Evidence

Evidence – read the advisory committee notes – to find the meanings of the rules Testimonial evidence – What the statements by the witness have said. Direct evidence - murder weapon, or physical evidence – no inference needed. Demonstrative evidence – Charts, graphs, anatomical model. Circumstantial evidence – requires the drawing of inferences to come to a conclusion. Problems 1-4 1. circumstantial - if all the factors were met, then it would be assumed that the letter was received. 2. direct - telling what she saw 3. circumstantial – need to make a inference 4. circumstantial – the fact that there are footprints, you can infer that there was an elephant there 5. circumstantial – if the gun, was registered in her name, then Betty owns the gun…QED 6. direct – 7. circumstantial – Appeal: if you do not object to evidence, then on appeal, you cannot content it. To make an appeal you must show that. 1. the error caused harm 2. if you have not preserved the error for appeal…unless it is a constutitional or plane error a. Plane error – the error is so obvious that nobody objects You must timely object to be able to appeal You must explain to the judge, if it is your evidence, why the material should be included. Evidence at trial: Illustration on page 16 – Can you let the piece of metal in? the judge must make a determinat that there is at least enough evidence that the jury can conclude that the metal came from one of the cars. Problem 2-2 The evidence is relevant – what is the standard of review…is there abusive discretion? Did the judge abuse his discretion in keeping the evidence out? If there is a plane error, then you will have to use the abusive discretion standard. Problem 2-3 This is a general objection, it does not specifically point to the legal ground for which the evidence is admissible…an objection to maintain the power to appeal, you must point to a specific legal ground. This may or may not be admissible, it may be inadmissible character evidence. Ohler v. United States – Motion in limine Prior convictions may come in to impeach a witness’ credibility – Because the testimony was allowed in you can decide two things. 1. you can keep the witness off the stand. 2. you can have the witness testify – but knowing that they will be charged with a. so you prick the boil – explain the conviction… you cannot appeal the piece of evidence that you offer, because the defense offered the evidence, then he waived his right to appeal, holding the evidence admissible. Federal R. 401 - Evidence is relevant if it is 1. Probative of (more or less likely) 2. a fact of consequence to the determination of the action. Any tendency to make the existence of any fact that is of consequence to the determination fo the action more probable or less probable that it would be without the evidence. Difference between relevance and Probative value: Probative value considers, how far the piece of evidence goes, in proving your fact. Basic relevancy does not go this far. One fact that is always material, is the credibility of the witness. For something to be material, you can have either: 1. you must look at what has to be proved 2. witness credibility – any fact that tends to suggest that the witness is or is not telling the truth is material. 3.1 – Yes this is relevant 1. yes – one who knows she is going to lose her child it’s more likely the mother. If she does not want the baby cut in half, most likely to care about baby, thus most likely the mother. 2. more probably than it would be without the evidence, 3. fathers don’t know who is the father. They would be reacting only on their assumptions, which may not be correct. 3.2 – Yes this is relevant - provides a potential motive to kill Valid, because it provides a motive. - if he wrote the letters, this suggests and affair, this then in turn gives Freddy motive to kill Jason. 3.3 – 1. Yes relevant – Bob used a $50 – if Bob used $50 – then he may have stolen – (low probative value) 2. May be relevant – but maybe such low probative value to keep it out. 3. This may go to showing the credibility of Harvey – if you broke the law before, you are more likely to break the law again (low probative value again) 4. where purse found, may be relevant to show more likely for a man or woman to have stolen, or to limit the class to males or females…but this could be argued both ways, that someone would hide it in other bathroom to confuse. 3.4 – is this relevant to the prosecution 1. Yes. eddie could be casing the job. 2. Yes. one who has previously robbed, is more likely to rob again 3. Yes. But weak, because unproven. one who steals, will steal again 4. Yes. Eddie is a person of low moral character, or violence, tendency to violence 5. Yes. Eddie was late on payments. Motive 6. Yes. Motive. Eddie needed money. 7. Yes. people who own guns, often are not afraid to use guns, or have more than 1 gun. 8. Yes, Eddie is a good father, who would never risk his children;s future. 9. Yes Eddie has been convicted which attacks his reliability, willing to break the law. 10. No – irrelevant. 3.5 – This shows that Al, intended to go, and that he inteneded to go with Harry. IF Al was going then it is more likely that Harry intended to Go to the Creek, so the fact that a body was there, would reasonable place Harry at the scene. 3.6 – Not relevant Is this relevant to a fact that is of consequence…here a fact that is of consequence, is whether or not he was on a “fun and Frolic” drive. This is not relevant to the fact at issue. 3.7 – Yes relevant. This goes to show motive for the fire. Did the insurance suddenly quadruple, was this ordinary? Did he intend to benefit from the insurance, to benefit the house would have to burn down, if the house would have to burn down, then it is more likely that he did burn down the house. 3.8 – Yes relevant - where he is may effect his perception of the robber, did he have a clear view??? This is the central foundation as to where he is located, and whether or not he could see the robber to identify him. 2. how he felt is relevant, to prove that it was a robbery (proves an essential element of robbery) 3.9 – Valid – Jets might know that they were using cocaine. If he had cocaine, then he has a source, then he can distrubite. Or if he had cocaine at the time, then he was a distributor. Or if he was using coke, then he might need money to support this habit, so he could go into the sales business of cocaine. 3.10 – Relevant to the fact that Franz, this may affect his state of mind, and he belief that he was about to be attacked, or he was in harm of being attacked. Does not matter, only whether it was a RX belief that he was in danger (affecting his state of mind) 3.11- Joes age is irrelevant – this does not have any tendency to prove his age. Invalid – where the age of the defendant was not in question. 3.12 – the role of circumstantial evidence will vary according to the legal standards in different jurisdictions. In NY, it is allowable to take into account the characteristics of the defendants, then 1. not relevant 2. not relevant 3. maybe relevant, as to if the 4 youths were much larger, and posed a threat to the safety of the smaller 4. maybe 5. maybe (does he feel as a gay person, he is targeted in society?) 6. he would have to know that… 7. yes- if below ground more likely nobody will see 8. does this reflect a prior knowledge of the fact that a RX person would believe they were in danger 9. when would a RX feel there was danger. 10. sean has been mugged, thus, if he is a RX person, this may be a situation where he was robbed previously. 3.13. – 1. yes, if he bought, then he is someone more likely to drink alcohol 2. maybe relevant – if he is carrying, then he may have drank the contents, if he drank on that day, then he may be drunk… 3. yes, possibly relevant…if it was half empty, then we can draw a strong inference that he was drinking. 4. yes, because shows he may have been intoxicated. 3.14 – Yes. Relevant to impeach the witness, and relevant to show he believes his case may be weak. If plaintiff is trying to bribe, then it is more likely that the Plaintiff is uncertain to his case. 3.15 – 1. relevant - If Haynes believes that a guilty will die, then his refusal is valid…but the refual to jump is just as likely that he does not agree..and knows he will die if he jumps…so this shows that each side has an argument…so the judge will have discretion to withhold, or bring it in. 2. attempting to escape, shows he will try to get out, instead of jump. 3.16 – Relevant – if he has guns, then it is more likely that he has the ability to make threats, and if he had the ability, then he is more likely to have made the threats. Guns are valid. 3.17 – 1. conditionall relevant – the blade is useless unless it was part of the exploding cutter 2. if it is part of the cutter, then it is relevant 3. ???trying to distract the jury? 3.18 – 1. maybe, if it can be shown that this type of glove could help perpetrate this crime 2. that the crime as committed was possible using the gloves, that the gloves fit the defendant…etc. 3.19 – the drug statute was a specific intent crime, so if there is a mistake of fact, then it would be relevant if the defendant actually believed that he was swallowing diamonds. Relevant for the feasibility or profitability for the belief that he could be swallowing diamonds. Dr. burns testimony of the profitability is not relevant at all, unless it can first be established that the defendant believed he was swallowing the diamonds not the heroine. 3.20 – 1. yes 2. no 3. maybe 4. maybe 5. maybe 6. no 7. maybe 8. no 9. no 10. maybe 3.21 1. yes 2. yes 3. yes. 4. yes 5. yes 6. maybe 7. yes. 8. yes. 3.22 1. no 2. maybe 3. yes 4. yes 3.23 – Chapter 4 – relevant but inadmissible evidence – unfairly prejudicial evidence. Please be aware to use the 403 standard. 403 shows that the probative value must substantially outweigh the unfair prejudice. We must weigh probative value v. confusion, misleading and/or efficiency. To establish something where evidence is not readily avaliable If an accident has occurred and you don’t know what has really happened, but you have a number of accidencts at the site, then the other accidents can help shed some light on how this accident happened. Make sure that the similarity is very high…but shows that there is a lot of unfair prejudice, because of confusion (jury knows example, not this case) misleading, and efficiency. To show high similarity, you raise the probative value, to then make the scale tip into the favor of allowing the evidence. 4.2 – Evidence should not be admissible 4.3 – Evidence may not be admissible unless it is to show some disputed fact. We know the people are dead, so this may be evidence showing excessive gruesomeness. Instead the prosecutor should stipulate, death by gunshot 4.4 – 1. may be unnecessary to show how the jaws cut him out. 2. necessary, because while prejudicial, it tends to show the type of damage that was done 3. new trial if it is too prejudicial? 4.5 – Some parts should not be, they would be a waste of time! 4.6 – ? 4.9 – yes this should be allowed - it was negligent to allow the puddles to stay – when did the puddles exist (time wise) did they disappear, were they from rain? Are there circumstances that show similiarity of condition, then the probative value increases. - why did the people fall, did they fall on the puddles or fall on other things 4.10- Should be allowed, because the nature of the shrimp is similar to that of scallops and clams, all being seafood, unless one can prove that shrimp ships differently than scallops or clams. - prior dealings are generally allowed, just need to identify how things are or are not similar. 4.11 – this is more of a statistical evidence. You need to characterize Suzanne and prove she fits the description of all 5000 people before her (unlikely) and prove that everything was exactly the same for all events. Usually this type of evidence is excluded. Generally only the company has reports of the reported injuries, were there others…. What about the ride operator on this day…did he do something negligent. 4.12 – should be allowed, if the machines have a tendency to explode we would want to know about that. 4.13 – contested complaint should not be heard, but the other two may be included because they show a pattern of this behavior. 4.14 – 1. the towels are likely stolen, thus he steals….socks seem to be totally irrelevant. 2. this is a lot of suits, how could he have all these suits, did he buy them all? Need more information here to see if the number of suits is relevant. How much probative value the is with the evidence. 3. if he stole before, he is more likely to steal again. This may be higher probative value. Is he shoplifting from a department store, that may show character of theft, but does not show to stealing from a house. This is probably not admissible. 4.15 – 1. this is unfairly prejudicial, too gruesome… it bears on damages not on negligence. 2. shows the nature and types of damages. 3. not allowed, too far removed from how Stanley was negligent. 4.16 – negligent maintenance and repair of the floor. 1. should be allowed, to show that the area was very slippery. Was this the same floor, what type of people fell? Did people fall after? If people fell after this could be reckless. 2. probably no, low probative value, and too much unfair prejudice. 3. how can you connect this to the case…are they falls on all their floors? Probably not, so this is irrelevant, and not allowable. 4. should be allowed, shows she has bad balance/ falls a lot and has nothing to do with floor or surface. 5. should be allowed, this contradicts her evidence, and may prove that she is just a clutz, with her other falls, not that the floor is dangerous….but this is ambiguous evidence, did nobody fall, or did nobody report. How different was the wax this time versus the past 3 months… 4.17 – 1. not admissible. 2. not admissible 4.18 – probably not admissible 4.19 – should be allowed to show the custom in the trade 4.20 – probably not allowed, but maybe to show that the bite marks match Jorge, which would then put him in close contact, and close contact makes him more likely to have commited the murder. - the reliability of an expert on the bite mark… - when were the bite marks inflicted…if at the time of murder, then it has higher probative value Old Chief v. United States. The fact that he was a felon, is a status crime – There was an admission – that he had a prior felony…if he is willing to admit the status, the nature of the crime to which he was committed, adds noting to the case. Hearsay – There are 3 things that must happen anytime for a witness to testify 1. under oath 2. observe their demeanor (must be in the court) 3. witness must be subject to cross examination. §802 – Hearsay is not admissible unless you have an exception or by statutory rules §801 – a. statement – a statement is an oral or written assertion or nonverbal conduct of a person if it is intended by the person as an assertion b. declarant – a declarant is a person who makes a statement c. hearsay – is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Out of court – a statement that is made at this proceeding. Things made at a pre-trial motion etc. are actually hearsay. Statement – the statement must be an assertion of fact a. an assertion is s statement that asserts a fact – this can be true or false. (who said that? Or Open the Door?...) are not assertions, thus it is not a statement. b. A statement can include verbal or non-verbal conduct, if the non-verbal conduct is intended as an assertion Declarant – a. person – (not an animal) Offered to prove the truth of the matter asserted – a. when you offer an out of court statement, you need to know what it is you are offering to prove. b. If the statement would prove what I am offering to prove, even if it is false, then not hearsay. a. If relevant to the case, only if it is true, then it is hearsay. c. what is important. a. The fact that the statement was made or b. The truth of the statement… Likely to be hearsay, there are categories What are not likely to be hearsay – a. category of circumstantial evidence of state of mind – a. “the building is on fire…” i. this is circumstantial evidence of a hearer’s state of mind, ii. when words have an effect on someone, and the relevance of the words is to explain another’s action, then those words are not being used for TOMA, instead they are being offered for circumstantial evidence of the state of mind of the person who heard the statement. b. “I am the walrus” a. Statement not to prove the truth of the matter asserted, but instead to prove circumstantial evidence of a state of mind, that Im crazy… b. Words that allow you to assert something about my state of mind. Impeachement – If a witness testifies, that when the Car went through the intersection, that the light was green… Isn’t it a fact that you told the officer that the light was red, not green. This is being asserted impeaches the credibility of the witness. Offering not to prove that the light was red, but that the witess has changed their story. And by changing the story, the witness now looks less credible. Res Gestae – basically a rule of completeness – allows someone who offers evidence, to put everything in context. We want to hear the whole story, so if you are offing an out of court statement that is admissible, then you need to set the statement up with hearsay that will be allowed to come in. Operative facts – If you bring a K action, then you must bring the K into court. Hearsay, would not be a proper objection, because there is independent legal siginificance to do something. Any words that create legal duties or affect legal status, are not hearsay. Circumstantial evidence – of memory – Ex: rape victim – was taken to apartment linked to an apartment of the defendant. If the victim is able to describe the furnishings of the apartment, and there is independent descriptions of the apartment. Then the victims out of court statement of the out of court furnishings, show circumstantially that the victim was in the apartment. Problem 10-1 1. not hearsay – the dog is not a declarant –not hearsay 2. hearsay – you can be both a witness and a declarant. 3. hearsay – out of court statement used to prove 4. hearsay – this is a non-verbal assertive conduct 5. not hearsay – in court testimony! 10-2 This is hearsay. Out of court statement, to prove the assault and battery. 10-3 Not hearsay. This is not assertive conduct 10-4 Not hearsay – when you have to draw an inference (the act of admitting a patient to a hospital) then this is generally not hearsay – the fact that a patient is in a mental hospital, may lead you to infer that he has a psychiatric disorder…but this is not intended to assert that, you can only draw the inference from that action. 10-5 Not hearsay. This is not a statement, and it is not offered for the truth of the matter stated, instead it is circumstantial evidence of conduct to prove insanity. 10-6 This is an action, not a statement, so not hearsay. More likely, the doctor is coving the head, out of respect for the dead…this is conduct that is not intending to assert something. 10-7 Techinally hearsay, statements asserting the truth of the matter asserted. 10-8 By writing letters, this assumes that the person was competent. Is it likely that the people who want to do business with this person are intending to assert anything? NO. It is circumstantial evidence of the state of mind of the speaker… There are 4 elements 1. out of court 2. statement - a. ascertion/verbal or non-verbal if intended as an ascertion b. must be a statement of fact. 3. declarant – must be a person, can be witness/current person who is testifying 4. for the truth of the matted asserted. a. how is it relevant? b. how is the statement relevant to the case/ c. is this still relevant if it is not true? i. if this is still relevant if not true, then not TOTMA. 10-9 Out of court, statement, by declarant, This is not being TOTMA – so it is not hearsay. 10-10 NO – not hearsay Yes, this would be hearsay…the statement is TOTMA Is this relevant? But because this does not have any independent legal signifigance. The assertion is the fact that they say “I do” so this is Hearsay. 10-11 Not hearsay, not offered for TOTMA. The issue is whether he can talk, not cry 10-12 This is hearsay. This is being offered for the truth that he can cry. 10-13 The statements are being offered to describe the house….what are you trying to prove? Who molested her. How is what in the house relevant…it will show that the child was in the house. If you limit this to the issue of whether the child was in the house… The statement that the house contined the doll, is circumstantial evidence that the child was in the house… According to the statement, the molestation occurred in a house with particular furnishings… The part that is hearsay, that “I was molested in a house with XYZ furnishings” 10-14 Not hearsay, this is impeachement of the witness. It does not matter whether the inconsistent statement was true or not, it only matters if there is a different statement taken in the court room. 10-15 – admissible to impeach, but inadmissible (hearsay) for the TOTMA. Yes, if it is used to impeach, then she can use the statements. It is only admissible to show a different statement, it is hearsay, because she is using it for the TOTMA No, this would not likely be sufficient. Unless you can admit the prior statement, to prove the TOTMA, that Barney took the skates, then you will likely lose. 10-16: 1. …NO. not a person…not hearsay 2. NO….it is intended as an assertion, it is hearsay…but it is not hearsay here. 3. 4. 5. 6. 7. 8. probably not a statement, or not being offered to prove the truth of the matter asserted elements are met elements are met…it is possible that this might be admissible under an exception verbal contract, not hearsay no statement, there is no assertion If you are offering it to show that the accident was the cause of death, then yes, but more likely Non hearsay- if it was to show that he died instantly from the accident, then not hearsay. The fact that he spoke, not what he said would be relevant and make it non hearsay 9. NO. this is a conduct, so it must be intended as an assertion. 10. Yes, an autopsy, report is a verbal statement, then that statement is being offered to prove TOTMA. 11. yes. It is being offered to prove it is his son 12. yes. 13. yes. This is hearsay, this is also, almost always admissible 14. YES. This question contains an assertion of fact, that the two went to the store together 15. yes. 16. no. the statement is offered to give notice, so it is negligence…because Otis made the statement, therefore 17. Not hearsay. This is impeaching. 18. yes. This is a statement TOTMA 19. not totma 20. yes 21. yes. This is a backward looking statement…the later admission is hearsay. 10-17 – 1. y – still out of court statement 2. y- if trying to prove that Cassidy started the fight. a. No – if 3. N- if it is a term of a K, then it is not a hearsay, these are words of independent legal significance. K’s are not assertive, they are just legally significant terms. 4. n – non verbal conduct (the conduct is being offered) this was likely not intended as an assertion. 5. y 6. NO - assertive conduct, out of court, but it is an independent legally significant act, (if you agree to the conspiracy…you are now a co-conspirator…thus the act, is not just an assertion, but is an act of joining the conspiracy) 7. YES – can silence be an assertion? If someone says something that you would deny, if it were not true, then the law allows silence to be taken as an adoptive admission. 8. yes – here the receipt is a statement from a declarant. 9. n – the photo is not an assertion it merely records conduct…not hearsay 10. n – it shows that she was still alive…the truth of what she says is not relevant 11. n – there is no assertion, the fact that he attempted to kill him is non assertive conduct 12. yes 13. y – she is saying it, it is direct evidence of her state of mind. 14. n – non verbal non assertive conduct. 15. n – South, is intending to communicate with police, then this is hearsay. 16. n – not offered for TOTMA 17. y - yes NO. yes. yes. NO. NO. NO. 18. y – if it is direct evidence, then it is hearsay. (direct evidence- the lawyer is offering it because if O liked H, it was more likely that he was leaving her money) if the truth of the statement does not matter, then it is more likely that it is hearsay. a. NO – if you are offering to show her identity??? Im really confused. 19. y 20. N – if she proves that the drink was poison, a reasonable person would not drink the beverage if someone suggests that the drink had poison, then they are not acting reasonable. This issue here was whether or not the person acted reasonably. So this is not being proved that the statement is poison. 21. y 22. y – this is being offered to prove that he did not… 23. y - how is the statement relevant (that was her intent that morning), so you are relying on the statement for the truth of the matter stated. 24. y – his out of court statement, and her out of court statement, especially make this hearsay. 25. y- TOTMA 26. n – circumstantial evidence, 27. n- unassertive conduct 28. n – not assertive conduct 29. n – not assertive conduct §801 – d – statements which are not hearsay. A statement is not hearsay if – D1 – prior statement by witness. The declarant testifies at the trial or hearing ad is subject to crossexamination concerning the statement. A. a. the statement must be inconsistenet b. the statement was made while the witness was under oath and is subject to perjury. c. Made at a proceeding, trial, hearing or deposition. Why is this allowed – because we can see the person, we can see their demeanor…etc. We want to include a statement to prove the truth of the matter asserted. We know that under (a) we can use a statement inconsistent with the declarants testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or their proceeding, or in a deposition B- consistent statement 1. consistent with the declarant’s testimony, and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Day 1 – D says “light was red” Day 5 – Defendant offers D a great job Day 30 - D says “light was red” Trial – Questioned – didn’t you change your statement because you were offered a great job (this would be trying to impeach for proper motive)…thus only day 1 would be admissible, because it was before the improper issues. Now changing on day 5 “light was green” Trial – didn’t you say on day 5 “light was green”…which statement now rehabilitates? 10-18 – 1. this should be allowed to impeach, this was a statement that was taken in a deposition, thus can be called upon as a prior inconsistent statement. This is a prior inconsistent, and they are relevant to the case. 2. for TOTMA – 3. yes, I think so 4. I don’t think so 10-19 – 1. no because the statement was made out of trial, so this is not allowable. For TOTMA….IN california, it would not be allowed 2. NO, this is probably not a proceeding, where the statement would receive any objective scrutiny…so still not allowed for TOTMA>..only for inconsistent statement impeachment purposes only. 3. does it matter when he made the inconsistent statement? Here it shows that he just keeps changing his story. Here is cannot come in as a prior consistent statement, nor can it come in to rehabilitate his memeory… But in CA< then this can come in…because you can offer any prior consistent statement. 10-20 1. I think this is ok, because this is a consistent with the testimony given. 2. ? 10-21 This is hearsay, but is admissible as 801d1c – 10-22 This is hearsay, unless the blind man was there, who was able to be cross examined. Thus the evidence would not be admissible unless that blind man was there. 10-23 – 1. This is a prior statement of identification, and is admissible. 2. no. this is not the person testifying who is doing the identification. Marv would have to be there so that he could be cross examined. Admissions by a party opponent – R 801d2 This does not mean that it needs to be any admission. 1. The statement must be offered against 2. the opponent why is this allowed – 1. the party can clarify the statement 2. it does not seem unfair to hold someone to what they said…if it is unfair, they can get up and explain 3. statement made prior to the litigation, is more reliable than a self-serving statement made at trial. Rules of 801d2 a. it is the party’s own statement… a. there is not need to have personal knowledge. b. the party adopts or acquiesces in the statement of another person. a. Eg. Where there is an affirmative statement/ made by another individual. (when you say yes to a question or a statement) b. What about adoption by silence – silence in certain circumstances is adoptive i. Prove that the person heard the statement ii. Must be the type of statement that someone would refute if not true. iii. Serious accusation…it must be a statement by someone who would likely be taken seriously iv. Nothing prevents the response…if a person has been mirandized, the silence is completely ambiguous. c. the pary authorizes another person to make statements about a subject. a. Speaking agent – could be a real-estate lawyer…etc. d. the party’s agent or servant makes the statement concerning a matter within the scope of the agency or employment, dring the existence of the relationship. a. Must be during the course of employment/agency of person…not after he was fired…etc. b. Statement must be in the scope of the employment /agency. e. A co-conspirator of the party makes the statement during and in furtherance of the conspiracy. i. A judge needs to just find by preponderance of evidence. This is lower than the jury a. Co-conspirator (coventurer) b. Statement must be made during the conspiracy – not during post arrest. (pendency) c. In furtherance of the conspiracy. (furtherance) Mahlandt v. Wild Canid Survival & research center – The statements can be made within the employment situation…from employee to employee, and there need not be personal knowledge. The statement need not be broadcast to a third party to be admissible. 10-24 – This is her 10-25 – The issue is whether facts asserted in testimony are binding. 10-26He is admitting that he does not have personal knowledge – There is an employee agent statement, if this is in the scope of employment, (personal knowledge is not required) so this is admissible against Horton air. 10-27 – This is a context where there might be a reason he did not respond. This is a non-serious situation, they are joking, etc…so there are other rational contradictory explanations. 10-28 – She is a press secretary – so she is a speaking agent. Thus this is probable under secion c. So you can use this against Bilkem, because she is an agent This is not hearsay, so it can be offered for the truth of the matter asserted. 10-29 – The accountant does not deal with dumping, so he might not have expertise. So without some showing, then it would be hard to find how this would come in, under 801 d- the statement does not have to be made during the work day. 10-30 – This is an employee agent, and the statement was made before she was fired, and this is in the scope of her employment. It does not matter that the statement was made to her boss, the fact that someone else heard is suffiecient. This can be used for TOTMA 10-31 – Are these co-conspirators? 1. involved in a conspiracy – 2. during the course 3. and in furtherance of the co-conspiracy – you would need independent evidence of the existence of the conspiracy – the statement can be used to show that there was a conspiracy. 10-32 – 1. cant find under conspiracy – because this is not during the conspiracy because of the arrest 2. this could be used against moe, only if he is tried separatly 3. yes this could be important to try Moe individually. 10-33 – This can come in during 801d1a – this can be offered for TOTMA, as a prior consistent statement. On cross 10-34 – there are 2 ways – if the Id was the dog nappers was inconsistent, then you could use impeachment – If it is consistent then you can have it come in, because you would be offering it as a prior identification, 801d1c – all you need to show is that the prior ID was made and that the declarant is in court and is able to be cross examined. 10-35 - here, he is likely a speaking agent, but then you put him in a news conference he also could be an agent for the company. 10-36 – this is within the scope of employment, during his employment, so admissible 10-37 – 801d2 – there is no personal knowledge required. Here an agent can be used as a statement against the company, even though the agent had no personal knowledge. 10-38 – statement was made after the conspiracy ended – so it can be used against him, 801d2a But it cannot be used against catarina if she is tried separately, because on arrest he is no longer a member of the conspiracy. Rule 802 – Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of congress. Exceptions: 803 – no unavailability requirement (the declarant can be in the court room and not on the stand or will not take the stand and you can still have the statement come in) - statements made under certain circumstances are trustworthy. 804 – these exceptions require the declarant to be unavailable – Present sense impressions – 803 (1) – a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (looking for someone who is describing the actual things they are immediately percieveing) it is though to be admissible, because it is being stated while it was happening, the likelihood of falsity is low, and it appears that it is more reliable) -10 minutes later is too long… -the key to apply this, is to ask yourself, has enough time elapsed so the witness could think about and modify their statement? - content – you are limited to describing an event or condition. No commentary as to things that relate to the description. -CA is much more limited §1241- contemporaneous statements, while declarant was engaged in conduct, But only to describe or must relate to the declarants own acts. 803 (2) - excited utterances – A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Because we think that the person being so excited that they cannot reflect to change the story. This must be excited and it must have persisted for the entire time between the event and the statement. The statement must be related to the event. What if you have your excitement revived…after they have been behaving normally…during that period of calm that person might have been thinking about what they were going to say, then this is unlikely to come in, only a few courts will allow this type of evidence. - CA - §240 fairly similar, - narrate or describe or explain an act and be made spontaneously while the declarant was under the stress of excitement caused by such perception. 10-39 – this would be fine under the 803 (1) it is being contemporaneously, and is descriptive 10-40 – 803 (1) does she know what kerosene smells like> here there must be personal knowledge, so you would need foundation to show that she knows this. 10-41 – 1. this is an excited utterance – it “relates to” but does not describe the fall, so you could not use 803 (1) you would have to use 803(2). 801d2. 2. 803(1) this sounds like a present sense, but you don’t have personal knowledge, you have an unknown declarant, so it is hard to establish personal knowledge. This does not alone prove that the bystander saw the fall…so this may not be admissible. 3. this is not hearsay – because it is in court testimony – 4. hearsay – 10-42 – This is a long time after – probably not in an excited utterance – 10-43 – is this a party admission? (look who is offering it, the defendant is offering his own statement) party admissions must be against a party opponent – so no. This could be a 803 (2) excited – or 803 (1) as a present sense impression… 10-44 – Is this hearsay – this is showing a state of mind – but you are relying on the truth of the statement – this is hearsay, and would come in under 803 (3) – state of mind, and could come in under the present sense 803 (1) as well. State of mind exceptions – 803(3) statement of the declarants state of mind. But not including a fact… Reasons for the exception – declarant is talking about something going on in his head… There are some overlay with 803(4) – with respect to the emotion…the statement must be then existing. The statement…”my head really hurts” can come in… If the out of court statement, says “last week my head was hurting” will not come in, because it is not a report of a then existing condition. We consider the declarants statements, as he is feeling them, to be more reliable then asking about it a week later. There is a strong belief in reliability. “im planning to go to santa Barbara” and it is offered to prove I was in santabarbara, it is admissible, because it shows the state of mind of the person. 10-45 10-46 10-47 10-48 10-49 10-50 1. Is this hearsay- is it an assertion? The assertion if any, was what number she told him…here Jane is a party opponent. This is admissible because Jane is a party opponent – this should be overruled 2. memory is refreshed… 3. 4. 10-51 – 1. first we must ask a question if he knows, then we can help to refresh if he does not have any present memory…the book itself cannot come into evidence, but you can have the witness, or lawyer read it to him. 2. the book itself cannot come in. Business records – Because the company need to rely on the records for their own survival, then they are more likely to be reliable. The records must be in the furtherance of the business. Thus a railroad business can have business records of tickets, or scheduled trains, but they could not have records of a specific accident. Although this may still come in, if the company only has records to identify how and why the accident occurred and that the records are used to help the business. Generally these records are made to remove liability, with an eye towards litigation from the business or its employees. 10-52 10-53 – it does not matter who made the record, if the witness can testify that one person who normally makes the records, would have had personal knowledge. But we don’t have any specifics about how the records are compiled, and what steps are taken to ensure accuracy, and what business purpose these records serve. 10-54 – there may be a problem that the record is not of a reguraly conducted business activity, thus it is not admissible under 803(6) 10-55 – 1. this is not the business that they are in, so this is not part of the regular business activities. – this is not being made for a business action, they are just used to help the company defend in the case of litigation. If the goal of the record keeping, was to improved safety, then that would be more likely to be admitted…because it would be more likely to be reliable. 2. this is an ordinary course business generally is allowed…but this was created for the purpose of testifying at trial, this makes it more unreliable. If the person who hired the expert, offers the evidence, then it is more likely to not come in, if the other party offers the opinion of the expert, then this would be more likely to come in. 3. etc. Public records exception – this is the governments response to the business records exception. Why is this justified – out of necessity, we are going to have a hard time, proving some of the kinds of facts that are reported in these documents…generally absence of memory, because of the routineness of the jobs…there is also a high turnover rate, so it is hard to find people that might have been on the job. It is easier to get the records instead of getting the person. 803-8 (A) the activities of the office or agency – routine matters, no criminal restriction…it is the agency recording its own day to day matters (B) matters observed when there was a duty to report. Excluding in criminal cases by police officers and other law enforcement personnel…you cannot offer a police report in a criminal case…the defendant has the right to cross examine police officers (driven by the 6 th amendment) (C) evaluative reports – factual fidingins from an investigation made pursuant to authority granted by law. An opinion may come in, if the opinion is from someone who is proper to make the opinion, and whether the facts support making such opinion. Make sure it is not revoked or superceded, was it based on personal knowledge, was there bias…was there institutional bias. Was there any kind of a hearing held? Was the investigation timely to the event. 803(9) – vital records – records or data compliations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. The source of information is outside a public agency…but because the information has as their source the personal knowledge of someone not in the government. 803(10) – absence of public record or entry – covers the situation where someone says they looked but did not find a record. 10-55 4. admissible under 803(8)b – matters observed 5. that it is found to be accurate 803(8)c – and that it was calibrated ontime would be 803(8)b – this is a civil case so everything would be admissible…if this would be for criminal negligence, the factual finding could not be admitted against a criminal defendant. 6. 803(8)C – this is a factual finding, 7. this is admissible under 803(8)c – unless it is not trustworthy… 10-56 – This might be admissible under the excited utterance. This is double hearsay, the officers statement, and the statement of the bystander. So if the officer arrived quickly, and the person was still excited then you could possibly get the utterance in. 10-57 – 1. 803(8)c – this is an evaluative report. 2, vital records 803(9) 3. crime restriction on the report, but no restriction on the vital report. 10-58 – the evaluative report cannot be brought in. if this was not the DEA< but a private company, then the business records exception 803(6) may be used. 10-59 – 1. yes 2. depends on the report…is this a regularly conducted business record. 3. probably not…because not a regular business practice 4. yes 5. not part of the business records 6. is this a regular business practice? As to keeping the notes to show a source 7. “occasional” this is not a regular practice 8. yes. 803 (11) – - different from 803(6) if that an employee or member of the businsess…this does not exist in 803 (11)…where information can be provided by the parents, or other members of the religions organization. 803(12) – if you need to prove date of death, bring the URN>..the inscription can be used to prove date of brith or death. Or can be proved for wedding rings, or etc… 803(14) – a deed can be admitted, to show how it was recorded and how it was received. 803(16) – documents which are 20 years or older – and you must establish the authenticity. CA – documents must be 30 years old – 803(17) – market quotations, tabulation, lists directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupation. 803(18) – the treatise is admissible as impeachment, or to bolster an experts testimony…(an opinion witness) and you must establish that this is a learned treatise. - if a doctor says that an incorrect medicine was given, then you can use a treatise to either impeach and show opposite of his testimony, or you can have the treatise help prove the testimony… 803(19)(20)(21) – reputation - we are looking at the reputation of X as a violent person… 1. reputation is hearsay, because it is what everyone says about a person a. are you trying to prove why this person acted in this way…because it is not for the truth of the matter asserted…This is not Hearsay for this purpose. 2. what people think about X – this is a state of mind exception 803(3) 3. when you are offering TOTMA for the reputation…803(21) 803(19) – Evidence about a reputation, among family members – - reputation of where a person is from…including DOB, when married, where they are from, where they lived…matters that are generally known in the family. 803(21) – reputation as to character – - one of the most common uses, is to show if a person was, or was not likely to commit a crime. 803(22) If you just want to prove of guilt or innocence, then previous convictions come in as public records… If the robbery was “armed robber” then you could admit this information proving the facts that were essential to the conviction. It must be a felony, and the conviction must not be found on nolo contendre… - we think that these judgments are reliable, because these would have been vigorously contended in court. 803(23) – generally used to prove that there was a divorce. Etc. - this also assumes that the matters were carefully litigated. 10-60 – 1. Admissible under 803(17) – 2. phone directory – 803(17) is again admissible 10-61 – 803(18) learned treatise – 10-62 – Admissible under 803(21) 10-63 – 1. is this admissible – 803(12) – might also come in under public records 2. 3. this is a family record – so if you can authenticate it, then it is admissible 4. admissible under 803(13) – there would be problems of the witness testifying of the date, we would need a picture or the tombstone 10-64 – this is sufficiently reliable evidence, thus it is reliable, if there is no ancient documents exceptions…but since it is more than 30 years old, it would be 803(16) – 804 – exceptions – the witness must be unavailable Two step process 1. ask whether the declarant is unavaliable to testify i. there are 5 reasons to satisfy the unavailable requirement 1. privilege – in order to demonstrate, in most cases you have to call the witness to the stand, and the witness has to invoke a priviledge…finally the court has to recognize that the priviledge prevents the witness from testifying. – you do not need to call a defendant, just for the purpose to have the defendant invoke the 5 th. 2. refusal - witness to the stand, and you have to have the witness say that they refuse to testify. Then you must ask the court to order the witness to testify under penalty of being held under contempt. If the witness persists to testify, they will then declare the witness unavailable and then fine or jail the witness. 3. absence of memory – the court can make a determination if the absence of memory is true, or if it is really a refusal to testify…if the court believes the witness is faking, then you go to refusal…if the witness really does not remember, then you determine the witness is unavaliable 4. death/serious illness – if dead, then straightforward…serious illness, if there is a minor illness the best solution is to ask for a continuance for illness. If serious, or will be out a long time, then this is where this is applicable. 5. absence – you have to first try to take the witnesses declaration…the person is out of the jurisdiction 2. look at the other requirements… California rules – 240 – the unavailability of a witness Does not mention absence of memory nor does it mention refusal So long as several conditions are met. Testimony must have been given in a proceeding such as in a depositon and the same party against whom the former testimony is now offered must have had an opportunity to examine the declarant in the prior proceeding. the party must have a similar motive to develop the testimony in both proceedings. 10-65 – witness competency… 1. yes- he is mentally unavailable, in federal court, the witness would be unavailable…in California, you would be (2) disqualified from testifying to the matter. 2. no – why is he absent? He is absent and the defense is calling him, and the defendant paid for the trip…if you procure the unavailability of the witness, then you cannot claim that the witness is unavailable. 804(b)1 – Requires that the declarant be unavailable – 1. unavailability – 2. the testimony must have been given at a prior proceeding or deposition (it must be testimony or a deposition!) 3. the testimony must be offered against the same party and the party must have had a similar motive and an opportunity to develop the testiominy. Thus the testimony must have had the opportunity to be molded by direct or cross examination. IN civil cases only, you are not restricted to the same party, you can offer the testimony, had been offered against a predecessor in interest, who had a similar motive to develop the testimony. Ex: Trail #1 – W: D was speeding, W dies… Trial #2 – can the plaintiff offer the testimony? YES>…W is unavailable, T was given in a prior trial, and it was the same or similar motive. There are some court proceedings, where there is no opportunity to have the testimony developed. THIS is especially found in a GRAND JURY proceeding…thus a criminal defendant never has the opportunity to develop the testimony. Horne v. Owens-corning Fiberglas Corp. – Here the court allowed a P2 to use the testimony of a deceased expert. The court held that the injuries were similar because the toxin was the exact same. But there are 2 requirements in the rule…either the same party or a predecsseor or that the previous party had a similar motive to develop the testimony. 10-66 – 1. NO, grand jury is not allowed! Not sufficient opportunity to develop the testimony! 10-67 – 1. he is not unavailable, so he had just changed his story. So instead you could use it as impeachment…Prior inconsistent statements 801d1a – if prior statement was given as truth… 2. First, you could offer to refresh his memory…so you could probably satisfy the memory as being refreshed. If he actually cannot remember…then you could probably get the prior testimony. 3. 10-68 – 1. NO, because it is a grand jury…but there is a forfeiture, if the defendant is shown to have murdered the witness…then hearsay will be allowed. 2. Grand jury, the defense is offering it against the government…where in the grand jury the government would have a chance to develop…was there a motive to develop, especially under immunity…this suggests that the witness is unreliable. 10-69 – Is wendy unavailable? Not the same parties? But similar circumstances. This is allowed 10-70 – Same motive, so should be ok. Dieter had a similar motive, to develop the testimony. since Fred would have had the opportunity to develop the testimony in the Criminal case, then the Civil case, then it is usually going to be admissible. 10-71 – NO – is there an opporuntity for cross – not usually in a guilty plee…guilty plee, where the witness may be under oath, but there is no opportunity to develop the testimony, so it will not come in under former testimony. - 804(b)2 – must be unavailable, and in Federal must be a homicide or any civil case…IN CA< there is no limitation for a dying declaration. 1. unavailable 2. homicide or civil case 3. D must believe that death is imminent (must show that the D believed that all hope was gone) 4. Statement must discuss or discuss the circumstances concerning the impending death. Declarant need only believe at that time that he or she is making the statement that he or she is dying. The statement however, must concern the cause or circumstances of the supposed impending death…is only available in homicide or civil cases. 10-72 – only if she believed that she was going to immediately die… - did she know that her husband did poison? There is some personal knowledge 10-73 – no – not for robbery, only for homicide. – - was this an excited occurrence though, to let the statement in. (803(2)) 10-74 – if he thinks he is going to die, then yes….here he thinks he is fixable, so death is not imminent. 10-75 – if it is for homicide then yes, if for the injuries, then no. 10-76 – No, he does not believe that he is in immediate danger of being killed…so cant use 804(b)2 – 804(b)3 – statements against interest are different from part admissions in 3 ways 1. require the declarant to be unavailable to testify 2. do not have to have been made by parties or their agents 3. must have been against the declarant’s pecuniary, proprietary, civil or penal interest at the time of utterance. (CA, can be against your social interest) 4. would not make the statement unless the statement was true 5. if the defendant uses to exculpate, it must corroborate. Williamson v. US> 1. confession that he “he transportated cocaine” 2. “it was williamson’s cocaine” – is against his interest, but only to the action that it implicates him in a conspiracy…but it also is implicating Williamson, so it may not be against his interst, but against Williamson’s interest (as O’Connor said)…(he changed his story, and he is trying to save his own skin, by implicating someone else) 10-77 – , he is unavailable, but it is not against his interest…So maybenot 804b3 – 10-78 – no, what interest does he have in these statements? 10-79 – only if she is unavailable…this is against her interest, (but maybe its not against her interest, since she was leaving forever, maybe she would make the statement even if it was not true, since she would be gone)… 10-80 – harry is unavailable (assume he pleads the 5 th)…certainly this is against his interest, but is it truthful, to boast in jail? 10-81 – I don’t think so, because they are not against interest 10-82 – is this agsint his interest? (is this a Williamson issue?) what is the context…this sounds like selfdefense, maybe this is a self serving statement… 10-83 – he seems like the person who is not likely to be believeable…(seems like a Williamson) 1. Wally’s interest do not go against…so not admissible (this would be a party omission) 2. the statement may be admissible but may lack the same reliability…you would have to prove that Willie was unavailable, you must have some sort of corrboration, where the defendant is using it to exculpate. 804 (b) (4) – family history 1. unavailable 2. family history/pedigree of Declarant or close associate 3. facts only. 10-84 – True – you have no personal knowledge of your day of birth… There are 2 out of court statements, mom – to sister, sister to witness…both are covered under 804b4 10-85 – 1. we know what Shawn’s intent was…so use 803(3)…but there is a reliability issue. (check Hillman case) 2. admissible, Susan is the declarant, this is a present sense impression 803(1)… 3. If this is offered by a party opponent (if offered by prosecution) if offered by defendant, it gives an alibi…this is a statement of future intent 803(3). 4. admissible under medical diagnosis 10-86 – 1. only if she under 804(b)(2) – if she believed she was immediately going to die. - or you could find it under an excited utterance…but this is a speculaltive statement, she does not have personal knowledge…so this will not fit under an excited utterance. - “my hands are tingling” 803(3) - present sense would be admissible. 10-87 – 1. admissible…business records. 2. admissible…business records 3. not admissible… 4. admissible…public records 5. admissible…803(8c)…can come in, during a civil case, just not during a criminal case because it was taken by a police officer. 10-88 – No, not admissible from grand jury, if there was not ability to cross, or play the testimony, then not admissible 10-89 – 1. this is inadmissible hearsay….?????dont understand. 10-90 – this appears to be a statement against interest 804(b)(3) – as to whether he would make the statement unless it was true??? This will not come in, unless it is corroborated…thus may not come in here. 10-91 – not by the prosecution, but it could be offered by the defense, if there was a motive to develop the testimony. 805, 806 – - issue of double hearsay, anytime a piece of paper comes in (you have double hearsay) 806 – impeachment by prior inconsistent statement 10-92 – using 805. - we have a civil trial we have 803(8) – - is this an admission by a party opponent 801(d)(2)(d) would probably cover all the parties. yes. Seems like this would be the kind of thing that is reliable…people don’t just lose hairbrushes, and talk about it, unless it is true, it has reliability. 10-93 – 1. yes, rule 806 – is attacking the reliability and credibility of the declarant. 10-94 - ? 10-95 – 1. this is relevant background, and is not hearsay, it is in court statements 2. if it is being offered for the truth that he does not have an alcohol problem, then it is hearsay, (reputation in the community…) 3. hearsay – not admissible 4. not hearsay – incourt testimony…based on personal knowledge. 5. jones’ statement that he had a hip problem is hearsay, if it is backward looking, then it wont come in, if he is present sense telling that he has this then 803(3) could have it come in. 6. the COA is for defamation, you are not offering the letter to prove the truth, just important that the statement was made. 7. reliable? Not what he was going to do 8. admissible 9.reliable? not what he was going to do. 10. 11. 12. hearsay, is this a party omission? This is an adopted admission by silence… The 6th amendment says that in all CRIMINAL cases, then the person testifying on the stand must be in court. This right is only possessed by the accused, thus the confrontation clause will not be an issue if the defendant wants to get in evidence against the government…only when it is evidence against a criminal defendant. Maryland v. Craig – What is the problem with a child testifying in court. 1. psychological trauma 2. children will just stop talking… what are the safeguards that are in place – 1. how does the court determine if there is a court procedure to see if there is an interest that outweights the face to face confrontation. 2. a 3. the testimony is transmitted into the court room. So the jury has the opportunity to see the demeanor of the child. Bruton v. United States – Burton and Evans are tried for a postal robbery…Burton said that he and Evans did commit the crime, in a post arrest comment… 1. here you cant cross examine the person (he can plead the 5 th) 2. and this is a post arrest statement, made by 1 person, that he wants to minimize his culpability, by pointing the finger at other persons…thus the issue of cross examination is a big issue. Evan’s conviction was defective under the 5 th, and he was retired and acquitted…but bruton was still guilty under the confession that was not allowed… …you cannot admit a co-defendant admission, and the have a limiting instruction to the jury to dimiss the statement, buecea confessions are really powerful evidence, and it is impossible for a jury to forget a codefendants admission… Confrontation clause does not limit hearsay, it only limits testimonial hearsay… Crawford case – says that we need to see if there is testimonial hearsay. What is the confrontation clause intended to protect…when people were going to use testimonial evidence… Problems pg 302 – 11-1 – 1. under the craford test, unavailability is not the issue, the issue is whether it is testimonial…this is unlikely to be found testimonial, but very few would believe that this would be admissible at a trial… Thus we don’t have a confrontation problem… 3. Admissible against Eeney…but inadmissible against meany and miney, because it does not satisfy the co-conspirator…this is found in the BRUTON case, thus you cannot offer the statement against anyone if they are tried together. So to get it in against Eeney, you would have separate trial or separate jury. 11-2 – 1. was there cross examination in the preliminary? NO…was there any opportunity…Maybe, but it was not done…furthermore, the motivation to cross in a preliminary is very low…they will not do it thoroughly… 11-3 – 1. the statement to the mother – under Crawford…this is different than the ex:parte pre-trial admissions…this is a statement being made to her mother…then there is a good argument that the confrontation clause will not bar the statement. 2. the statement to the doctor – this is more towards diagnosis…can this be admitted under a statement under diagnosis…does a 5 year old appreciate the accuracy in making statements to a doctor…but this is probably valid under the residual clause. This is more testimonial than the statement to the mother…because the doctor is asking questions 11-4 – Is this an excited utterance…or is it a current state sense Crawford. 1. is it testimonial…(if it is not testimonial then you can stop this test) 2. is the witness available…and were they cross examined. Here this looks like an excited or a present sense utterance…Crawford is clear that the confrontation clause is about reliability, but it is so the defendant has the right to cross the declarant. 11-5 – Is this permissible? NO this is testimonial and is made post arrest…under Bruton, because they are being jointly tried, then these cannot come in. 11-6 – The only way this evidence will come in, is if the witness testifies in court, and is subject to cross…thus under Crawford, she would be able to be crossed in court…and there is no Crawford issue. 11-7 – if a prior deposition, there must at least an apportunity to cross…in Maryland v. Craig…then the jury must be able to see her, and she must be able to be crossed. Confrontation clause – Crawford! – read and understand the rules here for Crawford… Analyze an out of court statement in a criminal case… -this is the right of a criminal defendant. 1. is this admissible hearsay? If it is a prior statement, inconsistent statement, consistent statement (801d1) – (but must be in court…thus confrontation will not be an issue) confrontation is only an issue where declarant is not testifying and subject to cross. 2. is it testimonial hearsay? a. prior testiomony in court, grand jury testimony, preliminary hearing, post arrest interrogations preceeded by a Miranda…we don’t know about 911 calls, dying declarations, spontaneous are not yet known to be testimonial. 3. if it is testimonial…IS the witness unavailable? If the witness is available they must be called. 4. did the defendant have a prior opportunity to cross examine the declarant on this statement that is being offered…former trial testimony is the best example. a. if no prior opportunity to cross, then the admissible hearsay can not be admitted. Problem 6-1 – Is this the standard practice of the RR? 6-2 – Does not look like a remedial measure was taken. This could be impeachment if he testifies. Thus 407 does not exclude it, so the evidence would be properly included 6-3 – This change is not admissible in Federal rules. IN CA it would be allowed. 6-4 – 6-5 – This is not joes subsequent remedial measure. What we don’t want is for someone to be punished for doing the prudent thing…instead it was Bonnie…thus we do not have a 407 ground to exclude. THIS is hearsay…so is will not be admissible 6-6Is this a subsequent remedial measure. 408 – It excludes offers to settles the case to prove liability for the claim. It also excludes the discussions during the attempt to settle the claim….we want to promote settlements, thus we don’t want to discourage people from truthfully discussing the liabilities of the parties. 409 – Offers to pay medical expenses are not available to be offered to show culpability. Only the offer to pay is inadmissible, but other statements made around the offer to pay…even where there is no dispute to liability may be included. 410 – 1. Gulity plea that is withdrawn 2. Nolo Plea is not an admission 3. Rule 11 statements Re. the guilty plea or nolo plea 4. Plea discussions with the prosecutor when the plea fails. What if Defense attorney calls and asks to bargain… And the Defense shows up and there were FBI agents there giving Miranda rights…and then there were incriminating statements… 6-7 – is the dispute to the amount? Is there any dispute as to the validity? 408 specifically requires that there is a dispute towards the amount or validity…since there is none here, then 408 does not protect. 6-8 - \ Here there is an offer to pay medical expenses…409 is more specific…however 409 is narrow…it will exclude the offer to pay, but will exclude any other statements surrounding the offer….thus then does 408 cover the rest? NO, there is no dispute yet…thus 408 will not cover anything. 6-9 – 1. NO under 408…there is a dispute 2. yes, these would be admissible, because they would have otherwise been discoverable. 3. NO 4. NO…408 not admissible, because that exclusion is a double negative exclusion. If the discussions between a party and a government, then they may be admissible, subject to 403 6-10 6-11 – 1. look at 410 2. 410 does not prohibit this…it permits any statement by guilty plea, that is not withdrawn… 3. 410 protects the defendant, but does not bar the defendant from statements made at the negotiation…but these statements are hearsay…and if the statements were allowed, then it would essentially open the door to the prosecution offering as much of the negotiation statements not misleading. 4. are the prosecutors statements admissible? The rule is to protect the defendant… 6-12 – 1. under the new rule, these statements would be prohibited. 2. guilty plea not withdrawn can be used. 6-13 – this is not related to the original case… 6-14 – 1. This is inadmissible character evidence 2. This is being offered to show that he was careful, so is it admissible under 411…NO…this bears upon his liability, thus 411 prohibits it. 3. 6-15 – NO…this seems like the reason for 411 6-16 – This is offered to show prejudice…this is not to show liability or fault, instead to show bias…this is admissible evidence. Character evidence – 404 – Character evidence can be used to impeach – Reputation, opinion… Except: 1. character of the accused – a defendant in a criminal case. 2. character of alleged victim – the prosecution can offer the same trait of character of the accused… Propensity evidence – you are using evidence of a persons character trait, to show that he had a propensity to act in a particular tway, to make it more likely that he acted in a particular way in this partucklar situation. Murder trial – if the person has a violent past, then it tends to show that he behaved violently on this particular occasion, 404a – evidence is not admissidle for the the purpose of proving action in conformity therewith on a particular occasion…we will not admit evidence of a persons character to act in a particular way… 2 exceptions are limited to CRIMINAL CASES – 1. if the defendant puts a trait of the victim in disupute, then the prosectution can rebut by saying the victim was not like that, or show that the defendant had that same character trait. Defense – “I have the opinion that he is non-violent” On cross examination, you may ask about specific acts…”were you aware that he hit his wife 2 times” Pg 68 5-11. No. civil case – 2. No. D has not opened the door. 3. y, to being aware of the reputation, not to the specific acts 4. y to being aware, not to the specific acts. 5. Y. you can be questioned about specific acts, because the specific acts are being used to attack the basis of the opinion. If the charges were dropped…Y she still can. 6. Y 5-2 – 1. NO…this is not a person, the character evidence limitation applies to Humans. 5-3 – 1. NO – the D has not opened the door…and it is a specific act. 2. Y – D can be his own character witness… 3. N0 – these are specific acts. Not reputation or opinion… 5-4 – 1. specific acts 2. yes 3. no, specific act. In a criminal case…only opinion 4. in a civil case No. in a criminal case. opinion only. 5-5 – 1. this is an opinion offered by the prosecution…NO…and this character is “obstruction of justice”…that is more like a specific act. 5-6 – Yes 5-7 – 1. this is a specific act. And it is inadmissible character (only relevant to show he would beat up someone else) 2. this is admissible to form 5-8 – 1. yes. 2. 1. yes. 2. if this was cross examination then yes. You cant call another witness and get in specific acts on those specific acts….This is admissible in CA> 5-9 – The defendant offerd that Godzilla began the scuffle…under 404a2 – you can offer in a homicide case, and if the D offeres any evidence that the victim was the first aggressor…the prosecution can now rebut that by using any evidence to show that the victim was peaceful…not honesty 5-10 1. no, not yet. 2. peaceful not truthful 3. Y, because the D has opened the door. 4. 5. impermissible. 5-11 – 1. No, has not opened the door, and it is specific acts… 2. No, this is specific act…and it is not relevant. Propensity – limited by 404 – only in criminal, not allowed in civil Character evidence, when itself is at issue, is not limited. Most often at issue in civil cases – 5-12 – everything is admissible – Specific acts, and opinion are both admissible, because character is at issue. 5-13 – 1. admitted, because this tends to show he is not lazy – 2. 5-14 – 1. 2. is this inconsistent with breaking the law…yes. Then this should be admissible 3. 404a – Propensity – motive, opportuinity, intent, preparation of a plan, knowledge, identity, absence of mistake or accident. 404b – Consider 403 – does the evidence outweight the probative value. 5-15 – Has the defendant been is custody? Then the materials would have been used by others. It is probative that he has the equipment commonly used for the distribution of the narcotics. Is this propensity evidence…he has the propensity. But the possession of these does not show propensity…this evidence shows more of a plan or scheme to engage in the distribution, which is a permissible use… and a 403 will not work to dismiss the evidence. 5-16 – High probative value that you tried to kill your best witness….will this be a 403 issue under the extortion case? probably… 5-17 – This goes to show the identity…if the question is if Lester was the molestor, then it may show the identity. The jury should consider, only if by a preponderance of evidence that lester molested the children in the 2 prior cases. 5-18 – Intent---404b – Defendant has raised duress, so he has raised his intent to commit this crime because of his defense of duress…so it calls into question if he has an inclination to commit this defense. Intent is only proper when the defendant had a pre-existing defense. (duress or entrapment) raise to issue whether the defendant would commit this crime absent the duress or entrapment….thus most courts would believe the door open to attack his credibility. 5-19 – She has raised the defense of duress…you can argue that they have robbed together before, and you would not fire the rifle to help the captor escape. 5-20How are the 3 prior arrests relevant? Does it appear that her identity is in issue? Here it goes to her motive to not like the officer…so motive can be used to show that a person intentionally acted with a bad purpose. Thus this could have been a deliberate attempt to commit a crime…because he has arrested her 3 previous times. So this should be a limiting instruction…ie: ignore the evidence for the fact that she was arrested 3 times for crimes… 5-21 – If he had marijuana in the past, it goes to show that he does know what marijuana looks like…so this looks like a double charge…a prosecutor dropped, thus that means that the prosecutor did not even have probable cause… 5-22How is it relevant – to show that it was absence of mistake…would you admit it in case in chief…you don’t know whether it is actually a mistake, but 5-23 – this shows preparation to show a plan and a preparation to carry out the plan. 5-24 – this can probably go to the identity, or intent. 5-25 – this looks like propensity evidence. So it is probably not admissible. 3. the defendant would have to have a limiting instructions…but this still seems improper 5-26 – This looks like absence of mistake (but not allowed in the prosecution case-in-chief) this counters the discussion that it was a mistake… 2. 5-27 – 5-28 – If it is relevant to proving the case, then it can be admissible. 5-29 – If it is a conspiracy charge, the later sale does not appear to come it, because it is distinct from the conspiracy. Could it be shown for access or intent? 5-30 – 1. prosecution offers PROPENSITY evidence, which is not allowed in the prosecution case-in-chief…it can only be in cross, 2. dowling case…even if a person has been aquited, that act can still be offered… 3. preponderance of evidence, Huddleson case. 5-31 – 5-321. Character is at evidence because it is a defamation case. 2. yes 3. admissible 4. 5. shows she is a thief 6. goes to her competence, but there are other reasons why this could have happened, it is not very probatice Habit evidence – 406 – This is simple conduct, that you do without thinking, it is the type of conduct that is semi-automatic. 5-34 – 5-35 5-36 Rape shield statute – Rule 412 – this can also apply in civil cases. Here we find that there is victim character, so you want to look at the evidence that is admissible against the victim 2 specific prohibitions that would be allowed unded 404, but are barred by 412 1. D is prohibited from offering evidence of the victims past sexual conduct 2. the D is prohibited from offering any evidence of the victims free sexual disposition. Rape victims don’t want their entire past sexual history brought into view, but there are 3 exceptions 1. if the exclusion of the evidence would violate the constitutional rights of the defendant then you can admit past evidence of prior sexual history or sexual disposition. 2. where the issue is consent, the defendant may offer evidence of the victim’s prior sexual behavior with this defendant. 3. defense of identity, if that is the defense that it was not the defendant, then the victims sexual conduct with another person, at or at a similar time of the alleged rape, then that sexual act is available to identify the source of injuries or semen on the woman. 413 a. in a criminal case in which the D is accused of an offense of sexual assault, evidence of the D’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. b. c. d. 414 – 6-18 – 1. yes this is relevant 2. yes, maybe they had a fights, so she wanted to “get even” 3. this is likely kept out 6-19 – 1. not admitted generally 2. not admissible 3. 6-20 – Under rule 414 – this should come in, this is the exact point of the rule. You can still make the argument that under 403 that it is inadmissible, but this will generally be fruitless. 6-21 – 1. subsequent remedial measure – this is excluded – 2. this is character evidence of propensity (this is a civil case, they are in the wrong form (specific incidences), wrong party is offering it even if it was a crimininal case. 3. reputation, in a civil case…still wrong party offering the evidence. 4. NO. 409 – statements offered to pay medical expenses 5. this is out…on character, (this is also hearsay, and address relevancy 6. character evidence, specific act, inadmissible 7. res gestae, part of the same act, so it is admissible to explain the conduct before or the conduct after. 8. civil case, inadmissible 6-22 – 1. narrative 2. personal knowledge issue (hearsay), substance – this is a civil case…propensity is not allowed, unless the cab company is being sued for keeping a negligent driver, then this can come in as reputation of the driver. 3. propensity, in a civil trial? Or it may be habit (I always drive slowly), 4. part is an offer to pay medical expenses…out under 409, the rest is 1. admission by party opponent, which gets around the hearsay. Further is there any dispute at to the validity or amount of the claim, NO< so 408 will not keep the rest out. 5. Now we have a dispute, 408, should keep this out, this is an offer to settle. 6. 411, proof of insurance is not admissible to prove liability or fault. Rule 611 – A B C – leading questions should not be used on direct…but leading questions may be used on cross-examination Rule 615 – the court shall order witnesses excluded from the court room 1. cannot exclude a party who is a natural person 2. an officer or employee of a party which is not a natural person designated as its representative 3. a person whose presence is shown by a party to be essential to the presentation of the party’s cause (expert witness) 4. a person authorized by statute to be preset. Problem 7-1 1. leading 2. leading 3. overruled 4. compound question, you can only ask 1 question at a time 5. asked and answered 6. narrative 7-2 – 1. assuming facts not yet in evidence, or No foundation 2. overruled 3. leading 4. calls for speculation 5. overruled 6. 7-3 – 1. beyond the scope of direct 2. beyond the scope of direct, irrelevant, 3. beyond the scope 7-4 – 1. overruled – impeaching, attacking the credibility of the witness. Testimonial capacity of the witness Considers several things - witnesses ability to perceive - recall memory - communication – have they done anything today that would affect their testimony, (drugs or alcohol, mental issues, etc.) Does the witness have a Motive – - bias – what is the witness’s relationship, how do they know eachother, family, friends, college, highschool…etc. interest, does the witness have an interest in the outcome of the case. is there future employment, benefit, benefit of a friend or family…etc. prejudice Character – Governed by the rules 1. attack by prior convictions (609) 2. prior untruthful acts (608) 3. charater , calling a witness to call the witness a liar. Inconsistencies 1. Prior inconsistent statement 2. contradiction 609(a)(2) – Crimes - dishonesty/falsity 610 – evidence of beliefs of a witness, is not available to show that by nature the witnesses credibility. But, if both the witness and D are members of the same small church, temple…etc., then that can be used (membership in a group, which can affect bias or prejudice) from religious beliefs, which cannot be used to attack the credibility of the Witness. 7-5 – 1. is it relevant…as long as it is impeachment, then it is relavant. 2. probably motive, this affects the interest of the party. 3. 609(a)(2) – this would be impeachment by character 4. character – prior acts 5. testimonial capacity, the ability to recall 6. inconsistencies, prior inconsistent statement. 7-6 – 1. this is an inconsistency, impeachment by contradiction 2. contradiction, there is a limitation…this should have some relevancy towards the case, 3. contradicting another witness, it is not up to this witnesses ability to conclude that another witness was wrong, instead the question should have been, “do you know if the deposit was deposited on march 4 th?” 7-7 – 1. this is on a preliminary matter, the form is incorrect being leading and the witness has not shown hostility yet, this is an impeachment of motive, showing bias towards 2. 3. she is facing a felony charge, how is this relevant to the case…would this lead her to have a motive to testify in a certain way, this would be improper as to 609, but if it is for pleasing the prosecutor as a deal to lower charge 4. 5. proper, this goes to the motive of the witness 7-8 – 1. there is bias, that the witness was a member of the same gang, could be found that he was helping his friend, But could this also go against an odious group membership, of unfairly impeaching the witness to show his membership… 7-9 – Is he prejudiced against her? Rule 609 – A2 – applies to all witnesses – any evidence shall be admitted if it involved dishonesty or false statement, regardless of the punishment. 609 (b) - When looing at the conviction, Is the conviction 1. older than 10 years 2. justice will be served by using the evidence. 3. written notice 609 c – If the convicion has been pardoned, annulment, certificate of rehabilitation, then the prior convictions are inadmissible, if you have one of 2 things 1. there is no subsequent felony conviction, if there is a felony, then you can use the pardoned offense too 2. if the person has been pardoned in an official finding of innocence. 609 d – Evidence of jubenile adjudications is generally not admissible under this rule. The court may, however in a criminal case, allow evidence of a jub. Adjudication of a witness other tan the accused if conviction of the offense would be 1. admissible to attack the credibility of an adult 2. the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. 609 e – Pendancy of an appeal does not make the evidence of conviction inadmissible. CA RULES No distinction between crimes and crimes of dishonesty, No misdemeanor crimes can be admitted. 7-10 – 1. these are her convictions, not his, and this is propensity evidence…inadmissible. 2. 7-12 – 1. this is a felony, but it is a criminal trial, does this weigh into his truthfulness? 2. misdemeanor can only come in for crime of dishonesty 3. wont come in ever unless it is a criminal defendant, this can only come in, if there is a witness other than the defendant and the court decides that it is probative, further it is beyond the 10 year limit, and thus they must be substantially more probative! 4. the 10 year, is date of release…but he was not incarcerated for the entire part, so then there is no way this will get in. 5. 608 – character for veracity – (a) reputation and opinion – only trait at issue is truthfulness or honesty of witness. But you cannot call a good character witness, unless the character has been attacked. (b) specific acts – no extrinsic evidence (no CA rule that mirrors this) 613 – prior inconsistent statements – (b) – 7-13 – 1. prior acts – impeachment brings in impermissible evidence, 608 only allows to ask about the untruthful act (lying on the income-tax statement) 2. 7-14 – 1. yes. 2. is there evidence that he has eaten some of these chips, Ask the witness if he has taken anything that has affected his ability to testify in court today. 3. both are permissible, this may affect his perception and memory. 7-15 – 1. this is a prior inconsistent statement, so it is admissible – Refreshing witnesses memory – 1. the witness must say something to the effect that I don’t remember – 2. witness can then read a statement, etc. and then the witness must testify from memory, they may not read off the paper…etc. the paper cannot go into evidence, but it can only go into evidence by the opposing counsel. 3. if they do not remember, even after they see the paper…then, if the statement is the witnesses own statement taken near the time of the action, then 803(5) – to offer the past recorded recollection into evidence. 7-16 – 1. because they are not being admitted into evidence, they don’t have to be authenticated. 2. yes, anything can be used to refresh the memory. 3. 7-17 – 1. this is impeachement by contradiction. 2. not a conviction, and it is improper in form, you cant ask about an arrest. Furthermore this is not an act of dishonesty. 3. OK, this is an act of dishonesty. 7-18 – 1. this is a prior bad act, not of honesty, so not 608…in this case though the D was the one who got punched, so you could look at whether there was bias. 2. her competence as an incomtepent surgeon. Bob is testifying as a character witness under 405 (not criminal) this is his opinion…so how to challenge on cross, ask about specific prior acts that are going against his opinion. 3. impeachement on prior inconsistent statement…this is proper. 4. this is a prior dishonest act, 608 will allow this to come in, this bears on the issue of whether the witness is truthful 7-19 – 1. this would contradict his opinion, if the witness if he said different, then this contradicts, if it is similar, then can you bring in the book? You can only offer extrinsic evidence if it is non-collateral to the case. Contradiction w/evidence….they are OK if non-collateral 1. facts in issue 2. additional impeachement, ie: bias, prior conviction. a. You are looking to see if it does more than just contradict the witness, and if it is relevant to prove a fact in the case, or another way of impeaching…then you can use it. 2…this is not a crime of dishonesty…not 608…can it come in under 609 – and is it a felony? If it is a felony, then the test is 403 – admissible unless the probative value is substantially outweighed to be unfairly prejudicial to the party…. 3…here 608b – this is a prior dishonest act. There is an issue to the form of the question, it is asking about sometihgn that is improper (his being fired) so you just ask whether had had forged medical records…also there is a personal knowledge issue… 7-20 – 1. this is more than 10 years ago, so this is inadmissible 2. convictions are non-collateral, so the document is admissible to impeach by the conviction, and to contradict. 3. yes they can ask, is this collateral or non-colalteral? This is non-collateral since it may affect a fact at issue 4. this is not a prior inconsistent statement, so this is contradiction by another witness…this is clearly a collateral point, so it is not allowed. 5. this is a prior inconsistent statement. 6. this should go to some sort of bias, this is never collateral, so this contradicts and proves bias, so this second witness would be permissible. 7-21 – 1. this is contradiction, and seems to be going to something at issue 2. 3 it is permissible to call Sheila, because it is relevant because he has been charged with perjury.. 7-22 – 7-23 – Is he testifying in favor of his buddy…then he calls an officer to testify that the witness and D were in the same gang…the focus of that cross was bias, the police officer contradicts – is this doing anything else but contradict, it shows not just contradiction, but continues to show bias and possibly motive for members to act in a certain way. The contradiction alone is not enough, you need these other actions to bring in the officer. 7-24 – this is 608a – impeachement by character eveidence 2. in the surrebuttal, Frank is called, this is permissible rehabilitiation evidence, which is also allowed under 608a – 7-25 – 7-26 – 1. 7-281. this is on direct, this is not admissible because it is old 2. she has been charged with counterfeiting…this is character, the prosecutor cannot get into character unless the D had opened the door, but this would be the wrong form – must be reputation, not acts. 3. this is Ok for contradiction 4. this goes to motive, bias, interest… 5. misdeameanor, does it bear upon veracity? 6. ? Is it a crime of dishonesty? is this a felony? Is it the defendant? look at 403, is the evidence more probative than prejudicial. 7. Specific act to character…is this an act of dishonesty? Will not come in 8. this will bear on her testimony, whether she can properly remember the facts, this bears on the testimonial capacity of the witness. 9. if this is contradictory then it is for impeachement. 7-29 1. impermissible character, wrong form…also what is it relevant for? 2. Is this being offered to show bias/ 3. this other witness, would have to be non-collateral, it would have to contradict and have another point. 4. wrong form, you cant ask if he was indicted, you could be asked if you did embezzle from your employer. 7-30 – 1. reasonable 2. this is an omission, and if the omission is significant, it makes it significant. 3. this is non-collateral, prior convictions are subject to the 609 limitations… 7-31 – 1..a – this looks leading. b. ok c. 7-32 – Rule 605 – a judge is an incompetent witness, and may not be a witness in a case. No attorney should ever allow a judge to testify, the judge should recuse them selves if they have personal knownlwedge. -Commenting on evidence is not testifying Jurors Jurors are incompetent to testify in-front in the jury, in a case which they are seated as a juror. This does not immunize the juror from testifying about the misconduct of the jury, but does prevent them from testifying about the case at hand. 8-1 – Is this hearsay? She is being called by the defense… 8-2 – she cant testify in federal court…in CA if nobody objects she can testify. 8-3 – Judge? Cant testify Even if no objection, but in CA they can appear if no objection Can the bailiff testify? No problem Maybe This will be a thouroughly impeachable witness, but it able to testify 8-4 – This is 606a – they cant testify 8-5 – rule 604 – an interpreter must be an expert. Because he failed 101, he is probably not an expert, then they must make an oath of a true and accurate representation 8-6 – 8-7 – The dead man statute – …if it is a written contract, then the parol evidence and the best evidence rule would prohibit this 8-88-9 – 8-10 – Is he using any drugs today, or using any drugs during that would fog his memory, or on the day at issue, 8-11- Age 4, 1. what must occur? She needs to be able to identify a lie from the truth 2. yes, every witness is credible, but she could then later be impeached…although there is an issue as to her personal knowledge. 3. still could, just this would go against her credibility. 8-12 - if he is certified, then the person is an expert and this is valid. 8-13 – this is a dead man issue – Rule 902 – certain types of evidence do not require that you prove what type of evidence it is…it is admissible. Generally these are documents which have a seal (official stamp), or certified copy. 13-1 – 1. depends on if it was to show a person or a business…is there any voice recognition, if you recognize the voice, then you can testify to that you recognize that voice. The rules even include after acquired familiarity, then that works. Just use common sense. 2. b2…non-expert handwriting. For example someone who sees the writing all the time. You could call a handwriting expert as well…or you can have a known handwriting example from the person, and then you offer the signature and let the jury compare it…Jurors are competent to be a non-expert handwriting expert. 3. self authenticating 4. self authenticating 5. anyone can authenticate this 6. the person who drew the blueprint…or 13-2 – 1. anyone who was at the scene of the accident…foundation is, were you at the scene of the accident 2. get around the hearsay rule…get in under past recollection recorded…then how to get this authenticated. 3. ask the doctor…but it could come in as a business records…the custodian of records could authenticate it. 4. police officer, or 5. self-authenticating…how do you tie this to being found in the car. So you would need the officer who recovered it, to testify that, that is where he found the can…might be in police report. 13-31. ads are self-authentication from the newspaper. 2. 13-4 – what do you do with a tape recording, 13-5 – Are they notorized Are they a commercial paper to be self-authentication Signature Rules 1001 – 1008 13-8 – 1. no 2. no 3.no, issue is not what is in the documents 13-9 – Duplicate is admissible 13-10 13-11 13-12 13-13 13-14The fact that the confession was in writing does not necessarily do any thing, if the question were asked “what were the contents of the confession that was signed” then that would need the best evidence rule. 13-15 – he cant testify as to the content of the photo…the exhibit speaks for itself 13-16 – 1. this is personal knowledge. 2. needs to show it 3. yes 4. as long as not intentional, a copy would be fine. 13-17 – 1. this is personal knowledge, so it is fine 13-18 – 1. Lay and expert opinions Lay opinion – Rule 701 1. rationally based on perception 2. helpful 3. not scientific, technical or based on specialized knowledge Expert opinion 1. Helpful 2. sufficient basis 3. product of reliable methods 4. relevant 9-1 – 1. this is questionable…why did the witness say why the tiles were slippery? There are no other facts…is there personal knowledge that the tiles were slippery… 2. this does not matter…this is sill an opinion 9-2 – This is speculation…”what would have happened If”…witnesses cannot testify to speculation. 9-3 – 1. how fast is ok. 2. plane…most people don’t have this experience. 3. smell is only allowable if she has experience with this smell…this might be specialized knowledge. a. yes this is fine. b. yes, typically fine c. yes this is fine d. his disoriented would be fine…but “without sleep”seems too much e. NO 9-4 – 1. most people can tell when there is a wink. 2. not allowed, this is speculation 3. probably not common knowledge to decide what smell that is…you need to lay more foundation…”are you familiar with the smell of XYZ cologne?” 9-5 – …should be ok, looks like something one could testify to 9-61. This kind of opinion is allowed in many courts. 2. is there sufficient familiarity with this person? Probably not 9-7 – 1. Lay handwriting is allowed. 2. here you need to allow the jury to decide if this is sufficient for finding a basis. Expert witnesses – Once qualified as an expert, the witness is limited to testifying to things which they are qualified to testify as and expert. Testimony must be helpful, based on sufficient facts or data, must be reliable, must be relevant. 703 – expert can be based on facts or data, of facts given at trial, or have the expert listen to the testimony, or the expert can give based on facts learned before the trial…or the expert can be asked based on hypothetical facts. Basis for the expert opinion can be given on facts not admissible in the trial. Sanity in California – 870a – by an acquaintance…or by 800, or 801 (expert witnesses) Rule 705 – how to elicit expert testimony…expert can just come out and give the opinion. Court has the power to bring in its own expert witness. 9-8 – 1. this goes towards experience 2. this goes to experience or knowledge or expert 3. See advisory committee notes on rule 702 – Daubert case – 1. If the testimony is based on sufficient facts or data 2. the testimony is the product of reliable scientific methods. And the witness is an expert. 3. witness has reliably applied the principles to the facts of the case has the expert knowledge had peer review and publication has the theory received general acceptability in the scientific community. Relying on an expert the judge will have 2 function 1. determine if the expert has sufficient qualificeaitons to be an expert a. define scope of expertise 2. did the expert use reliable principles in determining the opinions. In CA… LOOK to see if it has 1. qualification of experts 2. Reliability of principles, methodology 3. Whether the “expert” is helpful. 9-15 – Sure 9-16 – Is she qualified to offer the opinion on ER surgery? 9-17 – He is an expert in securities…not in conspiracy, this is not where his expertise would fit. 9-18 – Criminal defendant – this is inadmissible under 704b – in CA this would not be the case, and would be admissible 9-19 – Civil trial – it is his brother…there is nothing that disqualifies this person, but it would have too much bias in the case…find a neutral expert. 9-20 – She is the EVP – is her ability to testify expert opinion…NO, this would be her own personal knowledge, so no need to make her an expert…you don’t need an expert to testify to this 9-21 – 9-22 – Does this have a reliable principle or methodology 9-23 – This is not a DQ, just look for someone who might be a little more neutral…as long as they are qualified under 702, they can be an expert…but serioulsly get another expert. 9-24 – 9-25 – 1. yes 2. check 704b – 3. 9-26 – Is this a proper expert? This should be ok. 9-27 – The fact that this is inadmissible hearsay…but this could be a present sense impression… 9-28 – 1. 2. Experts can speculate – 3. this is ok for the expert to rely on inadmissible hearsay and inadmissible other types of evidence…there is the understanding that the expert can sift through reliable and unreliable matters 4. yes the court can participate 5. yes, 706 specifically provides that the court can call its own expert. Rule 501 – Shall be governed by the priniciples of common law, in the light of reason and experience. 1. 2. 3. 4. attorney privilege in criminal case – marital privilege (spousal privilege) spousal communication privilege psychotherapist privilege a. second tier i. national privilege ii. attorney work product in CA – the rules are entirely codified – if it is not in the code, it does not exist 1. privilege of an accused not to be called (930) 2. privilege against self incriminiation (940) 3. 950 – attorney client privilege 4. 970 – privilege not to testify against a spouse, or to be called by a party adverse to a spouse 5. 980 – confidential marital communications – 6. 990 – physician patient privilege 7. 1010 – psychotherapist privilege 8. 1020 – clergyman penitent privilege 9. 1035 – sexual assault victim privilege 10. 1037 – domestic violence victim privilege 11. 1040 – privilege not to disclose informers 12. 1050 – privilege for secret ballot votes 13. 1060 – trade secret privilege – 14. 1070 – qualified news man privilege to not reveal sources. Spousal testimonial – means married Precludes testimony (criminal – federal) Holder = testifying spouse Ends when marriage ends Some exceptions Spousal confidential communication Precludes testimony re communication made during mar. holder = party to communication survives marriage has exceptions 12-1 – 1. no, this is before marriage. 2. these are not communications… b. this is up to her, marriage or communication 3. this is not confidential, it involves the secretary. 4. No, becusae it survives the marriage. 5. he couldn’t assert the testimonial privilege, could she? No the exception would still apply, since the allegation that he hit her, would make her testimony important to the case. 6. if she actually helped, then the privilege does not apply. Attorney client – 1. confidential 2. between attorney and client 3. for the purpose of securing legal services. Must be acting as an attorney…if they are preparing your tax return, this is not them being an attorney. If you make a remark at a cocktail party did you 1. secure the services for representation…had not secured yet for legal services. 2. was it confidential….NO waiver – the holder of the privilege can waive the privilege. You can waive the privilege by disclosing in a document, things that are privileged. Exceptions to the privilege – If the attorney is consulted about committing a future crime or future fraud, that communication is not privileged. So what do you do if a client asks to represent in a past fraud… 12-2 – 1. no, she was seeking legal, and it was “confidential” 2. as long as she reasonably believed he was a lawyer. 3. might not be legal, instead it was business advice, thus it might not have been in lawyer services 4. yes. 5. 12-3 – 1. don’t ever take custody of any evidence of a crime from a client…If you take custody, you can examine the evidence, but after that, it is your duty to turn it over to the police. 2. 3. attorney work product 4. yes 5. Yes, this does not violate privilege of self incrimination 6. this is not privileged. 12-4- 1. this is not privileged, say she must decline representation. In happy hour then not confidential. 2. 3. Work product privilege – Any materials that represent the impressions, conclusions, opininons of legal theories, etc. for litigation etc. are privileged. Psychotherapist- patient privilege – 12-8 – NO. 12-9 – they should be, if she is necessary to the redetion of services – then it is privileged 12-10 – this is not privileged, just because they were talking about something of mutual interest, does not bring this to the treatement of diagnosis. 12-11Treatement of gunshot wounds, are so commonly because of criminal activity, thus they are not held under the privilege. If a patient is seeking treatement for a dangerous communicable diseases, the doctor-patient does not apply. 12-12 – If booth’s brother was necessary for the treatement, then his presence does not remove the privilege, if he is not necessary, then the presence then prevents the privilege from being recognized. Adjudicative facts – facts of the case. Legislative facts – beliefs that most people hold Rule 201 – B (1) – generally knon 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. 14-2 – This is judicial notice 14-3 – This may be true, but this is a legislative fact, not proper for judicial notice. 14-4 – Presumptions 1. Conclusive – basic fact, eg. Coal miner has black lungs, is conclusive that he is disabled 2. permissive – you may draw an inference, that e.g. if the pavement is wet, it rained… 3. rebuttable – presumption that arises based on the proof of certain facts (basic fact) - there is a presumption that if you leave a chattle with a bailor, and it is undamaged, when you pick it up it is damaged, you now have the rebuttable presumption, that any damage to the chattle with the bailor…occurred to the fault of the bailee. Now it is up to the bailee to prove that it was not his fault. In a criminal case, if 3 occupants in the car, then there is a presumption that the drugs are equally owned. But you cannot switch this burden, because you cannot have the defendant have to prove innocence. 14-12 – the only thing Kevin knows is he mailed it…so you create the rubuttable presumption in Kevin’s favor. This give Kevin the presumption so long as he gives the basic facts, address, stamped, mailed. But he does not have in his control, whether somebody in the company opened the letter. Then there must be credible evidence to the contrary…if that happens then the presumption drops out of the case. 14-13 – 1. the presumption is that the will is presumed revoked. The sal. Army would have to establish that this was revoked… 14-14 – Any credible evidence that would show that the child is not his, would make the presumption drop out. Final – Two things to always do on exam 1. Relevancy – a. Sometimes relevant for more than one purpose 2. if is witness is testifying a. do they have person knowledge b. check the hearsay issue 3. if a document a. authenticate! Phillip – 1. 1. relevance to the evidence 2. personal knowledge – a. character – opinion – specific acts are admissible when character is in issue i. see if it is proper in form, proper b. prior act 3. Hear say (what sue said) – not admissible – 2. 1. Relevancy – it bears on the relative fault in the accident – if Phil caused the accident, then there is no case 2. Xeroxed copies, are not good enough…this is not properly authenticated, so you would need an authenticating witness…probably not admissible 3. is it hearsay – being offered for TOTMA – exception…public records, as long as it is authenticated. 4. expert opinion issue – is this trustworthy? . . ..this police officer as to the speed, there is an issue as to the reliability of the expert opinion, thus this goes against 3. 1. relevance – 2. personal knowledge – is this an excited utterance – could the declarant perceive this? This will generally keep this type of excited utterance out. 3. hearsay – 4. 1. ATT wireless – is this relevant? This makes it look like he is talking at the time 2. authentication – this is a properly certified, thus it is self-authenticating 3. 4. relevant 5. personal knowledge 6. attorney client privilege – since it is a former attorney – Philip can assert the privilege, can this be overcome 7. hearsay – this is a verbal act – (so not hearsay), a. statement form larry to Harlan – could it be relevant as impeachment (probably not) – is it not true that philip made the offer.