EVIDENCE Why rules of evidence? 1. Mistrust of juries. 2. Promote substantive issues that we want to protect while litigating 3. We want to protect things that occur outside this place. Privileges 4. To maximize trustworthiness of evidence 5. To promote trial efficiency REAL v. DEMONSTRATIVE 1. Real Evidence – actually played a part in the controversy (knife, gun, contract, etc.) 2. Demonstrative Evidence – demonstrates or explains the evidence but did not itself play a part in the controversy (diagrams of the murder scene, charts of DNA matches, etc.) TRIAL STRATEGIES 1. Direct can not be leading, unless the witness is hostile. 2. Cross can be leading questions. 3. Cross is to be limited to the subject matter of the direct. 4. Make offer of proof for the record ERROR – 103(a) – Substantial right of a party must be affected. Did it the error make a difference. Burden of proof on party asking for reversal. 1. Types of Error – Do you have right to appeal? a. Ordinary Trial Error – You have to object to preserve your right to appeal b. Plain Error (We all should have known better) – You don’t need to object to preserve right to appeal c. Constitutional Error (Error that denies D constitutional rights) – No need to object to preserve right i. Burden shifts to prosecution to show beyond a reasonable doubt that the error was harmless 2. Harmless Error a. If Cumulative b. Judge gave limiting instructions c. Overwhelming evidence that leads us to the same result BLOWING THE APPEAL 1. If you fail to file a notice of appeal in the proper amount of time. 2. If you invite error. 3. If you are the one who solicited the harmful information. RULES 901 – Authentication (laying the foundation) -- You must offer evidence sufficient that would allow a reasonable jury to be able to conclude that this item is what you say it is. 1. 901(b) gives examples of how to authenticate. a. Testimony of a witness with knowledge (most common)
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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 where the number was assigned by the phone company to a particular person or business and if (A) in the case of a person, circumstances show the person answering to be the one called, or (B) in the case of a business, the conversation related to business reasonably transacted over the telephone g. Public records or reports – if found in place where these things are supposed to be kept h. Ancient documents or data compilation a) In condition as to create no suspicion of authenticity b) Was in a place it likely would be c) 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, x-rays) j. Methods provided by statute or rule – “catch-all” 2. Common law said could be no break in chain of custody, no longer, now just enough for a reasonable jury to conclude that it is what you say it is. But you almost always need the first link. 3. Letterhead is less so basis for foundation that it was in the past. 4. Tape Recordings a. Minority (2nd and 8th cir.) – McKeever and McMillan test i. That the recording device was capable of taping the conversation now offered in evidence. ii. That the operator of the device was competent to operate the device. iii. That the recording is authentic and correct iv. That material changes, additions or deletions have not been made in the recording v. That the recording has been preserved in a manner that is shown to the court vi. That the speakers are identified (not in the actual recording) vii. That the conversation elicited was made voluntarily and in good faith, without any kind of inducement b. Majority – Biggins Rule (factors not elements) i. Competent operator ii. The fidelity of the recording equipment iii. The absence of material deletions, additions, or alterations in the relevant portions of the recording iv. The identification of the relevant speakers (not in the actual recording) 902 – Self Authenticating
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1. Domestic public documents signed and under seal 2. Domestic public documents signed but not under seal as long as accompanied by a signed and sealed certificate certifying that the public document and signature are genuine 3. Any foreign public documents 4. Certified copies of public records that are accompanied by a certificate that complies with 1, 2, or 3 5. Official books, pamphlets, or other publications purporting to be issued by public authority 6. Newspapers and periodicals 7. Trade inscriptions and the like 8. Notarized documents 9. Commercial paper – UCC documents 10. Any document that has been declared genuine by congress 11. Business records that are: i. made at or near the time of the occurrence of the matters set forth ii. kept in the course of regularly conducted business iii. made by the regularly conducted activity 12. Foreign business records. BEST EVIDENCE Rule 1002 -- When you are trying to prove the contents (what is inside) of a writing, recording or photograph, you need to provide the original unless. . . . Rule 1003 – A duplicate is admissible as long as the authenticity of the original is not questioned and it would not be unfair to admit the duplicate. 1004 – The original is not required when: 1. The original is lost or destroyed unless the offering party lost or destroyed them in bad faith 2. The original is not attainable 3. The original is in possession of the opposing party 4. The piece of evidence is collateral not closely related to a controlling issue 1005 – A copy of a public record is sufficient is the original is authenticated 1006 – The original is not required when dealing with large voluminous writings, recordings or photographs. But the originals must be made available to opposing counsel. 1007 – Contents of a writing, recording, or photograph, may be proven by testimony, deposition or written admission of the opposing party 1008 – The jury decides issues such as (a) whether the asserted writing ever existed, (b) whether another writing, recording or photo produced at the trial is an original, or (c) whether other evidence of contents correctly reflects the contents
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If the writing is not on a document, instead it is on a shirt, tombstone, license plate, etc. we call it an inscribed chattel. The court has discretion when it is a chattel, if he treats it as a chattel then the best evidence rule does not apply Music Notes fits under best evidence, sometimes paintings and drawings. Songs on a CD as well. When you sign a receipt at a restaurant and there are carbon copies, those are all originals. Photocopies of those are duplicates. Also sometimes people sign multiple contracts because they want all parties to have originals. The original is the document in dispute There can be infinite originals, every print from the negative is an original, every time you hit print from your computer, out comes an original.
RELEVANCE 401 – The evidence is relevant if it makes the point to be proved more probable than if was without the evidence 402 – Irrelevant evidence is not admissible. 403 – 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 needlessly cumulative, or waste of time HEARSAY 1. Definition a. A statement – (1) an oral or written assertion, or (2) nonverbal conduct of a person, I fit is intended by the person as an assertion) b. Other than the one made by the declarant while testifying at the trial or hearing c. Offered in evidence to prove the truth of the matter asserted 2. Elements a. Declarant i. Can only be a person, not animal, machine, etc. b. Statement i. Only an assertion if intended to be one. ii. Silence can be an assertion if intending to communicate. iii. Can be a coded signal, like light signaling that British are coming iv. Burden on the party trying to say it is an assertion. c. Out of Court d. Offered to prove the truth of the matter asserted 3. Why? – Because the best evidence is that which is obtained (1) under oath, (2) subject to cross-examination, (3) where a jury can view the party’s demeanor 4. Risks a. Misperception (declarant) b. Faulty Memory c. Ambiguity or faulty witness narration d. Insincerity
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5. Not-Hearsay – when appropriate or when requested judge gives limiting instructions that evidence is not offered to prove the truth of matter, instead offered for/as: a. Impeachment (or rehab) – You can impeach the witness on the stand or use a witness to impeach another witness who is not on the stand b. Verbal Act (or part of act) – statements themselves have independent legal significance i. Verbal contracts ii. Defamation iii. Words connected with the transfer of money iv. Words soliciting prostitutes v. Obstructing justice vi. Notice of termination of a lease c. Effect on Listener – Trying to show what is in the listener’s mind after he heard the statement d. Circumstantial evidence of state of mind – Trying to prove what is in the mind of the declarant i. “I am Albert Einstein” e. Verbal Object/Marker – an object that has writing on it but is being offered not to prove that the writing is true, but to connect a person to a location, event, or another person i. Two people working together examples f. Circumstantial evidence of memory or belief – To connect a person to a location based upon memory i. Girl held in basement, she sees doll. At police station she is questioned and says she saw doll. At trial police is asked what did she say, “she said she saw doll.” 6. Exclusions from hearsay definition 801(d)(1)(A) – Prior inconsistent statement (under CA Rules of Ev., prior inconsistent statements are always allowed for the truth of the matter asserted, no need for oath and hearing requirement) 1. Declarant testifies at the trial or hearing 2. Declarant subject to X-E concerning statement a. As long as you get in the chair you are subject to cross, even if you say you don’t remember 3. Trial testimony is inconsistent with statement a. Whether a reasonable person could infer, on comparing the whole effect of the two statements, that they had been produced by inconsistent beliefs b. Inconsistency can be found in statements where there are evasive answers, silence, or changes in positions c. CA and Fed says that if you no longer remember because you truly lost memory (brain damage, etc.) then that is not inconsistent. 4. Prior statement given under oath 5. Prior statement was made at a trial, hearing, or other proceeding, or in a deposition a. Test is reliability
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b. Grand jury hearings are included, stationhouse questioning is always not counted. c. Notary can be under oath d. p. 163, note 3 – Have 3rd party, sworn statement, inquisitive, recorded, held in circumstances of some legal formality etc. 801(d)(1)(B) – Prior consistent statements 1. Declarant testifies at the trial or hearing a. Can be a 3rd party on the witness stand, as long as declarant testified at some point prior 2. Declarant subject to X-E concerning statement 3. Trial testimony is consistent with prior statement 4. The prior consistent statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive a. Category 1 – Rehabilitate witness after accusation of improper motive or influence b. Category 2 – Rehabilitate witness after it is shown that they have a bad memory of situation c. Schools of thought i. In category 1 situation the evidence can come in for rehabilitation and TOMA, category 2 situations only for rehabilitation ii. Only category 1 situations are allowed in for both rehabilitation and TOMA, category 2 situations can not be rehabilitated at all iii. In both category 1 and 2 situations, all prior consistent statements are allowed in for rehab and TOMA 5. Statement must be made before the improper motive arose a. Must be met to come in for TOMA 801(d)(1)(C) – Prior statements of I.D. 1. Declarant testifies a. Does not need to remember the prior I.D. 2. Declarant subject to X-E 3. Declarant made I.D. after perceiving the person a. Prior I.D. need not be under oath b. Any of the 5 senses c. More than a description, must be Identification 801(d)(2)(A) – Admissions by party opponent 1. The statement is made by a party a. Not matter if party knew it was in his favor b. Doesn’t matter if the party is drunk, unless completely irrational or incoherent c. Sleep talking does not come in d. Minors i. Majority – Admissions by minors are admissible
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ii. Minority – Only admissible if the child is old enough to testify in court e. Payment of traffic citation is not an admission f. Pleading no contest is not an admission g. Admissions of co-defendants – because of confrontation clause concerns, when both defendants are in the same trial then we have a problem – Bruton 1. Prosecution can redact, unless it leaves obvious gaps 2. Try the D’s separately 3. Empanel two juries 4. Have D testify (still not admissible against other defendant, but can be used against he who made admission and judge gives limiting instruction) 5. Don’t use the evidence 2. Statement offered against the party a. Very Broad 801(d)(2)(B) – Tacit admission or adopted admissions 1. Statement in which party manifests adoption or belief in truth a. Silence can be a statement – would probable human behavior have been to deny the statement b. In dealing with attorneys, it is common for them to send a letter confirming what was discussed. If you don’t respond then you have adopted c. BOTTOM LINE: Must show (1) the party actually heard the statement, (2) it concerns a matte within the knowledge of the defendant, (3) under the totality of the circumstances, probable human behavior would be to respond d. COUNTER 1. Did not hear or understand 2. Lack of reply can be explained (in a hurry) 3. Speaker is likely to be ignored 4. Post Miranda 2. Offered against the party 801(d)(2)(C) – Admissions by a speaking agent 1. Statement by person authorized to speak on party’s behalf (on the matter) a. Party seeking to admit has the burden to prove that speaker had authorization b. Admissions in response for a request for admission is only admissible in the case 2. Offered against the party 801(d)(2)(D) – Admissions by employees and agents 1. Statement by party’s agent or servant (usually employee) a. Gov’t employees – Generally speaking, the higher up the food chain the likely that your statements will be binding against your gov’t employer
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2. Concerning matter w/n the scope of agency or employment 3. Statement made during existence of agency or employment a. While on the payroll. 4. Offered against the party Contents of the statement are not alone sufficient to establish declarant’s authority (agency) 801(d)(2)(E) – Co-conspirator statements 1. Existence of conspiracy a. Conspiracy does not need to be charged to use this exception 2. Declarant part of conspiracy 3. Defendant part of conspiracy 4. Statement was made during pendency of conspiracy a. Once in the custody of law enforcement, the conspiracy is over with respect to the arrested person b. Does not need to be made to a person within the criminal enterprise c. Statement made during the concealment phase is not ordinarily included in the exception, unless the conspiracy itself involves the objective of concealment 5. Must be made in furtherance of the conspiracy (when I make the statement as a declarant am I trying to further the objective of the conspiracy) a. When the declarant made the statement, was he trying to move the conspiracy forward 6. offered against the party Contents of the statement are not alone sufficient to establish conspiracy 7. Exceptions to Hearsay Rule 803(1) – Present Sense Impression (risks minimized: Faulty memory and insincerity) 1. Statement describing or explaining an event or condition a. The rule does not require corroboration that the event or condition actually occurred, but some courts require independent evidence 2. Made while declarant perceiving event or condition, or immediately thereafter (matter of minutes at most) a. Perception can be all 5 senses b. Immediate – no time for conscious reflection to fabricate 803(2) – Excited Utterance (risks minimized: Faulty memory and insincerity) 1. Statement relating to a startling event or condition 2. Made while declarant under stress of excitement caused by event or condition a. Factors for determining if under stress : Age, physical and/or mental condition, the events themselves, demeanor or declarant b. If you are in a coma and then wake up 3 days later, could still be under stress or excitement
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c. Can also be retriggered (assault, then go to police lineup and retrigger the stress) Some Courts say contents of the statement are not alone sufficient to establish the event took place, need independent corroborating evidence 803(3) – State of mind (risks minimized: Faulty memory and misperception) – Different than the state of mind exclusion, because here you are trying to prove the truth of matter asserted. Statements regarding the following get in: 1. Then existing physical condition (pain, bodily health) a. It does not matter whether the declarant speaks close in time to the injury or the onset of the ailment, so long as the words describe how he feels as he talks right now. 2. Then existing emotional/mental condition (intent, plan, motive, design, mental feeling) a. “I am afraid of Neff” – Meets elements and comes in as hearsay exception. However, remember in murder trial courts have determined that this type of statement will be excluded because potential for unfair prejudice substantially outweighs probative value. 3. Subsequent conduct a. First Party Hillmon – “I am going to the parking lot to meet Mark”. This is always allowed in to show my conduct. b. Third Party Hillmon – “I am going to the park with Scott.” If used to show evidence of Mark’s intent or conduct then it is called 3rd party Hillmon. Only allowed in if the declarant is dead or otherwise unavailable and there is independent corroborating evidence of the 3rd party’s actions. 4. Facts concerning a will a. Allowed to look backwards – “Last week I disinherited my son.” 803(4) – Statements for purposes of medical diagnosis or treatment 1. Statement made for purposes of medical diagnosis or treatment (source of statement does not need to be person seeking treatment or does not need to be made to a doctor); and A. Statement describes medical history, or B. Statement describes past or present symptoms, pain, or sensations, or C. Statement describes inception or general character of the cause or external source; and i. Be careful here, must be general I got hit by a car is ok, but I got hit by a car that ran a red light is not ok. 2. Statement reasonably pertinent to diagnosis or treatment i. When we are dealing with kids, if the assailant is a member of the household then the identity is pertinent to the diagnosis ii. What about psych? Touch call, arguably everything said to them is pertinent to diagnosis. Not a lot of cases on
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this issue because people don’t want to open the door and waive the patient/psych privilege. 803(5) – Past recollection recorded (This one requires that the declarant is actually sitting in the witness chair) 1. Memorandum or record 2. Concerning matters about which witness once had knowledge 3. Now knowledge is insufficient to testify fully and accurately 4. Statement made or adopted by witness (not in court, but at the time the record or memorandum was produced) 5. While fresh in witness’ memory a. Longer timeframe than minutes, must be within enough time to be reliable. Courts have gone as far as 3 years. 6. Correctly reflects once-fresh knowledge a. Courts are becoming more lenient about the 6th element, if you basically vouch for its accuracy then it’s ok. If evidence is admitted, the memo or record is not given to the jury, just read to the jury, unless opposing party wants the jury to have it. All elements do not need to be satisfied by one person. Can have a bystander that told the security guard the robber left in a car with license plate ABC123 and the security guard wrote it down. If both bystander and guard are put on the stand it is ok. Courts say you should give the memo to the witness and have them read it to refresh their present memory. This is present recollection refreshed. If they still can not remember, then use 803(5). 803(6) – Business record exception, works even for illegal enterprises, but not personal checkbooks. 1. Record of business in any form 2. Concerning acts, events, conditions, opinions, or diagnoses 3. Made at or near time by, or from info transmitted by, person with knowledge (the person with knowledge transmitting does not need to be in the business, but then we need a separate hearsay exception to get it into the business) 4. Made in ordinary course of business 5. Kept in ordinary course of business 6. Foundation 7. Unless not trustworthy – Court’s Discretion As long as transmission is going through the business, then it is all compressed in to one exception. If the transmission is going in or out of the business, then we need a separate hearsay exception. Business records are self authenticating if they meet the requirements of 902(11) or 902(12). Incident Reports – When offered against the party who wrote them usually let in. Otherwise the trustworthiness is scrutinized. 803(8) – Public Records 1. Record of any kind of public agency setting forth A. Activities of office or agency
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B. Matters observed pursuant to duty, except against crim Ds reports by police or other law enforcement personnel C. Factual findings from investigating pursuant to legal authority, except against crim Ds 2. Unless not trustworthy Analysis of trustworthiness: Timeliness of report, experience of officer, formal hearing, indication of improper motive If there is hearsay in the report we need separate exception to get it in. From officer to paper, this exception is used. Who are other law enforcement personnel? Any officer or employee of a governmental agency which has law enforcement responsibilities. Private Lab? Generally if lab does regular work for govt. then they are considered law enforcement personnel, if only one time deal, then not. Very few courts say that if law enforcement is dong ministerial task (writing down license plate), then ok.
MINOR EXCEPTIONS
8. Exceptions where declarant must be unavailable – 804 804(a) – Unavailability 1. Privilege – The witness himself must invoke the privilege 2. Refusal to testify – The witness himself must be ordered to testify and he still refuses 3. Lack of memory 4. Dead or infirm – How sick do you need to be? They weigh the importance of the person’s testimony against how sick they are and take into account the length of the trial, can this person be brought back next week? Bottom line, minor illnesses generally do not qualify as unavailable 5. Unavoidable absence – You have to look for the witness hard enough to convince the court you conduct a good faith effort. If you can get his deposition now then he is not unavailable now? Unless caused by proponent by wrongdoing – This is determined by the judge by preponderance 804(b)(1) 1. Declarant unavailable 2. Testimony given at a hearing or deposition in same or different case 3. In crim case, offered against the party who had similar motive and opportunity to examine declarant at prior proceeding, in civil case, a predecessor in interest who had an opportunity and similar motive to examine Most courts say predecessor in interest means similar motive and opportunity 804(b)(2) – Dying Declaration
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1. Declarant unavailable 2. Homicide or civil case 3. Declarant makes statement believing death imminent 4. Statement concerns cause or circumstances surrounding death To use this exception in a crim case, the guy must actually die. Imminent means that you think you are going to die now, within minutes Most courts say the declarant needs personal knowledge of the cause or circumstances surrounding his death. 804(b)(3) – Statement against interest 1. Declarant unavailable 2. Statement, at time made, was so far contrary to declarant’s pecuniary, proprietary, or penal interest 3. That reasonable person (in the declarant’s position) wouldn’t make statement unless true. Here the declarant does not have to be a party, otherwise, statement by party opponent. If there are duel interests the court has to determine which interest dominates O’Connor says that the statement means only the sections or phrases or sentences that are self-inculpatory If the statement is used to exculpate then need independent corroborating evidence, if used to inculpate then courts are split 804(b)(4) – Statement of personal or family history 1. Decl unavailable 2. Statement about decl. own personal family history or 3. That of a relative or others intimately associated with the declarant Some courts will say we need corroborating evidence that you were intimately associated with the other people 804(b)(6) 1. Decl unavailable 2. Statement offered against party who wrongfully rendered decl. unavailable. Judge must find by a preponderance that he rendered the decl. unavailable. Judge can hear any evidence he wants 807 – Residual Exception 1. Statement has circumstantial guarantees of trustworthiness equivalent to other exceptions 2. Offered as evidence of material fact 3. More probative on point offered than other evidence reasonably available 4. Interests of justice served 5. Notice a. Reasonable notice to the other side that you are going to offered this evidence under the residual exception On the exam only argue the residual exception only if it does not fit within anything else. 12
The most often place where the catch all is used is when dealing with children. (If too traumatic on child and child has info that seems reliable)
CONFRONTATION ANALYSIS FOR HEARSAY – Only do analysis in criminal case where declarant is not testifying. 1. Determine if statement is testimonial or not. a. Was it a statement that the declarant would reasonably expect to be used prosecutorially? 2. If testimonial then it can only come in if the declarant is unavailable and the defendant had a prior opportunity to cross examine. a. If defendant kills the declarant then this rule does not apply. 3. If statement is not testimonial then can come in if declarant is unavailable unless exception does not require it and meets a firmly rooted exception or meets a non-firmly rooted exception and has particularized guarantees of trustworthiness. a. Only exceptions that are not firmly rooted are the catch-all and the statement against penal interest. OTHER THAN HEARSAY RULES 407 – Subsequent measures taken can not be used to show negligence, culpable conduct, defect in product, defect in design, or defective warning. A. In CA, it can be used in product liability, just not in negligence or culpable conduct. B. A federal case in CA uses federal rules under Erie. C. It can always be used to show feasibility if controverted, or impeachment, or ownership or control. D. Rule does not apply if there was a design change, and then an injury from the original designed product. 408 – Negotiation Settlements A. Evidence created in the process of settlement can not be used. C. The settlement negotiations don’t begin until there is a dispute and that dispute is to be resolved through settlement negotiations. D. If there is evidence that would otherwise be discoverable, then it is discoverable, even though it was referenced in negotiations, like pictures of videotape. E. Can not be used for impeachment either. 409 – Can not use a person’s paying or offering to pay for medical bills to prove they were liable. But if payment is accompanied by admission of fault then it is admissible. Rule 410 – Cannot use certain statements either in a crim case or a civil case. A. Plea of Guilty that is later withdrawn B. Plea of no contest C. Any stmt made in context of pleading guilty or no contest D. Any stmt made in course of plea discussion which do not result in plea of guilty Except: (1) when part of the discussion are bought in by the party (2) for perjury or false statement (not impeachment, perjury only, must charge him)
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Some courts say you must be talking to a prosecuting attorney. Other courts have a 2 prong test: (1) If the D subjectively believes he is involved in plea discussions and (2) it is reasonable for him to believe this, then 410 will render it inadmissible.
411 – Evidence that one has or does not have liability insurance is not admissible to show fault, or negligence, etc. Can be used to prove agency, ownership, control or bias of witness. CHARACTER EVIDENCE 405 – (a) When a witness is called to the stand and when character evidence is admissible, then we can hear evidence of reputation and opinion but not specific acts. On cross we can ask about specific acts (but remember, no extrinsic evidence) (b) Where the character is an essential element of the charge, claim, or defense, specific instances can be used on direct Defamation – To show that the guy is a liar Wrongful Death – Show how good the relationship was (for damages) Negligent Entrustment – Show that the dude entrusted was not to be Child Custody – Which was the better parent 404 – (a) Character evidence is only allowed in these situations: (1) If the criminally accused brings up any pertinent character trait. In these situations the prosecution is now allowed to rebut the same. If the criminally accused brings up traits of the victim, the prosecution can also attack the same in trait in the accused. (2) In a homicide case where the defendant is claiming self-defense, then the prosecution can bring in character traits saying the victim was peaceful. (3) Character of witness pursuant to rules 607, 608, 609. Honesty is not pertinent to violence Most courts say law abiding is good enough to be pertinent to violence Most courts say not enough to find reasonable doubt on character alone Can not talk about reputation or opinion that has occurred after the fight or incident in question In Civil cases character evidence can not be discussed unless it is a sex case in which we look to 412-415 FOR SPECIFIC INSTANCS: o Can ask the question only if we convince the court that there is a good faith basis for the questioning o Need limiting instruction that the jury can use the question only to analyze the credibility of the witness, not in establishing guilt or innocence of the defendant o Direct gets to re-direct on specific instances of conduct (b) Using specific instances of conduct for reasons other than action in conformity therewith 104(b) – enough that a reasonable juror could believe it 14
Proper Purpose o Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident Relevant to purpose 403 Limiting Instructions – If you believe that in fact this instance occurred, then you can consider it only for the purpose admitted, if you do not believe that the instance occurred, then disregard it. Reasonable Notice
412 (Must give 14 days notice) – (a)In a criminal case, generally evidence of sexual behavior of the victim is not admissible except: (b)(1)(a) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; or (b)(1)(b) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused or the prosecution If offering sexual history as proof of motive of alleged victim for accusing D of rape, then allowed under the constitution. (b)(2) In a civil case evidence of sexual behavior of the victim is admissible if the probative value substantially outweighs the danger of unfair prejudice to any party. 413 (Must give 15 days notice) – In a crim case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. The court can still use 403 to get it out The more similar the offenses, the more probative and less unfairly prejudicial The person does not need to be convicted of the previous offense, not even need charge to be filed. The person can even be acquitted of the previous offense 414 – Child molestation is treated the same rules as 413. 415 – Civil cases involving charges of sexual misconduct use the same rules as 413 406 – If you can establish that either an individual or an organization engages in a habitual act, then you can use that to show they engaged in the act this time. What is a habit? – A response to a particular kind of situation with a specific type of conduct. These are things that are instinctual, you don’t think about it. They are more reliable because you do it semi-automatically If a guy goes to church every Sunday that is not a habit. Too much reflexive time Alcoholism is usually not allowed as a habit Do we treat sole practitioner as a business or an individual? If you are incorporated then treated as organization. For organization must be a routine practice 15
WITNESS COMPETENCY Rule 602 – Every witness must have personal knowledge of what he/she is testifying to. Judge decides if you are competent (601), the jury decides if they believe you. Rule 605 – Judge presiding at the trial may not be a witness at the trial Rule 606 – (a) A juror can’t be a witness in the same case. (b) Can not call a juror to talk about jury deliberations, except to talk about extraneous prejudicial information that was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror 611 (c) – Can not lead on direct except when necessary to develop witness testimony. If there is a small child that is shy. 612 – If we give the witness a writing to refresh his recollection then these things happen. If the witness uses a writing to refresh prior to testifying the other side gets them if the court determines it is necessary in the interest of justice 614 – The Court can, on its own, call witnesses, cross-examine witnesses, and object. 615 – Exclusion of witnesses – Witnesses kept out of trial if requested Exceptions: (a) a party, if a person (b) a representative of party, if not a person (c) person whose presence is essential Experts, FBI agents (d) person who is authorized by statute to be present What happens if the witness sneaks in and hears testimony? Depends on prejudice, the court will decide. This rule suggests that witnesses can hear opening and closing statements Same goes for witness transcripts, can not show them the transcript or read them the transcript. But can talk to your witnesses about what other witnesses said. IMPEACHMENT 607 – Any witness may be impeached by any party 5 categories of impeachment 1. Bias – Witness has some reason to not like you or your party. 2. Defective sensory or mental capacity – You can not see very well, you have a bad memory. 3. Untruthful by disposition – You are just not to be trusted 4. Prior inconsistent statement
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5. Contradiction Impeachment through Bias: Showing that the person on the witness stand lacks credibility because they are biased. We must attack them on truthfulness, can’t just attack them for being a bad person. We can impeach experts by showing they have a financial stake. Not just paying you today, but for the entire case, or for the entire year dealing with other cases as well Can not have expert on contingency, against public policy Impeachment through defective sensory or mental capacity: What if an expert wants to bring in a report about how memory works? Split of authority, most courts say, no, people know generally how memory works and credibility issues should be left to the jury 608 – Credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation (a)(1) – the evidence must related to truthfulness or untruthfulness; and (a)(2) – evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked (b) – Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility may not be proved by extrinsic evidence. Specific instances may be inquired into on cross of the witness (1) about the witness himself, (2) about the character or truthfulness of another witness if the witness on the stand has testified about the character or truthfulness of the other witness. Marital infidelity is usually not considered probative of truthfulness Theft is also not considered probative of truthfulness Lawfulness is probably not considered probative of truthfulness PRIOR CONVICTIONS 609 – (a)(1)If it is a witness other than a criminal defendant, felonies come in subject to 403. If it is a criminal D, then it comes in if the probative value outweighs the danger of unfair prejudice. (a)(2) – for anyone on the stand, if they have been convicted of any crime that involved dishonesty or false statements, that info comes in. Can not even use 403 to get it out (b) – If it has been more than 10 years from the time of conviction or release from prison (which ever is later), then it does not come in unless the probative value substantially outweighs the danger of unfair prejudice. Also there must be written notice to the other side. Not sure when to measure up until, date of trial? Date of testimony? (c) – If there was a conviction that was pardoned, it does not come in, unless there was another felony conviction since then. (d) – Evidence of stuff tried in juvenile court is generally not going to come in. (e) – Just because a conviction is on appeal does not affect the admissibility Extrinsic evidence of this does come in if they deny it
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Probative v. Prejudice – At a minimum we need the fact that there was a conviction, the name of the crime and the date of the conviction or release. The trial court has discretion to hear more facts but the jury does not hear. GORDON FACTORS: Nature of the crime o High – Perjury, fraud, embezzlement, forgery, false pretences o Medium – Larceny, Robbery o Low – Narcotics, sex crimes, crimes of violence Remoteness in time Similarity to the charged offense – The more similar it is the more unfairly prejudicial it is. This is most important when dealing with a criminal defendant. Otherwise clean record Importance of credibility issues. The higher the level of credibility is at issue the more probative the convictions will be. This is for a he said/she said case. Importance of the D testifying. If we really need the D to testify, then the judge is more likely not to allow convictions in. * -- For 609, no specific facts, just name of crime and date. If on re-direct party wants to go into specific facts then the door is open. * -- Plea of no contest is treated just like conviction, the fact that you were convicted could come in, the fact that you plead no contest does not come in pursuant to 410 * -- If a trial court rules that evidence comes in, and then you don’t put the defendant on the stand so it never comes in, or if you put your D on the stand and then bring it up first to soften the blow, then you can not appeal. In the first case we don’t know if it would have come in, in the second case you brought it in first. 613 – Prior Statement of Witness (a) – No notice needed to impeach (b) – When using extrinsic evidence (another party) to impeach based on prior inconsistent statement, the impeached witness must be given an opportunity to explain. WATCH FOR OVERLAP WITH ADMISSION BY PARTY OPPONENT (where opportunity need not be given to party opponent). Impeaching party should tell the judge to hold first witness under subpoena Party of impeached witness has burden of recalling his witness. If he exercises reasonable search and can not find, then impeaching statements striken 408 (settlement negotiations) and 410 (plea bargain) can never be used, even to impeach 409 (payment of medical expenses) 411 (liability insurance) – most courts say can not be used to impeach. IMPEACHEMENT BY CONTRADICTION – Evidence that contradicts the witness 1. Evidence you produce impeaches the witness because it contradicts them, but it is also relevant to the substantive issues in the case. 2. Evidence you produce impeaches the witness because it contradicts them, but it also proves another impeaching point (like bias, or defective sensory capacity) 3. Evidence you produce impeaches the witness on a collateral issue.
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The first two are admissible, the third is usually not admissible. The exception for the third type is that it is admissible only if the collateral issue is so important that if wrong, it calls into question your entire testimony. You can not ask a question on cross-exam, get an answer you don’t want, and then call someone to contradict them. You can not open your own door and walk through it.
Rule 806 – We can impeach a declarant of hearsay as if that person had been a witness. If impeaching by inconsistent statement, need not give opportunity to explain 610 – Generally religion of a witness is out. Too much danger of unfair prejudice, confusing the issues, wasting time. BUT, can inquire as to religion to show bias. 701 – Opinion testimony by lay witnesses You can testify as to things you observe that are with reasonable perceptibility of lay witnesses. 1. Rationally based on perception of witness 2. Helpful to clear understanding of witness’s testimony or to determination of facts in issue 3. Not expert testimony Physical appearance, emotional state But can not say why angry Can not give legal conclusions 702 – Expert witness qualification 1. Scientific, technical, or other specialized knowledge, skill, experience, training 2. Helps trier of fact understand evidence or determine fact in issue If you meet 1 and 2 then you may give testimony that is: A. Testimony based on sufficient facts or data B. Testimony based on reliable principles and methods C. Principles and methods reliably applied to facts Daubert Factors (non-exhaustive list) 1. Testability/Falsifiability 2. Peer review/Publication 3. Rate of error 4. Maintenance of standards 5. General acceptance in relevance community 703 – Expert Opinion Testimony An expert may rely upon data as long as they are of a type reasonably relied upon by experts in the particular field and learned: 1. Before hearing 2. At hearing 3. From outside sources If it is an inadmissible piece of evidence the expert can rely on it, but it does not come into evidence unless the probative value (value of jury hearing inadmissible evidence to understand how expert came to conclusion) substantially outweighs the prejudicial effect.
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Expert generally can not base his opinion entirely on inadmissible evidence. Expert can rely upon statements of interested parties, but we can cross examine on it.
704 – Opinion on Ultimate Issue (a) Except as provided by (b), expert testimony may embrace an ultimate issue to be decided by the trier of fact (b) Expert can not testify as to mental state that is constituting an element of the crime charged or the defense Majority of courts have ruled that experts do not have a superior ability to judge credibility than the jury. Can not put on someone who says “I have examined the victim here and using my expert ability I determined she is telling the truth.” We do allow expert testimony on syndromes or scenarios that will aid the jury. If we have a battered women’s syndrome as a defense. An expert can say, “here are the things that typically accompany this type of situation.” Experts are allowed to testify as to physical symptoms. Can have an expert examine the woman and say the injuries are consistent with being raped. 705 – Expert need not give reasons for opinion unless required by the court 706 – Court can appoint experts PRIVILEGES GENERAL RULE – Communication will be privileged if intended to be confidential and made in furtherance of receiving legal aid. (When client dies privilege lives on) If client’s discussion with attorney is for a dual purpose (tax attorney does taxes [not legal] and gives tax advice [privileged]) then the court will look to the primary purpose of the communication to determine if under the cloak of privilege. Exceptions: 1. Furtherance of a future crime or fraud – If the communication relates to a future crime or fraud, then it is not privileged at the time it is made. 2. Joint Clients – When one attorney represents two people and they end up suing eachother, there is no privilege attached to the communications with the attorney. The attorney has a duty to explain this to the clients. And the privilege remains as to other matters. Joint-Defense Agreements – Most jurisdictions allow joint-defense agreements which allow the defendants’ attorneys to talk amongst themselves (or with other clients) and keep the conversations under privilege. Waiver of Privilege – If you want something to be confidential you must take reasonable actions to show that is what you intent was. If attny or client is negligent (acts unreasonably) and info gets out, then the info is not longer privileged. If atty or client acts reasonably in concealing and it still gets out, then the info is still under privilege. If atty intentionally lets out then still under privilege, if client intentionally lets out then no longer privileged.
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General rule is that a client’s identity is not privileged. There are some exceptions. You don’t have to turn over your client’s identity if you client sought your advice on the very matter he is being investigated. If a court orders you to turn over documents, and you do, and then it is reversed, those documents regain privileged status.
Corporate Clients – General Rule – The atty/client privilege applies to communications b/n counsel and any employee who possesses info needed by counsel to render fully informed legal advice. Upjohn factors: if you do these then communications will be privileged. a. The employees of the corporation made statements to the lawyers of the corporation for the purpose of rendering legal advice for the corporation b. The communications concerned matters within the scope of the employees' corporate duties. c. The employees themselves were sufficiently aware that they were being questioned in order for the corporation to obtain legal advice d. The communications were considered "highly confidential" when made and have been kept confidential by the company If you are corporate attorney, remind the employees that you are not their attorney, you are attorney for corporation. The corporation holds the privilege, the current board determines to waive or not. Psychotherapist GR: confidential communications b/n a licensed psychotherapists, or a social worker rendering similar services, and their patients, in the course of diagnosis or treatment, are protected from compelled disclosure. a)If communicated to someone you Rx believe to be a therapist and you Rx believe a relationship is created then privilege created. b)Even communications to support staff, made for the purpose of getting psychiatric help (diagnosis or treatment), than that is privileged as well. Marital Privileges 1. Testimonial – Whether or not the spouse can get in the witness chair at all. This lasts only during the pendency of the marriage. Privilege is held by the witness aka the spouse Privilege does not bar the use of the spouse’s admissible hearsay statements Some courts say the testimonial privilege does not apply in civil cases. 2. Spousal confidence – protects communications made during the pendency of the marriage. The privilege lasts in perpetuity unless both spouses waive. 1. Communication 2. Made with the intent to be confidential 3. Made during with the pendency of the marriage
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EXCPETIONS TO MARITAL PRIVILEGES a. If both spouses are joint participants in a crime then the privilege does not exist. b. Crime against a child of either spouse c. Crime against the spouse d. Cases of spouse v. spouse JUDICIAL NOTICE A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
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