends • Rule: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. But in making its determination it is not bound by the rules of evidence. o You offer the declarant’s transcript into evidence as former testimony. Unavailability of the declarant is a fact question upon which admissibility depends. There is a dispute between you and your opponent over this fact question. You hand the judge a signed unauthenticated letter purporting to be from the declarant which states “I am unavailable.” Judge decides the question of unavailability. Judge may take account of the hearsay letter in making her decision. o In a homicide case, officer attempts to testify to Victim’s dying declaration. At issue is the Victim declarant’s state of mind. Was he speaking under a sense of impending death? The prosecutor offers a doctor’s hearsay affidavit which states that, given Victim’s medical condition, he must have known he was dying. The affidavit, although it is hearsay, may be used by the Judge who is the one who determine the preliminary fact question of whether Victor was speaking under a sense of impending death. Impeaching the hearsay declarant • Rule. When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness. o Victor is stabbed, goes to hospital, and tells police officer “I am dying, Spano did it.” Two days later, Victor is feeling much better and he tells Nurse “Gurtz stabbed me. Now it looks like I will survive.” Alas, Victor dies a week later. Spano is prosecuted for the murder of Victor. Officer is allowed to testify to Victor’s dying declaration which Evidence 20 implicates Spano. In rebuttal, the defense calls Nurse. Victor’s statement to Nurse is not a dying declaration because Victor thought he would live when he made the statement. But it is admissible as a prior inconsistent statement to impeach Victor’s credibility. Admissibility of the inconsistent statement is not subject to the usual foundation requirement. Mixed Hearsay and Writings o Victor is found shot dead in his business office with a Dictaphone in his hand. He was apparently dictating business correspondence when an intruder entered and shot him. Police officer at the scene rewinds and plays back the Dictaphone tape. Officer hears Victor dictating business letters but then hears Victor say “Spano, what are you doing here?” There is then the sound of a shot and the tape is silent. At Spano’s trial, Officer is called by the prosecution. Officer seeks to testify to what he heard on the Dictaphone tape. The officer’s testimony is hearsay but qualifies under the present sense impression exception to the rule against hearsay. So hearsay is not the problem. But the best evidence rule applies. The officer’s testimony is not admissible unless the absence of the recording is explained.