Evidence Class Notes 01 by Jasonpet

VIEWS: 2,235 PAGES: 170

									1/9/2001 ON THE BOARD: Policies  1. Skeptical of jurors’ abilities 2. Promote accuracy 3. Promote efficiency 4. Allocate burdens 5. Protect substantive policies Jury Selection Opening Statement P’s Case-in-Chief D’s Case- in-Chief Rebuttal Cases Closing Argument Jury Instructions Direct Examination -- Proponent Cross-Examination -- Opponent Re-direct examinations -- Proponent Re-cross-examination -- Opponent Etc. Look at ADVISORY COMMITTEE NOTES!! Read the RULES first, then Advisory Committee notes and THEN the book I. Introduction A. Policies HELP decide if evid is admissible or not where it ISN’T clear cut!! 1. Want to CONTROL what jurors are exposed to (i) Ex – Unfairly prejudicial evidence 2. Want Js to decide case on things relevant to the issue at hand 3. Wont let present 10 ppl that same say thing – Objection: CUMULATIVE 4. Allocate burdens? 5. Try to protect SUBSTANTIVE legal policies B. Focus on FED rules of Evid – but beginning 2007 will be tested on Fed AND Cali on the bar 1. HIGHLIGHT SIGNIFICANT differences C. ANATOMY of a TRIAL 1. Jury Selection – picking the JURY 2. Opening Statement – RULES DO NOT APPLY HERE OR THE STAGE BEFORE!! 3. Ps case –
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(i) Proceed witness by witness (ii) Most evid admitted at trial is TESTIMONIAL (iii) For every piece of REAL evid (demonstrative) you need to have a WITNESS who can lay the foundation!! (iv) Once run out of evid you REST and it’s the Ds turn 4. Ds case – 5. Rebuttal Cases – (i) Once D rests Prosecuter can present rebuttal case – to rebut what the D did – CANNOT offer new material (ii) Then the Defense att’y can rebut what happened there…and so on till questions run out!! 6. Closing – rules DON’T apply 7. Jury Instruction – rules DON’T apply D. For Every Witness 1. A proponent does a DIRECT examination (P) 2. Opponent does a cross examination (D) 3. Party calling can do a Re-Direct 4. After Re-direct – re cross 5. Can be a Re-re-direct ETC!! 6. Scope of DIRECT limitation – limits cross to subject matter brought into on DIRECT 7. On redirect limited on what Cross examiner got into E. What is EVID 1. 3 types (i) Testimonial – questioning and answering by the witness (ii) Real – piece of PHYSICAL or DOCUMENTARY evid that has a DIRECT connection to the matters in dispute (iii) Demonstative (Representative in the book) – charts, graphs, demonstrative evid (a) Doesn’t have a DIRECT connection BUT it helps illustrate or EXPLAIN testimonial OR real evidence 2. Rules set DIFFERENT requirements for the admission of Evidence (i) Depending on Test/Real/Demonst (ii) 66 diff rules but HUNDREDS of applications 3. Can divide into Direct and Circumstantial (i) DIRECT – NO inference needed – Usually EYE WITNESS testimony (ii) CIRCUMSTANTIAL – REQUIRES the drawing of inferences (a) Who ate the cookies? Kid with CRUMBS on mouth = circumstantial evid (b) DNA found on a murder victim – if it matches the D then more likely that D is the murderer (iii) Sometimes circumstantial can be stronger (iv) Problems on pg. 13
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(a) 1 – circumstantial, if issue was if the letter was mailed then it would be DIRECT (b) 2 – direct (c) 3 – circumstantial (d) 4 – circumstantial (e) 5 – circumstantial (f) 6 – direct (g) 7 – circumstantial 4. EFFECT OF RULINGS AT TRIAL  (i) Multitask (a) What is the evid im presenting and what is this going to look like on the record on appeal (1) If you DON’T object to evid chances are you cant challenge its admission on APPEAL (2) To appeal a ruling at trial you MUST show 2 things: o That the ERROR caused harm! o The ERROR needs to be PRESERVED  Give the judge an OPPORTUNITY to rule on objection OR receive your offer of proof (3) UNLESS o Constitutional Error o OR Plain Error  So amazingly bad that everyone is PARALYZED that no one mentioned it (4) Cardinal Rule – must object timely to the admission of evid in order to preserve that issue for appeal if the Judge erroneously AND harmfully admits it!! (5) If someone objecting to your evid you have to make an offer of proof – explain to Judge why the objection shouldn’t keep the evid out!! (6) More efficient to have trial judge to make ruling in the first place (ii) Examples on PG 16 – dealing with CAR ACCIDENT (a) Both spun around and hard to know which one was in the wrong place – some debris in the road and it may help and Accident Reconstructionist to figure out who was where (b) Certain type of metal only on one kind car – is it relevant? only if it came from one of the cars – if it had been in the road for a week then not rel (1) Have to have enough evid that it came from one of the cars to even allow jury to see evid – CONDITIONAL RELEVANCY (c) Expert can ONLY testify if there is ENOUGH evid to permit the jury to find that the metal came from one of the 2 cars
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(d) Function of Judge – he can make determination there is ENOUGH evid for the jury to conclude that the metal came from one of the cars F. Problems 1. 2.2 on 19 (i) R is on trial for robbery and she wants to test that she had fist fight with the manager – trial judge IMPROPERLY excludes the evid (a) It IS relevant!! (b) What is the standard of review? (1) ABUSE OF DISCRETION o He has discretion to admit OR refuse to admit evid – did the judge in this case ABUSE it in keeping the evid out? (2) If PLAIN ERROR then ALWAYS found to abuse the discretion!! 2. 2.3 on 20 (i) V was new member of bar – murder defense of friend – he object to evid – no way things are admissible – its incompetent, immaterial, and irrelevant – is this good? (a) If it were TRULY irrelevant then ok (b) Doesn’t specify shit – an objection that preserves the record must specifically state the grounds upon which its inadmissible (c) You CAN say -- objection: Irrelevant (d) Looks like the type of evid to enflame passions of jury – inadmissible character evidence would be the PROPER objection G. OHLER v. US Case 1. Losing D cant challenge ruling bc a party waives objection to intimeline ruleing by introduicing the evid (i) Pretrial motion inlimine – have Judge decide if a particular evid can come in (a) Using motions inlimine is good – requires BOTH sides to brief the issue and the Judge can better understand how the evid fits into the case and why it may be objectionable (b) If you DON’T make the motion – when the opponent makes it then you have to OBJECT – while the jury is sitting there – a LOT of pressure to make rulings quickly oft w/o the full information needed (c) If have good evid good to ask for inlimine ruling that it be ADMITTED OR EXCLUDED 2. O was on trial charged with importation of pot (i) She had PRIOR meth conviction – she wants to TESTIFY at trial – and prior convictions MAY come in to impeach credibility

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(a) Before risking putting her on stand she wanted to ask CT if the conviction was going to be allowed in – and the Judge ruled (probably incorrectly) that the EVIDENCE was admissible (ii) Now they know if she testify for possession and importation of pot the jury will hear she has prior meth conviction (iii) Defense has 2 choices (a) Keep the witness of the stand (1) Statistically increases the likelihood of conviction, OR (2) ―Prick the Boil‖ – show the UGLY side in a friendly way (iv) He chose the LATTER – got her to explain the prior shit – as it turned out the jury CONVICTED HER!! 3. On appeal, the D wanted to raise that the CT erroneously admitted the evid of her conviction – this ruling was made pretrial and based on that the Defense called her and brought up the shit 4. YOU CANT APPEAL the admission of evid that YOU offer!! (i) BC he offer he waived right of pretrial ruling holding the evid admissible (ii) If you INVITE the error you CANT complain about it!! (iii) Pricking the BOIL is a BAD idea!! (iv) 1/11/06 Relevance  What are you trying to prove or disprove (+ why does it matter)  How does your evidence prove / disprove it o Any tendency is the threshold for evidence to be relevant & if relevant it may be admitted o Probative value v. Relevancy  High  Medium  Low  Negligible / None I. Relevance A. Threshhold requirement B. It’s the GATE KEEPER C. ALWAYS have to consider relevance D. This is the FIREST step of determining admissibility of E E. FED 401 1. E having any tendency to make existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o E (i) Meets threshold as long as it has ANY tendency
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(ii) Needs to be MATERIAL (a) What has to be proved (b) Witness credibility (iii) Basic Relevancy is estab is any time you meet ANY tendency (a) It does NOT = probative value (b) Probative value considers HOW FAR the evid goes to proving the fact you are trying to prove F. DEDUCTIVE Reasoning 1. DD case where empty beer can in the back of the car  can draw logical chain (i) If can in car then increases likelihood that driver consumed the contents and he may have consumed within short time of getting in front of the wheel and if the did then he is more likely to have been intoxicated at the time the car was stopped (ii) If he clipped coupon to buy beer then its more likely he drinks beer….blah blah its more likely he drank beer (a) If the coupon was in a tied up unread newspaper then it would NOT be relevant…cant link driver to intoxication from that. G. Example on 26 1. B wants to produce evid of prior K (i) Goes to prior dealings 2. R wants to introduce evid that B convicted of grand theft auto (i) Goes to showing NOT honest – that he could be lying about his testimony H. ALWAYS MATERIAL – the CREDIBILITY of a witness 1. Any fact tending to suggest that witness is or isn’t telling the truth is MATERIAL to the trial 2. Things like prior convictions (especially for crimes of dishonesty) are ALWAYS going to be material II. Problems  A. 3.1 – JJ with 2 alleged moms and says shes going to cut them in half 1. Their reaction – which is more likely to be that of the mother? (i) Chain of inference: If the woman would not let the baby be cut in half, more likely she cares for the baby more than the other woman, more likely to be the mother B. 3.2 – freddy kills Jason, letters from F to Js wife 1. If he wrote the letters they are probative – If he wrote letters, hes got a relationship with Js wife, which give him motive to off him to be with her. C. 3.3 – missing purse in movie theter, new 50s, found in bathroom w/o money 1. Yes, If Bob paid with new 50, he may have acquired it recently, he may have taken it from her purse – Relevant but, LOW probative value 2. S and J left early from the film, may have left to avoid detection b/c they took the money – LOW probative value 3. H found to have been in possession of drugs – Hes broken the law before
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D.

E.

F.

G.

H.

4. If found in womens room – relevant bc more likely that woman took it OR could say to hide trail man could have ditched it in the women’s room (i) May limit class of thieves to sex of perpetrator but since its confusing and can go either way means that would be excluded bc of confusion – but STILL relevant 3.4 – E accused of robbing bank and that he used a revolver during robbery 1. E took out money at same bank day prior to robbery and friendly convo (i) Could be casing out the bank (ii) Wouldn’t want to show his face there and have friendly convo if going to rob tomorrow 2. 8 yr old bank robbery conviction – yes, same type of crime – fairly probative 3. Fired from prev job bc of unproven allegation that he stole money from register – willing to steal / needs money 4. Participated in 2 barroom brawls – tendency toward violence 5. Delinquent from payments for child support – needs money 6. virtually broke – bank acct elsewhere – needs money 7. owned rifle – hes got firearms 8. E has 2 kids, 2 and 7 – rel – why would he want to go to jail? (i) Paints a picture of a HUMAN BEING – hes a good dad 9. Weed possession in the past – willing to break the law – probative value LOW!! (i) Shows inclination to avoid law 10.Likes rock music and likes gin w/o tonic (i) Cant draw much from this 3.5 – Hubby had life insurance, disappeared, some evid that he was in lake where body found bc of correspondence with someone that put him in the place at the time he disappeared 1. Shows A planned to be there with H, infer that H planned to go (more likely H planned to go if A planned to go), and more likely he went, and if he did its more likely its his body they found there 3.6 – truck driver, working, crashed into car, was Scotty acting in scope of employment – seen falling asleep 1. DOESN’T go toward the issue – toward fact of consequence – is it in scope of employment…doesn’t relate to that 3.7 – H heard on radio that his house burst in flames, charged with arson to get insurance 1. evid that took out fire insurance in last 7 months  (i) Prosecutors Arg  if he recently increased insurance, must have intended to benefit from the insurance, must have intended to burn down the house, if he intended to do that its more likely he in FACT did burn down the house (ii) Defense Arg  If he recently increased insurance, he may have been worried that there was a risk of fire bc blah blah 3.8 – J and J prosecuted for robbing bank, Tommy was robbed
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1. where was teller 5 min before robbery – rel bc he may have been confused for some reason when he saw them – want to show hes NOT credible – put witness as scene where he was capable of seeing the perp 2. How did you feel as they handed note – rel to prove that it was a robbery – needs to feel FORCED, also if scared can say less likely to remember what he looked like I. 3.9 – B charged with distributing coke and ther eis witness that he did it with him 3 months earlier 1. If he did coke with J earlier, more likely he was still doing it, likely he would distribute it too 2. Many ways to make the arg – talking about source to buy, source to sell, or needs money J. 3.10 – F prosecuted for assaulty and batt on A – F says right before F told by 3P that A was out to get him 1. Affects Fs state of mind, belief that about to be attacked, more likely to think hes got right to use self D 2. Does it matter if it was true? No, look more to Rx belief K. 3.11 – J charged with sexual battery, need to show his age, offer evid that he dates 1518 yr olds 1. Does NOT seem to have any tendency to show age L. 3.12 – Rel of circim evid vary according to legal STDs applicable to shit -- NY is VERY liberal – they take into account subjective shit of D – M. 3.13 – bottle of red wine – bought at 2, at 7 arrested for drunk driving 1. If seen getting it at 2 -- If he was buying alcohol its likely he drinks alcohol, someone who drinks it is more likely to be drunk 2. What if it was empty at 2pm – If empty likely he may have drank it, if he did it may have been on that day, if so he may still be drunk at 7 3. what if ½ empty at 2pm – more probative – more likely that he was drinking around 2, blah blah 4. 2pm purch of wine rel if he smelled of beer at 7 – someone who drinks wine more likely to drink beer, maybe beer masking the wine smell N. 3.14 – Test of price – say that P tried to bribe him to testify in Ps favor 1. Ps case was weak? If P tried to bribe price may be trying to do the same for other witnesses, they may have a weak case (uncertainty in Ps mind at the strength of his own case) which prob means his case IS weak O. 3.15 – Jump test to determine guilt or innocence – believed that innocent would survive…J tells H to jump, H says no 1. If he said no to jumping, and everyone thinks innocent survive, then relevant since show that hes not innocent – also refusal to jump can be bc he knows its NOT true and that he doesn’t wanna die 2. low probative value – may confuse it more than help P. 3.16 – B charged with extortion – threatened to shoot local butcher if he didn’t pay for protection, govt offers evid that D had several guns in his bedroom
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1. ppl with firearms more likely to threaten to shoot, more likely to carry out, more likely to threaten

1/13/06 I. on the board: A. unfair prej B. confusion of issues C. misleads jury D. undue delay E. wastes time F. needlessly cumulative II. First conditional Rel III. Then 403 – start of REL where ok rel but exclude it? IV. Conditional Relevancy Objection: Your honor, objection, lacks foundation A. Rule 104(b) – sometimes you don’t know the first time a piece of evid is offered how/whether it relates to the case 1. Example – bike had faulty breaks 1 month before accident (i) Conditional on if the bike was in the same condition a month ago as it was the day of accident B. Judges decide issues of law, juries decide issues of fact – If evid is admitted conditionally 1. up to the jury to decide if it IS in fact relevant 2. Judge can conditionally allow evid 3. Sometimes jury CANT conclude after the testimony on the conditional shit and then judge can ask jury to disregard rel of the gun C. Cali rule and Fed rule – carried out the same way pretty much BUT, cali rule spells it out MUCH better D. REL STD in 401 – ANY TENDENCY to make material fact MORE OR LESS probable 1. if the jury could find that the gun is the murder weapon then they get to decide if it is in fact the murder weapon E. When first admitted CONDITIONALLY rel subject to being linked by subsequent witness – Gun would be the PROFFERED EVID V. PROBLEMS: A. 3-17  pretty wording – hedge shit exploded 1. objection – lacks foundation 2. conditional on if the piece of metal came from the hedge cutter blade being used B. 3-18  crime scene no prints but gloves of the perpetrator 1. yes, link them to the robbery – like were they by the perpetrator or the dish washer? 2. You need to link the gloves some how to the crime
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VI.

C. REVIEW on GEN REL  D. 3-19  the swollower – smuggling coke v. diamonds 1. Rel – would it be profitable and is it feasible?  conditional on if the D really thought that’s what he was doing E. 3-20  friends don’t let friends 1. If he was at another bar more likely he was drinking there more likely he was drinking at 2nd more likely drunk driving 2. if beer cans more likely he drinks beer, more likely he did drink, more likely he was dd 3. if hes got 2 kids more likely he doesn’t want to go to jail 4. if convicted of it before increases the likelihood that he would do it again 5. if convicted of reckless driving, he is unsafe driver and has little concern for car laws, more likely get behind wheel 6. high level exec of fortune 500 may be the type to be unlikely to commit this 7. 6 pack in his fridge, more likely that he drinks, more likely to have drank so he dd 8. NOT RELEVANT 9. important meeting – conditional releveance – if he was caught thrus night then it would be rel that he has meetings on Friday morn 10.if beer belly doesn’t necessarily mean its from beer – maybe conditionally rel that he got his from drinking beer 11.ATTENUATION goes to PROBATIVE VALUE of the E (i) too attenuated that he collects beer cans 403  A. 401 defines rel – any tendency, material, probability B. 402 sets lenient std C. After that all rules that acknowledge relevance of the evid but limit admiss D. 403  rel evid can be excluded if probative value is SUBSTANTIALLY outweighed by 1. Fairness and Accuracy – Due Process type concerns  more weighty and more likely to get evid excluded on this ground!! (i) unfair prejudice -- most commonly used!! (a) Focus on UNFAIR!! (b) Cause a juror to decide case based on passion or emotion rather than on reason (ii) confusion of issues (iii) misleads jury 2. Judicial Efficiency concerns (i) undue delay (ii) wastes time (iii) needlessly cumulative E. 403 requires you to consider how TENUOUS (strong) the link is 1. the DD in the last problem, the fact that he was in a bar has HIGH probative value and the fact that he collect beer cans is a very LOW probative value
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F.

G.

H.

I.

J. K.

2. Against probative value are the reasons why not to admit 4-1  one drink too many: truck and car collided and file against person and her e’er 1. blood test by dr and ds attn says nurse had just seen him and he didn’t smell of alcohol – not UNFAIRLY prejudicial and J should let it in!! 4-2 – probability: it had to be you – d says mistaken id but someone test that 1 in 12 mil prob that person matches him in that town 1. question is if THIS guy committed if not if someone matches his description 2. why limit it to the town – well the person that committed the crime was not necessarily from the town 3. MISLEADS THE JURY!! 4-3 – lose your lunch – color photos of the bodies 1. unfair prejudice objection – most of the time the evidence DOES come in 2. most of the time in murder cases full color photos including autopsy this would get admitted – not admitted in case she did bc it wasn’t for degree of murder 4-4 – legs amputated from accident 1. detail of what happened at the accident – probative value is HIGHT – P&S damages 2. showing stumps for legs – HIGHLY relevant – danger of UNFAIR PREJ doesn’t substantially outweigh the prob value 4.5 – day in the life – injured in crane accident – video of what her day is like 1. highly probative and usually does come in 4-6  2 white cops shot at 2 black men with guns ―robbing a woman‖ but turned out the 2 black men were undercover cops in process of arrest 1. only rel to explain the Rxness of the mistaken belief – might be relevant to that point – they can come off as RACIST 2. could be that they were NOT being Rx but RACIST!!

II. Probative value v. unfair prej, confusion, misleading, efficiency A. Review problem of the swollower – pg 37 1. why would this be rel – remember criminal law – mistake of fact is a defense depending on the type of crimd (i) where mistake of fact –gf – for specific mistake (ii) gf and rx for general mistake (iii) have to estab that D actually believed he was swallowing diamonds – if just have to show GF then Bs testimony is rel bc the feasibility and profitability to show he had a basis – unlike a frivolous belief (iv) if it’s a general intenet crime stat then gf and rx – and this even more probative (v) regarless of which one D has to first BELIEVE that it was diamonds – if B goes first its CONDITIONAL on his belief B. remember to WEIGH probative value as well as the other side – under the 403 std it tips in favor to admit UNLESS the prob value of the evid is SUBSTANTIALLY outweighed by the other 6 things
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1. if its EQUAL you ADMIT!! III. Prior similar acts, conduct, occurrences A. To estab something where evid isn’t blah blah B. If an accident has occurred and you don’t know how it happened and you have a number of similar accidents at a particular site and its from defectively constructed roadway…this shed light on how this accident came about C. Probative value is oft going to be relatively slight D. Where you can show similarities where event occurs – raise the probative value (seems more probativeof what might have happened) and lessening the issue of blah blah 1. its rel but maybe not too rel unless you can show significant similarities…you increase left side and decrease right side!! E. Evidence of comparable val in RE situation 1. prices of other houses are relevant and not unfairly prejudicial depending on how comparable they are 2. prob val is not going to be well est unless the homes are very similar, same br, same sq ft – the more similarities you can draw the more probative the sale price will be in determining the price of the current house!! F. 4-9 PUDDLES – wally test in slip and fall – puddles of water on walk way 1. can wally test that he saw puddles form regularly over 3 weeks – NEGLIGENCE – to allow the puddles to stay; NOTICE – knew about it (i) factors – look at time of day, did it rain for 2.5 weeks?, why did the other ppl fall?, did he have NOTICE of the puddles? (ii) Need to know about substantive law – assuming trying to show he had NOTICE – then its reckless not just neg (iii) Need to show similarity of condition and notice – then low prob value and wont come in G. 4-10 – seafood – ship shrimp and try to show K clauses from K for scallops and clams 1. what do you need to know? If there is something REALLY dif or unique about the shrimp – shipped at risk of whom? Prior COD – similar – high probative value and low other side then admissible, and same other way around H. 4-11 – double decker – S thrown from ride at state fair and sued the ride owner and mfger – D try to show that no one injured in 5000 previous rides 1. this is an absence of occurrence evidence situation – how does this affect probative value 2. usually this is EXCLUDED under 403 – ambig meaning – prob only keeps track of REPORTED injuries – no solid proof – even if no one hurt – doesn’t mean the operator this time wasn’t negligent!! (i) Most ppl driving cars get to their destination w/o an accident? That doesn’t mean no one ever has accidents 3. CLASSICALLY EXCLUDED!! I. 4-12  how sweet it isn’t – no-sweet machine exploded – tried to introduce evid concerning other no sweet machine explosions by the P
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IV.

1. as long as you can make a strong showing of similarity of circum then it would be admiss – but if not that strong a showing of similarity of circum – operated under diff conditions – operator error can be a factor J. 4-13  sexual harassment and unlawful retaliation suit by J against A 1. are you the only person to have this claim? OBJ: unfair prejudice  (i) the answer is rel bc if more complaints then more likely that he does it and more likely he did it to her (ii) don’t know much about those other complaints and what happened there 2. outcomes of the complaints? OBJ  if all dismissed, more or less probative? Don’t know why dismissed 3. danger of confusion and unfair prej – gone up, prob value went down REVIEW PROBLEMS A. 4-14  pre owned clothes – accused of stealing 5 expensive mens suits 1. closet and dressers have 200 pairs of mens socks and 300 towels (with monograms) – different types of crime – towels can be from hotels and that’s not the same as breaking in to house and steal, socks could be his – fairly low probative value on BOTH!! Not admit!! Danger of unfair prejudice, confusion 2. j had 40 suits in his apty closet – hard to infer that if he has 40 that he must have stolen 5 -3. J had stolen 20 pairs of undies the yr before –highest probative value out of the rest of the evid – again that doesn’t mean – what if he stole the undies from STORES? If he broke into HOUSES and did it then its more probative – from store its character of theft but not the same crime B. 4-15  cars collide on street, ones sues the other for injury and shows video of scalp wound – video highlights blood 1. sued for NEG – ok for damages but to prove neg not necessary to show the vid (i) but maybe she was under anesthesia – a lot of P&S cases that allow prej – where major pain and life threatening – if just cut on scalp, then you prob don’t have as good a just for offering the evid (ii) could be unf prej – decide based on passion (iii) more would exclude in this situation C. 4-16  wax on wax off – A falls in lobby of aC – sues for neg maint and repair of floor 1. A shows 9 others slipped and fell in gen area and 3 were after her – is this right outside the bar and all the ppl falling at closing time? Need to show similarities – could it be rel for something other than neg – RECKLESSNESS – if have to show notice the 3 that fell after aren’t included 2. amy offers test of prof floor cleaner – did experiment on floor 2 yrs older – the one she fell on remodeled and it was HIGHLY slippery (more than other floor) – diff building, diff floor, it was remodeled – diff – floor is gone, does 2 yrs older make a difference, expert test has to be scientifically based but we learn that later

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3. shows shit about other buildings it owns – have to do something to connect it to case – are ppl slipping and falling on ALL of their floors, w/o connection NO prob value 4. evid that A fell 2 other times that week – A has propensity to fall, she’s a klutz, if she slipped in the OTHER 2 places bc they were slippery surf too then no prob value 5. A shoed that no one fell in 3 months preceeding fall – shows less issues of neg or fault – how would AC know if someone fell, sorta like rollercoaster – is it that no one fell or that no one reported it? Does it mean they didn’t overwax D. 4-20  J charged with murder, P calls expert to stand that bite marks on victim were made by J 1. rel of expert – questionable – bitemarks TEND to look similar 2. what if bites were playfully inflicted? 3. still need something to connect J to the killing – unless they were inflicted at time of death V. OLD CHIEF – PG 61 A. FACTS: the prosecutor wanted to introduce previous crime -B. STAT: Felon in possession of firearm 1. has to be CONVICTED felon – D stipulates to that C. ISSUE: Is the evid unfairly prejudicial? D. ANALYSIS: 1. bc hes a man with a violent past they may convict whether or not he violated the firearms law 2. prosec is entitled to prove case with the evid they have and gen don’t interfere – and bhere the SC is doing that!! (i) Abuse of discretion E. HOLDING: 1. rule that J abused discretion by allowing prosecutor to put up evid that is rel 2. holding does NOT prohibit the govt from EVER offering this kind of evid 3. 2 important things (i) It’s a STATUS CRIME – liable to be convicted bc of his status as a FELON (a) Doesn’t show ANYTHING about intent that bears on status crime (ii) There was an ADMISSION!! (a) The D was willing to admit that he had prior felony conviction – if willing to admit, the nature of crime adds NOTHING to the case!! (1) Marginal increase of probative value – danger of unfair prejudice is HIGH!! 4. jury may convict bc of the intense crime that presented!! 5. pretty hard to EVER get a reversal – limited to this exact type of fact pattern!! VI. HERSAY – going to take it SLOWLY – doesn’t want to rush us through it!! A. Really important to read the advisory comm. Notes – hardest part of it is what we are doing the first 5 classes – what is H and what is not??
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1. if you try to do it based on intuition you are going to be WRONG a lot of the time

1/20/06 I. Hearsay A. Raleigh Case – C said R did it – R was upset, he wanted C to be brought INTO the ct room and to have C make the accusations to Rs face 1. One of them went to talk to C instead and he said it was true there and R was sentenced to die 2. Hearsay Rule came out of this 3. And the Confrontation clause to the 6 th Am came out of this too!! B. What is the problem with resting conviction on Cs out of ct stmt? 1. He could be lying, confused, tortured, innocently mistaken, etc. 2. Not under OATH, no PERSONAL PRESENCE OF TRIER OF FACT, not SUBJECT TO CROSS-EXAMINATION C. Three Conditions under which witnesses will IDEALLY be required to testify: 1. under oath 2. in the personal presence of the trier of fact 3. subject to cross-examination D. This standard lead to the hearsay rule – 802 1. Hearsay is NOT admissible except as provided under the rules E. WHAT IS HEARSAY??? 1. THE CL DEFN of HEARSAY – in 801(a)-(c) (i) 4 key components: (a) OUT OF COURT  (1) NOT in the present proceeding (2) Even stmt made in different proceeding in same case is considered hearsay o Pretrial motion, etc (b) STATEMENT  (1) MUST be an ASSERTION o A statement that asserts a fact o capable of being true or false (2) DO NOT have to be verbal o Statement can include verbal conduct OR non verbal conduct IF the non verbal conduct is INTENDED as an assertion  If someone hurt themselves and grabbed thumb that’s NOT assertion but if point to medical chest that MIGHT be assertion
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 CASE example – 2 cars stopped at red light (one guy in huge truck and a little obnoxious guy in his vette, behaving obnoxiously and revving engine and ext) i. Vette guy couldn’t see light bc truck was blocking it and the guy in truck moved forward and engine revved – vette guy said trucks moving forward was an assertion of FACT ii. It is NOT intended to be an assertion – that is the KEY!! He was likely just trying to get started bc he saw the other light had drawn iii. If you have to draw an inference its FINE as LONG as it wasn’t intended as an assertion its NOT hearsay!! (3) Proponent of E always has the burden of proving (c) BY DECLARANT  (1) Must be a Person (d) FOR TRUTH OF THE MATTER ASSERTED  (1) Need to know what it is you are offering it to prove!! (2) Ex – ―the building is on fire‖ – if the issue is why did someone run out of bldg that is just offering reason why J reacted that way (3) Would this stmt prove the point I’m trying to prove even if the statement were false then its NOT hearsay? o If its relevant to the case ONLY if it is TRUE than it IS hearsay!! o Is it the truth of what the stmt said or the fact that it was made that matters? (4) CERTAIN TYPES OF EVID LIKELY NOT HEARSAY  o Circumstantial E of State of Mind  Proving something circumstantially about someone’s state of mind  Hearer – Affect on the hearer/listener i. Like the J running out of bldg after M saying ―the bldg is on fire!‖  Speaker i. Sometimes assertion of Fact can give E of the Ss state of mind ii. Ex – A saying I am the Queen of England – for proving competence of the speaker!
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 If words saying directly what is the state of mind that is NOT circumstantial – circum you have to INFER something about a persons state of mind!! o Impeachment  EX – If witness test that when Vette shot into intersection the light was Green – and then person says, isn’t it a fact that you told the cops the light was Red for the vette? If offered to prove the color of light its hearsay BUT, the other use for that is to use the out of ct inconsist stmt to impeach the witness – show that he has changed his story and by doing so the witness seems less credible – he cant be trusted  FEDERAL i. Evid for impeachment use is NOT admissible to prove the truth of what it asserts ii. Can consider the witnesses answer initially as impeachment evid but it is NOT competent evid of the substance  Prior inconsist evid is not being proved for truth just to show that witness is not credible o Res Gestae  Allows someone who offered evid to offer other evid blah blah  Lets get the WHOLE ball of wax before the ct  If someone offer out of ct stmt that IS admiss but only bc they are the ones offering it – the opponent can force the remainder of the stmt to come in bc its part of the body that is being testified about  She hasn’t seen or heard about it, only read about it in text books  Not a big way to get around the rule o Operative Facts  Verbal Acts i. Ex – here you can use it today I need it back tomorrow – assertion! And limits the scope of handling the keys – must accompany the act at the time the act occurs!!  Independent Legal Significance
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i. Words can have independent legal significance!! ii. If you bring a K action, one thing you offer is the K – hearsay would never be proper objection – offer is another act that has independent legal significance (like an offer for an award) iii. Any words that create legal duties OR affect legal status are NOT hearsay stmts iv. Usually also not asserted!! o Circ. E – Memory  Ex – rape victim, trying to link D to the rape, and victim taken by abductor to the apt – if victim testify to describe furnishings of the apt AND there is independent proof of the furnishings of the apt i. This stmt is NOT being offered to prove those are the furnishing of the apt but they show CIRCUMSTANTIALLY that the victim was in the apartment!! ii. Infer that the victim had been there (ii) PROBLEMS: (a) 10-1: Dognapping – B charged with stealing and selling neighborhood dogs (1) SA test that when she saw F in Bs yard eating steak he wagged tail on seeing her o NOT A PERSON!! (2) A said to Britt – that’s my dog! o Shes a witness AND a declarant (3) A told cops dog she saw in Bs yard was Fido -- Hearsay (4) Officer B asked A if she was sure it was F and she scratched head, looked quizzical and nodded her head, yes – hearsay – non verbal assertive conduct (5) A test that the dog she saw was her own – NOT HEARSAY!! (b) 10-2: Go Ahead, Make my…civil assault and battery action – dispute of who mow grass btwn their houses…K said that B spoke with him and he told him that S sucker punched him blah blah (1) Hearsay – proves the assault and b if the stmt is true (c) 10-3: Hoops – b-ball player limped to sideline grimace in pain clutching knee (1) Expression of pain like thumb example (2) Not intending to assert anything
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2. 3. 4. 5.

(d) 10-4: Admitted – issue if J has psychiatric illness – him being admitted for observation (1) Trying to prove hes got illness, is the drs act in trying to admit him an assertion of fact? An INFERENCE is being drawn here – clue that its NOT hearsay – putting patient in hospital is NOT assertive conduct, just trying to get patiend appropriate care – NOT HEARSAY (e) 10-5: issue of Ds sanity – wife say he howl at the moon and stay in dog house (1) Circ evid of state of mind – it IS out of ct, might NOT be assertion, by decl but NOT for truth of matter asserted (2) Circum evid of conduct that tend to show lack of sanity (f) 10-6: Time of death – don’t know when – dr pull sheet up over Ds head (1) Inference being made that pull sheet over head = dead—if that is always the practice then can say assertion – otherwise conduct NOT intended to assert something if do it out of respect for the patient (g) 10-7: N agree to sell car to V pending inspection – as part of Vs case he test about terms of the K including the inspection clause (1) This falls under the operative facts – independent legal significance (h) 10-8: scarlet letters – 2nd will left everything to pigeons – letters from business ppl trying to do bus with him (1) Trying to say hes NOT competent – inference to be drawn – that they think he is competent enough (2) Letters in case were kept out but the fed rules added word as INTENDED as an ASSERTION changed the rule (3) Is it likely that ppl that want to do bus with him are intending to assert ANYTHING about his competency? (4) Can draw inference if they wrote they thought he was competent to deal with these kind of affairs (5) Circim evid of state of mind – speaker and infer state of mind of the guy too. (i) 10-9: 801(d) is Statutory MAGIC – cover this MUCH later – creates a category of NON-HEARSAY for matters that would normally be hearsay Exceptions – 23 enumerated in 803, 5 enumerated in 804, and 807 is residual exception Additional Rules – 805 and 806 Confrontation Clause

1/23/06
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I. REVIEW A. Is the fact that stmt was made rel or its truth? For last element B. Policy about the rule – when you have to get stmt introduced thru someone else you don’t have evid of w credibility that you would otherwise have C. Back to problems  D. 10-9 – big mouth – defamation – ―R more corrupt than Ulysses Grant’s entire admin‖ 1. H? not being offered to prove what it asserts its NOT H!! (i) In defame, the fact that the stmt was made that’s relevant! (ii) Act of independent legal significance – a defamatory stmt has independent legal significance 2. Admiss? YES E. 10-10 – here comes the bride – if R and K legally married…heard each said I do 1. Hearsay? It’s a K – act of independent significance – binds them in matrimony – not H 2. 2 hrs after wedding they said they said I do – CLASSIC H 3. or saw rehersal, were nervous, said id there…one of few times didn’t see them fighting – H only repetition of the out of ct stmt that can be Hearsay is when she says they said I do at rehersal…the rest is in ct stmt!! F. 10-11 – question of if J can talk – I can cry 1. not H – not being offered for truth of what it asserts but to show that he spoke G. 10-12 – question of if J can cry – I can cry 1. this IS H – stmt being offered as proof that he can cry!! H. 10-13 – molestation – cop testify about what was said  S said what was in the house – for truth of matter asserted? 1. trying to prove who molested her – if limit this narrowly of if the child was in the house then are you trying to prove matter asserted that the house was furnished this way (i) what if cop says…there was giant papier mache doll in the house…if the kid then says she saw that in the house then what is it being offered to prove…that she was IN the house!! (ii) If you limit stmt its circum evid of memory (iii) The way THIS prob is set up, according to the stmt made to the police, said the molestation happened in the house with these specific furnishings – the fact that she says she was MOLESTED in the house – that is HEARSAY!! (iv) NON H – that she was in the house with a papier mache doll (v) H – I was MOLESTED in a house with a papier mache doll I. 10-14 – cop sued for converting funds from former e’er – city bank – B test for P. B asked on cross…contrary to stmt didn’t you say last week….inconsistent stmt 1. IMPEACHMENT J. 10-15 – J takes ride on rollerblades…leaves them outside and Tim says B just stopped and took them…J sues B and calls T to test and when ask him who took he said A took
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1. J CAN impeach Tim – used to impeach 2. Not for truth of matter asserted – HEARSAY!! 3. If J has no other evid other than tims test and that her skates were taken w/o permission – will she win? NO, inconsist stmt and no other evid…need to offer prior stmt to prove truth of what it asserts, no evid!! II. REVIEW PROBLEMS A. 10-16 – assume all out of ct 1. to show bird named C is owned by S, C when in room with S says that’s my S! (i) NO … DECLARANT is NOT a person 2. Issue of if M liked L…m HUGGED L on when saw him (i) Did she have intent for it to be an assertion?? She PROBABLY didn’t intend assertion (ii) Need to look to intent to determine the non verbal conduct!! 3. Issue of if M liked L fact that M chose L last for her team in moot ct competition (i) Is it even RELEVANT?? (ii) Is it really an assertion? 4. Issue of if M liked L – Ms stmt I like L (i) YES – if shes lying it DOESN’T prove it 5. Who robbed laundermat? P said L robbed it (i) H – being offered to prove EXACTLY what it asserts!! 6. To prove T and S are married, test by R that they said I DO when asked by preist (i) Like prev thing – act of independent legal significance—NOT H 7. to prove C stabbed D – C was seen fleegin house (i) flight allows to infer guilt but did she INTEND to assert that she was guilty!! NOT H 8. If B died as result of accident – Bs stmt that jeep hit him and knocked him over (i) If offer to show accident was cause of death – his stmt that there was an accident – it would be H for that purpose (ii) If issue was he killed INSTANTLY? Then its not H – fact that he SPOKE prove that he survive, substance doesn’t matter (iii) If to show accident words describing accident is H!! 9. J commit murder? She attempt to poison prospective witness after charged with crime (i) NO – intended as an assertion?? 10.Prove P died of accidental causes….autopsy saying accidental causes (i) Truth of stmt is KEY – its H!! 11.To prove that S is Ps dad – test that S oft refer to P as my son (i) YES its classic H 12.If R hit L, Rs stmt I boxed his ears but good (i) YES – trying to prove truth of matter asserted!! 13.To show L commited robbery, written confession (i) YES
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14.to show that B went to store with A – overheard question why did B go to store with A (i) it’s a QUESTION – but exception to the rule bc she is stating that she DID go to the store – question CAN have an assertion of fact – that the 2 went to the store tog and offered to prove that so its excludable as H!! 15.Show road turns sharply, Os stmt, hey watch out that road turns sharply (i) HEARSAY!! 16.To show that D was neglicent in running of road, Os stmt hey watch out that road turns sharply (i) Stmt to show that D has NOTICE – if h eknew or s/h/k – that makes it non H – not to show that road turns but to show that D was aware of it and therefore was neg (ii) Non H purpose here – affect on hearer 17.To impeach G, asked didny oyou say you were not at home then unlike now? (i) IMPEACHMENT ONLY!! 18.If new model of 4wheel drive car safe, consumer report artivle that its extraordinarily safe (i) H 19.If accused commited burglary – evid that attempted to escape jurisdiction 2 times after being arrested (i) NOT AN ASSERTION AND NOT FOR TRUTH OF MATTER ASSERTED!! 20.if jag was gift or loan – smtt here are keys can use for year as bday gift (i) not H bc OPERATIVE FACTS – qualify act and give SOME limitation 21.if newspaper art defamed the mayor, a stmt by reporter the day after published, yeah I said some not so nice things about mayor (i) it’s a backward looking stmt – article itself is NOT H, but the admission is H!! B. PROBLEM 10-17 1. to show D tell truth, test on direct that in her deop she spoke consistently with testimony in ct (i) this IS H – witness repeat out of ct stmt – prior consistent, doesn’t impeach!! 2. who started fight btwn C and S, a prefight stmt by J to S hey S C is gunning for you (i) what is it you are trying to prove – (a) Assume Ss lawyer trying to prove that C started the fight – someone knew that C wanted to get S, likely that C started fight – its H (b) Ss atty with defense of SD – this stmt goes to STATE OF MIND – J inform S that C is out to harm him, might make more Rx for S to start the fight – its NOT H here – used to prove an element!! Affect on the LISTENER – created in Ss mind a fear or apprehension of
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what C is planning to do which might make conduct on part of S more Rx seen as self D 3. Whether breach of K, L said at trial the K stated I was to del the bellies by 16 th (i) Hes testifying about a term – if its term of K its NOT H!! (ii) Terms of K are terms that create legal obligations – operative acts!! 4. to show L and C were friends fact that they talked to each other at a party for several hours (i) not intending to make an assertion – conduct is being offered…unlikely that intended as assertion 5. if A commited crime, claim pre trial – I did NOT commit crime (i) HEARSAY – s,d,o,a,t 6. on issue of if J conspired to commit the crime – J signaled thumbs up when he was asked to join conspiracy (i) act of independent legal significance!! (ii) Like saying I DO! (iii) SUB ISSUE – its not entirely independent of truth – defense can argue he never INTENDED to join the conspiracy! 7. on issue of if J agreed to commit the crime J remained silent when asked youre not going to chicken out (i) SILENCE – is that an assertion? (ii) If someone says something that you would deny if it were NOT true, the law allows silence to be taken as an ADOPTED ADMISSION!! 8. If S paid a parking ticket, S has a receipt of payment issued by DMV (i) Is the possession of ticket RELEVANT? its only relevant if you look at assertion that its on it – this is H!! (ii) Reciept is an assertion that pymt has been made 9. TO show paid ticket pic of S paying money at cashiers window of DMV (i) Is the photograph an assertion? There is NO declarant, it’s a pic and NOT a verbal assertion and NOT non verbal conduct intended as an assertion (ii) Photo records conduct that is LIKELY not intended as an assertion!! (iii) There are many acts that we make from which inferences can be drawn BUT, are we intending to ASSERT or just a fact? (iv) Psychiatrist admitting patient in medical hospital – making assertion? Can infer that believes he is mentally ill but likely NOT intended as an assertion!! (v) Handing money to teller is NON ASSERTIVE conduct 10.If S died in heli crash – stmt hey im still alive (i) No not hearsay – TRUTH is NOT whats relevant 11.if the D attempted to bride govt official, evid that D attempted to kill him before he could test against D (i) not an assertion!! 12.If the T;or of Js jag to K was loan or gift – stmt by J one hr later it was a loan (i) NOT OPERATIVE FACTS!! (ii) To far after bc not verbal part of act bc its separated from the act!!
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(iii) She can test at trial that it was a loan but if she is repeating her out of ct assertion that she made 1hr after giving keys then it IS H 13.if D acted in SD in killing V, stmt prior to fight and offered at trial, im scared of V (i) is this circumstantial evid of her state of mind? NO, its DIRECT evid of her state of mind!! (ii) This IS Hearsay!! 14.If cab was safe, the driver drove away in it after visual inspection (i) Was driving away an assertion?? Not intending to assert!! Non verbal non assertive (ii) Can make an inference but its NOT the same as an assertion!! 15.if D guilty of crime, S yelled over here and set fire to direct suspicion on him and away from E and W (i) SAID TO SKIP!! But went over answer anyhow (ii) Assumption that S is speaking and acting with intent to communicate to police that HE and not E and W were involved in the crime (iii) If this assumption is right then it IS H!! (iv) If just trying to create disturbance then its NOT intended as an assertion but as a distraction! 16.If O likes H, O prior stmt H has no faults (i) His stmt doesn’t go to the truth of the matter – her lack of faults is NOT whats at issue!! (ii) CIRCUMSTANTIAL evidence of STATE OF MIND of speaker!! (iii) What he says CIRCUMSTANTIALLY bears on what he feels about her 17.If O like H, Os stmt I like H very much (i) YES!! 18.If O left money to H, Os stmt I like H very much (i) Not H, not offerd for its truth (ii) Its NOT circumstantial evid…its DIRECT, I LIKE HER!! (iii) Trying to show bc O liked H he had a motive to leave her money – trying to prove he liked harriet – its trying to prove the truth of the matter asserted (iv) What if will said, I leave all my money to H – then his stmt can be to show that H in the will is Harriet – could be offered to show the ID of an individual – hard to divorce it from motive! (v) In a will context trying to say he left if it MOTIVE to leave it to her – MAKE A LEAP (vi) If trying to prove he liked her and that’s why left her money its H (vii) If tyring to show ID then stmt shows hes acquainted with her blah blah 19.If S poisoned, stmt Ive been poisoned (i) H!!
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20.If S acted Rx in drinking poison, someone saying before she drank – that looks like poison (i) Not H – to show that she was put on notice, not Rx for her to have it (ii) Not for truth of matter asserted!! (iii) Circum evid of stmt of mind of HEARER – hears WARNING that poison and drinks anyhow is possibly NOT behaving Rxly 21.is leg hurt, A stmt my leg is hurting me (i) H!! Proves his leg is hurt bc his leg hurts 22.who shot the sheriff? Es stmt, I did NOT shoot him (i) this narrows the field if its true – its H!! (ii) One persons stmt doesn’t prove who did but it DOES exclude that one person 23.if C went to store, cs stmt that morning – im going to store this afternoon (i) REL – that she intended that morning to go to the store and she may have acted on it (ii) She SAYS she was going to go (iii) HEARSAY!! (iv) Stmt of intent to go to store allows us to infer that she in fact DID go to the store 24.If C went to store, Hs stmt that C told him shes going to store this afternoon (i) HEARSAY – double hearsay…his out of ct stmt including her out of ct stmt 25.To show lamp was Rs, J said this lamp belongs to R (i) H – proves point only bc of truth of what it says 26.show lamp belong to R – this is one ugly lamp (i) if said lamp was ugly he may believe it was ugly…etc… (ii) not being offered for truth – circum evid of his state of mind!! 27.how L feel about B, L shok hands with him (i) not intended to be an assertion – can argue that in some cultures it IS an assertion 28.to show B commit crime, unsuccessful attmpet to bribe witness (i) no – not intended to be an assertion!! 29.Show P is NOT a thief, he was named CFO by company pres!! (i) Does naming someone CFO assert that he is not a thief? NON assertive conduct!! HANDOUT from exam – see the page!!!!!! I. REVIEW A. What you trying to prove B. How evid try to prove that C. If H, is it taking that approach D. HEARSAY HANDOUT
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1. NH 2. NH 3. NH -- If he said I am not the O but im taking this land by AP then that would be H, relying on stmt being true 4. NH --Stmt - -there was a reason for H to assault Y – the stmt proves it – hearers state of mind —may cause him to become enraged and assault 5. NH – doesn’t offer the truth of the matter asserted 6. H – proves that X is the shooter ONLY if the stmt is true – have to rely on the truth of the stmt 7. H – just like above 8. NH – circim evid of state of mind 9. H – relying on truth to prove that he realized he was dying 10.NH – independent legal significance -- K 11.H – not operative fact – it IS H – no independent legal significance 12.NH – circum evid of Ds feelings for X – not for truth of matter asserted!! Doesn’t matter if X is liar and hypocrite 13.NH – circum evid of the Hearers state of mind 14.NH – ys rep known to X – is it an assertion? Reputation is COMPOUND hearsay – what EVERYONE says about someone – is it H?? offered to prove Rxness of Xs conduct and not that he IS quarrelsome and etc 15.rel if try to show that X thought that Gs have tendency to murder (i) Circ evid of Hs state of mind (ii) Reputation – its MASS hearsay!! (iii) N H!! 16.not intending to make an assertion – the fact that hid from relatives the nature of hospital makes it even easier to show not intended as an assertion 17.not intended as an assertion that hes insane 18.fleeing isn’t an assertion – no intend to assert anything!! 19.verbal portion of act contemporaneous with act – explains donative intent – this is NH (i) Verbal act v. operative fact – same thing!! Also words that have independent legal significance 20.not assertive conduct 21.to show that x ill W offers to testi that X complained of pain in chest – (i) H – exception – present phys condition, present sense impression 22.On issue of payment, w saw D hand P a 500 bill and say this is payment for car (i) Operative facts – explains the purpose of transferring money 23.in 22 on issue of payment, offer to testi on following day I was glad to pay you cash for that car (i) H – (a) Depends on who offer it (1) By Plaintiff – not likely but can be party admission if it’s the Ds smtm
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(2) Other than that not come in!! 24.Action for conversion of car, to prove value P offers receipt for purch price signed by D (i) H (ii) Admiss under bus records exeption!! (iii) If didn’t say anything, D offer against P, adoptive admission 25.D mechanic said – Spindle on front wheel may break at any oment – offered to show spindle defective (i) Offer to show the truth of the matter asserted -- H 26.What if offered to show ass of risk – 27.H – offered to prove truth of matter asserted? (i) Admiss? Present sense impression – likely would come in – as he passed house!! Simultanous transmission blah blah 28.NH – not offered to prove that he did the act – just to fix the time (i) W – in ct – shows act (ii) M – offered to FIX the time, not to show the act (iii) Essentially W said something to Me (says M) to tie it together – its Ws stmt to show that act occurred and M is just to show when the stmt was made (iv) Ws testi describes the act!! (v) M under oath subject to cross exam – 2 Ws providing in-ct testi – one (M) does have to refer to what W said but not being offered to prove truth but rather just to fix the time – just to fix time its in ct testi 29.confession to cops (i) H – party admission so comes in!! (ii) No C issue bc in ct and can testi if he wants 30.evid that D remain silent after being arrested for crime – not H bc (i) nothing for him to ADOPT – silence only H when adopt stmt, here just being silent, not assertion!! 31.to prove comit crime (i) H (ii) Public record (iii) 803 – J of prior conviction 32.prove that D commited the crime – (i) H – jury verdict is out of ct stmt – its assertion its H (ii) Probably admit as J of prior conviction 33.prove H insane, evid that lived in nest on top of tree, not H (i) not assertive conduct 34.breach of K – ad – operative fact so NH 35.prove D comit crime (i) offer reward, infer that blah blah (ii) operative fact, NH 36.to fix time, witness that min after heard shot, heard clock chime (i) clock is NOT a person, NH!!
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II. Statutory Non Hearsay – 801(d) A. FEDERAL RULES 1. Unique!! 2. Rather than creating EXCEPTIONS, it has 2 categories of E and the rules say they are NOT H B. CALI – 1. creates exceptions for these types of evid its NOT not-H under the Cali Rules!! 2. Bottom line in BOTH its ADMISSIBLE 3. IMPORTANT DIFFERENCE (i) C. 801(d)(1) PRIOR STMTS (by a testifying witness) – not just for impeachment purposes but to admit the stmt substantively (to prove the truth of the matter asserted) 1. REQ FOR ALL STMTS FOR TESTIFYING WITNESSES -- Witness is TESTIFYING AND W can be x-e’d re prior stmt (i) PROBLEM – X-examination – removed from when the prior stmt was made – concern that there is NO guarantee bc lies can harden, not subject to being revealed – avoid answering the question completely!! (a) 2. A – Prior Inconsistent Stmt (i) Inconsistent (a) Wiggle room on what is inconsistent – doesn’t have to be TOTALLY opposed (ii) Oath/perjury (a) Under oath, subject to penalty of perjury (b) Person who swore stmt must have AUTHORITY to have the person placed at risk for perjury (iii) Proceeding, trial, hearing, depo (a) There was OPPORTUNITY for immediate scrutiny!! (b) If at trial or hearing, it was prob cross examinable! (c) Grand jury shit qualifies here but not in 804b1 3. B – Consistent Stmt – limitations can be HARDER to apply (i) Rebuts allegation of improper motive OR recent fabrication (a) (ii) Made before (a) Day 1 (b) Day 5 (c) Day 30 (d) Trial 4. C – Prior ID (i) Stmt of ID after W perceived (a) Pretty easy to meet (b) As long as testifying and cross examinable it comes in (c) ID made close in time to incident are more likely to be correct
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(d) During trial can be more suggestive – prior ID is MORE reliable than the in ct id!! D. NOTES 1. DAY CASE – prior stmt didn’t qualify bc not clear if person who admin the oath had power to subject W to penalty of perjury if he were lying 2. other cases – the police have in mind what they want yout o say – bc of that stmts at police station house do NOT get the critical scrutiny that they would get at trial, admin hearing or depo 3. RULE OF THUMB (i) What WONT qual – affidavit OR sworn stmt taken by a PARTISAN govt official (ii) If INS proceeding where person subject to deportation rep by counsel, looks like in proceeding where subject to type of scrutiny where more confident in relying on it for its truth 4. Why do we have so many limitations on prior insonsist stmts? (i) Assumption is that the jury is in the position to say if lying or not and then offer something INCONSISTENT – and they can rely on that being true – that is why so many checks on the reliability (ii) If you don’t meet ALL the criteria, still available for IMPEACHMENT bc not offering for its hearsay purpose – just to show that the person lied at one point!! (iii) Ex – 233 – woman whose skates were stolen, T said B took them, at trial T said A took them (a) The prior stmt is prior inconsist stmt – not ok under 801d1a but can still come in to impeach the witness (1) Matters if the situation presented by part 3 of the problem – in the sitch where no other evid that B took them, cant be offered for substance!! 5. USE IT FOR BOTH!! Impeachment and 801d1a if you can!! E. CALI Hearsay Exception – 1. MUCH BROADER  (i) 1235 – its an exception – evid of stmt made by witness if not inadmissible if (ii) Seems like any stmt for impeachment can also be an exception from H (iii) BIG difference (iv) E come in to prove truth of matter asserted that wouldn’t be admissible under FED rules (v) Doesn’t require to be under oath, etc F. MORE NOTES – CONSISTENT STMT 1. EXAMPLE -- Consistent Stmt – limitations can be HARDER to apply (i) Rebuts allegation of improper motive OR recent fabrication (a) (ii) Made before (a) Day 1 – DW -- the light was RED
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(b) Day 5 – Def – DW -- JOB (c) Day 30 – DW – the light was RED (d) Trial – Light was red (iii) Now impeachment by improper motive, only saying that light was R bc got job? (a) Only the first stmt, the one prior to the alleged improper motive, is admissible under this 2. TRICK – what if on X-exam the Ps atty says, isn’t it a fact that you have a TERRIBLE memory and you cant remember the color – this is impeachment based on inability to recall – so NONE of these statements is admissible under 801d – both admiss to rehabilitate (opposite of impeach) the witness but NONE is admissible for truth of the matter asserted!! 3. ANOTHER TRAP – what if on day 5 we have a stmt Light was GREEN by DW – now prior inconsistent stmt (i) X-exam, isn’t it fact that 5 days after accident you made stmt that light was green? This is IMPEACHMENT – which of the stmts rehabilitate? And DO THEY? NONE!! You already have him saying inconsistent shit, the fact that he switched story a couple times – doesn’t rehabilitate him! 4. If prior inconsist smtt – under fed rules (i) Can offer the other stmts that were consistent – they do nOT rehapbilitate - -don’t meet requirements of d1b – this makes the evid INADMISSIBLE for ANY purpose (ii) CALI – takes a diff approach – prior consist stmt, not made inadmissible if stmt is consistend with test at hearing and in compliance with 791 – on pg 371 – can be non H if admitted for purpose of impeaching (a) Cali legislature – jury should consider stmt true – 3 red v. 1 green – red it is G. EASY – 801d1c H. PROBLEMS 1. 10-18 – MUCK – slip and fall case (i) Is the prior stmt admissible? Yes – if its admitted can it be offered as impeachment (ii) Its INCONSISTENT!! (iii) 801d1a – assuming depo is under oath, should be admiss for BOTH!! 2. 10-19 – The Case – carrying attaché case – said it only had 2 pairs of socks and no papers at trial (i) If to friend said 2 secret docs can it be offerd for truth of matter asserted – NO – bc NOT under oath and ect – under FED rules, in cali it would be admissible (a) FED only for impeachment!! (ii) If prior stmt to police under interrogation? Prob wouldn’t qual as proceeding – not type of situation where objective scrutiny!! (iii) If prior inconsist friend is on cross exam can L test on redirect that he told wife 2 yrs ago that there were only 2 pairs of socks – \if attack
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3.

4. 5.

6.

on credibility is made on inconsistent stmt – doesn’t rehab his credibility bc he FLIP FLOPPED!! (a) In CALI this would come in to prove truth of matter asserted – 791a – if attack cred can offer any prior consistent stmt 10-20 – bobomeister – in commercial litigation about books kept by D company on cross exam asked if the figures recently created due to potential multi mill dollar J in this lawsuit (i) Type of attack on cred – RECENT FABRICATION on improper motive (a) B—hey I told my partner more than a yr ago that those were the CORRECT FIGURES (1) Prior inconsist stmt that predates the alleged improper motive and offered to rebut attack based on improper motive (2) Is it problem that hes testifying to his own prior stmt -10-21 – easily meets std for prior ID!! 10-22 – blind mans bluff – blind guy grabbed person that tried to pick pocket and holds him until cops get there – is policemens stmt admissible – he cant testify unless the blind man testifies too bc he has to be subject to xexamination 10-23 – K but bc of the rule its NOT H!! Prior stmt of ID!! admiss under 801d1C (i) Marv’s testimony – marv needs to testify about it unless indication that he will be called as witness!! He needs to be cross examined!!

1/30/06 801(d)(2) A. Own Statement B. Adopted Admission a. Silence b. Doyle v. Ohio C. Speaking Agents (Lawyers, Realtors, PR People, Translators) D. Employee Agents a. During Employment b. Matter w/in Scope E. Co-Conspirator a. Coventurer b. Pendancy c. Furtherance III. PARTY OPPONENT ADMISSION/STATEMENT – 802d2 A. Why admit this? 1. since D is party they can get on stand and explain away issues – opportunity for stmt to be clarified for the party against who its offered 2. doesn’t seem unfair to hold someone to what he said
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B. C. D. E.

3. in terms of reliability – stmt made before litigation is prob more reliable than a self serving stmt at time of trial Admission does NOT require that the party be ADMITTING anything Co parties are NOT opponents – have to ACTUALLY be opposing each other The D MUST be a party to the litigation REQUIREMENTS  1. Party admission/statement 2. offered AGAINST OPPONENT 3. AND  (i) Own Stmt (801d2A) (a) Personal knowledge not needed (1) Party can say he was making assumption, but he didn’t have personal knowledge (2) Here the requirement for personal knowledge doesn’t exist (ii) Adoptive Admission (801d2B) (a) Answer yes adopts any assertion in stmt person made (b) If says something or manifests intent to adopt stmt by another individual (c) Includes silence (1) Heard stmt (2) Would refute if not true (3) Serious accusation (4) Nothing prevents response o In context of the MIRANDA warnings – anything he says may be used AGAINST him!! o Encourages the D to remain silent and that bad things happen if he talks (d) Any time silence is ambig in ANY way you have a GOOD argument to have the ct construe silence AGAINST it being construed as an adoptive admission (e) PROBLEM arises with silence (1) Silence in certain circum can adopt stmt made by another individual (iii) Speaking Agent (a) Consider verbal acts (b) “House for sale, Barn includes X horses” (1) If limit to prove terms of sale – rely on verbal act, its admissible (2) If try to prove the barn contained the 2 horses, cant rely on verbal act, have to rely on speaking agent so u can go for TRUTH!! (c) EXAMPLE (1) Lawyer (2) Realtor
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(iv)

(3) PR ppl (d) Sometimes what speaking agents do amount to VERBAL acts (1) Need to figure out what you are trying to prove E’ee/Agent (a) During e’ment/agency (1) NOT after he was fired (2) Interests of the E’ee and E’er diverge after termination of E’ment but similarly aligned during the e’ment (b) Stmt re scope of e’ment/agency (1) If he sells manure and hes talking about tax evasion that would NOT count here!! (c) CALI – 1224 – what is the difference (1) Party’s claim is barred or diminished by some claim of duty on the part of the e’ee (2) Decl must be person on whom the liability is based (3) Decl must somehow bar or diminish the e’ers liability (d) Not ppl hired to SPEAK for you just ppl that you HIRE!! (e) MAHLANDT CASE – (1) Wolf case – girl found screaming in the wolfs enclosure – son told dad I think S bit her, he called supervisor and said I think wolf bit her o NO PERSONAL KNOWLEDGE o MADE TO EMPLOYER (2) Ct denied BOTH o Relied on the fact that they can testify and explain blah blah

(v) Coconspirator (a) Coconspirator (coventurer) (b) During (pending) (1) Must be made DURING the conspiracy!! (2) NOT post arrest!! (c) In Furtherance (furtherance) (1) Must be in furtherance of some object of the conspiracy (2) Cant just be a casual offhand remark made to a friend – has to FURTHER the conspiracy (3) Has to be kind of stmt on which it DEPENDS (4) Strongest degree of reliability (d) Can use stmt to prove the co-conspiracy by a preponderance of the evidence (1) Jury cant convict unless w/o a Rx doubt (e) NOT limited to criminal cases but civil cases TOO 4. PROBLEMS
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(i) 10-24 – B told me she intended to go to cotton club that night – to show she killed someone there (a) It IS her own stmt – not an issue that he is saying it (ii) 10-25 (a) Are facts asserted in testimony BINDING? (1) Pleadings made by atty are judicially binding (2) Stmts made by SPEAKING agents (b) This is diff than stmt in ct – you can contradict yourself under redirect examination (c) Most cts DO consider pleadings and any responses to discovery binding (d) Speaking agent can have BINDING affect and a party’s own stmt can be NON binding (iii) 1026 (a) Made after something found, personal knowledge is NOT a requirement (iv) 10-27 – accuse of robbing bank at card game (a) Could have just been messing around (b) Why was there a weak smile? (1) Important with silent admissions that you are in situation that u can rule out OTHER rational explanations for failure to contradict a stmt (v) 10-28 (a) Press sec spoke of alleged charges of company pollution – about sludge (1) Can they bring it? (2) Under C or D (3) Would prefer C bc PRESS SECRETARY – if speaking agent that is ALL you really need to know!! Easier to prove!! (vi) 10-29 (a) Acct’ant with SBP stated about throwing hazardous chemicals in the river (1) this is an ACCOUNTANT – this is NOT in the scope of her e’ment!! (b) DURING e’ment doesn’t mean on the clock, just means that they were still employed by the company at the time (vii) 10-30 (a) Driver at work collided with someone else – said blame on the phone was all her fault (b) Would use e’ee/agent – while she was still employed and was in scope bc shes driver – doesn’t matter that its not MADE to outsiders!! (viii) 10-31
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(a) Ds were siblings and co-owners and prosecuted for racketeering and mail fraiud (1) R was over heard saying we need to get swiss acct to handle the wire transactions (2) Admissible against both? Its her OWN stmt – admiss agasint her!! (3) Since they are both Ds (4) Co-consp o During course o In furtherance o Co-consp – need some independent evid of the coconsp but the stmt can prove the remaining parts of the foundation – during and in furtherance!! (ix) 10-32 (a) Co consp case again (b) Ms stmt against L and S (1) Consp no longer exists (2) No longer DURING and no way its in FURTHERANCE!! (c) Can use just against him if being tried separately F. DOESN’T DO CASES SEPERATEALY G. REVIEW PROVLEMS 1. 801d1 and 801d2 (i) 10-33 – wasn’t even in same room with G that evening (a) Can M be asked that stated in depo – with G only short time that evening (1) 801d1A – inconsist prior stmt – can be X-exam – prior proceeding (depo) (2) Can offer for the truth of the matter asserted (3) Can be party admission TOO – under 801d2A (b) What if M says later that evening he told his wife that G was at party and he only yelled hello and stuff from adjacent room (1) Prior consistent stmt – accused of recently manufacturing it (c) Looks like true classic hearsay – not consistent or inconsistent with testimony – doesn’t seem to be RELEVANT ID being made AMANDAS NOTES   HEARSAY EXCEPTIONS [FRE 803, 804]  FRE 802 says hearsay is not admissible  if it is hearsay, then try to find an exception  FRE 803 [23 exceptions]- declarant’s availability is irrelevant to whether the evidence is admissible  under what circumstances where the circumstances made?
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 





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

 in some circumstances, the stmts are more reliable than an in ct stmt so prefer that declarant NOT testify but to use out of ct stmt  FRE 803 exceptions are predicated on the reliability of the hearsay stmts, which are presumed reliable where there is little opportunity for fabrication, like if a spontaneous statement, or minimal incentive for fabrication [e.g., stmts made for the purpose of medical treatment or part of regular business records] 803- the fact that stmt was made while the event was occurring tends to make the stmt more reliable than if it were made at time of trial and thus stmt NOT excluded by the hearsay rule, even if the declarant is available as witness 803(1) – present sense impression is stmt describing event while declarant perceiving it or immediately after  timing must be immediate [10 minutes later is too long]  time elapsed so that declarant has had time to think about what say? if so, then not come in  subject: describe the event or condition  no commentary, but purely descriptive CA counterpart is much more limited [§1241]  allow contemporaneous stmts in but only to make the conduct of the declarant understandable; AND made while declarant was engaged in such conduct  must relate to or describe the declarant’s own acts  if the declarant is a bystander that sees defendant go through intersection, then it is out in CA b/c not engaged in such conduct, but in in Fed rules 803(2)- less of an opportunity to fabricate or modify b/c in such an excited state [exam: exclamation mark]  must be continuous excited state  while in continuous state then w/in immediate time  if excitement is revived, most courts say that not allowed in b/c during that period of time reflection probably occurred effecting his reliability of the stmt  regaining consciousness, if becomes excited immediately after wake up, then admissible b/c doing period of unconsciousness didn’t have time to reflect  subject:  stmt must relate to startling event or condition, and not just descriptive of the event  EX: pg255  not under 803(1) b/c an hour latter  issue as to the timing CA §1240  can be something the declarant perceives and must be something …  stmt that is a response to a question – calm enough to be questioned  no longer qualifies as a spontaneous stmt under CA or excited utterance under FRE 10-39
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

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

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 can testify under present sense impression b/c the timing is immediate [being made contemperously] and very descriptive so come in under 803(1)  fact that looking out window and can tell by content that describing something then usually shows personal knowledge 10-40  admissible under 803(1) but want to know what kerosene smells like, b/c 803 exceptions, unlike 802 exceptions, requires personal knowledge which is able to be satisfied w/ circumstantial evidence 10-41  1. 803(2) excited utterance  need to show that clerk was in an excited state  fact that clerk rushed over might show such state  relates to why person fell but doesn’t describe the fall [too broad] so doesn’t come in under present sense impression  801d2d- party admission made by an agent/employee  whether cleaning up floor is w/in his responsibility?  but could get in under that something would get in under clerk’s scope of employment  3. bystander might have repeated something that someone else said  when have an unknown declarant, have problems establishing personal knowledge  only witness hears is a stmt, doesn’t alone establish what bystander is seeing  so cts reluctant to admit evidence of an unknown witness  4. it is NOT hearsay b/c it is in court testimony and not an out of ct assertion***[trick]  5. not admissible under any 803 exceptions b/c too long  hearsay and inadmissible 10-42  saw it on lunch hour and 1 hr commute home was too long [assuming that she drove]  if she still felt agitated, then does show continuous excitement  so if can show that remained excited through 1 hour of commute  longer than a few minutes, then must look at current situation- is it one that requires care and attention? if so, then likely that still not in excited state 10-43  admissible as an excited utterance  also come in as a party admission?  D offering his own stmt so cannot be a party admission b/c not offered by party opponent  could probably come in as a presence sense impression AND as an excited utterance [yelled it and exclamation mark] 10-44
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 1. hearsay but state of mind exception  present sense impression b/c describing how he feels about something  FRE 804 [4 exceptions]- declarant must be unavailable to testify  is a rule of necessity- only admit the stmts where the declarant is unavailable [reliability purposes]  preferable to have declarant testify, but if can’t then want stmt in anyway

CLASS NOTES ON BOARD  803(3) o Then exciting emotional, physical or mental condition – NOT backward looking fact remembert or believed – UNLESS re D’s will  803(4) o Purpose. Med Diag / treatment o Describing past / present symptoms o If pertinent to diag / treatment  803(5) o Memo / recording o Re matter w/in D’s Knowledge o No present recall o Made while fresh o Accurate when made AMINAS NOTES  Non-Hearsay  Statutory ―Non-Hearsay‖ 801(d) Exceptions: o 803 – No unavailability requirement (23 exceptions)  Circumstances surrounding the making around these statements give adequate evidence of reliability  Statements made under certain circumstances are more reliable than in court statements  think better than putting D on stand  Focus -- trustworthiness o 804 – Unavailability required (4 exceptions)  Require declarant to be unavailable  Have circumstances that make statements trustworthy but not as strong  these are rules of necessity, only admit if impossible to put D on stand 1. 803(1) Present Sense Impression a. ―A statement describing an event or condition made while the D was perceiving the event or condition or immediately thereafter‖ i. Requires truly spontaneous statement ii. Calif – contemporaneous and spontaneous statement b. Looking for an almost real-time commentary; guarantee – no time to reflect
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c. Since made while event occurring makes it probably more reliable d. Timing issue  while occurring or immediately thereafter i. 10mins later too long, very strictly applied ii. Question – has enough time elapsed so D can have time to think about and change statement e. Content  limited to describing an event or condition i. no commentary on things that relate or bear to it, only describing f. Calif. Counterpart – Sect 1241 i. Allow contemporaneous statement while D engaged in conduct, only to explain conduct or acts of D  so even narrower than fed rules 2. 803(2) Excited Utterance a. RULE: ―Event relating to a stuttering event or condition made …ADD HERE!!! b. D is so emotionally wrapped up in what has seen or happened, cannot coolly reflect on what seen  less opportunity to change c. Emotional state  need excitement, and must be continuous i. Timing – people cool off; at different rates ii. Case where statement a girl raped was crying and moaning continuous, and statement made 75mins – high-water mark (Iron Shell) iii. Excitement revived – split by courts, most reluctant to admit, but some admit; issue whether time for reflection so as to change statement iv. Unconscious for a period of time – D was shot, unconscious for a week, woke up and saw newspaper with picture of shooter, and screamed‖ he killed me, he killed me‖  admitted v. Sect. 1240 – describe act, condition or event perceived by the D, made spontaneously while D in that …. 1. California is broader, allows events perceived d. Subject: statement must be ―related to‖ the event or condition, as opposed to just being descriptive of even or condition i. Exclamation point in facts, could be an excited utteranace ii. Example on p. 255: issue her is whether excited was continuous here by D hit by iii. Chase example: Slip and fall, statement that ―roller skate was sitting on sidewalk all day‖ – this statement does not describe the event or condition, so not admissible under 803(1) BUT can admit as excited utterance because it relates to the event or condition 3. Problems: a. 10-39: Hoops II – statement admissible as 803(1), timing is immediate, describes the event or condition. (made calmly, hints cannot be excited utterance) b. 10-40: Arson Redux – statement to her husband, ―it smells like kerosene around here‖ and then house caught fire moments later i. 803 requires personal knowledge, so need to know D knows how kerosene smells ii. Timing – statement alludes to present condition, ―it smells‖ present tense c. 10-41: Slip and fall
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i. Statement 1: Need to show clerk was in excited state, that rushed over could be 1. Statement ―relates to‖ why person fell, does not describe the fall so cannot be admitted as Present Sense Impression 2. Could also admit as statement made by EE/Agent (802(d)(2)(D)) ii. Statement 2: bystander, who plaintiff did not know, said ―look that man just slipped and his head hard on the floor‖ 1. if do not know this bystander, no personal knowledge, 2. hearing the statement does not establish that the bystander actually saw the fall, could have repeated 3. so cannot be admitted as present sense impression iii. Statement 3: in court testimony, since not our of court statement, not hearsay iv. Statement 4: out of court statement to his wife that his skid-proof shoes did not stop him from falling…; this does not meet timing, immediacy requirement  hearsay d. 10-42: So How was YOUR Day i. Saw accident during lunch hour, witnessed horrific car crash, left work early, commuted home for an hour ii. Statement when she got home that she saw a woman and two youngsters practically killed – problem with timing, could say not continuous excitement, so hard to admit under excited utterance e. 10-43: No Breaks i. Def statement to his wife, ―Honey, I have no brakes‖ is not admissible under 801(d)(2)  Party admissions have to be admitted by your opponents, not by party themselves ii. LOOK AT WHO IS OFFERING STATEMENT iii. But can be admitted under 803(1) Present Sense Impression, and even under 803(2) Excited Utterance if can show was excited f. 10-44: NY State of Mind – Bo charged of murdering Vince i. ―I like Vince‖ – statement shows State of Mind so not hearsay, ii. TBC, next class

2/3/2006 IV. ntroduction A. Exceptions – 803(1) and (2) last time 1. present sense exceptions 2. excited utterances 3. one might be more appropriate than the other…things to look at – TIMING (i) If sig time lapse forget present sense impression (ii) Type – if news reel type – present sense (a) Ex – cust who falls, garbage on floor all morning
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I

(b) If too broad to be present sense impression, look to excited utterance – (1) Has to be under emotional stress 4. 803(3) – state of mind expression (i) Emotion, sensation, physical condition (ii) State of mind (iii) W ills clause (a) Relates to the THEN EXISTING provision (b) Stmt bc decl – my head really hurts – can be admitted – as a stmt of then existing phys sens or phys condition – if the stmt were last week my head was hurting its NOT going to work (1) That is a PRIOR condition – not then existing (iv) R eason for the exception (a) Talking about something going on in their head or another part of their body but brain telling them that. (b) Consider the decl stmts as to emotion, sensation or phys cond as he is feeling them to be more reliable than they would be asking them about it later – how else do you know what someone is feeling? (1) More reliable than backward looking AND the only reliable source (v) CALI – backward looking stmt avail if the decl is NOT available (a) If the state of mind or whatever is at issue in the case!! (b) Unless its unreliable!! (vi) L ESS straight forward – the state of mind exception!! (a) If saying I am elvis – that is NON H circum evid of state of mind (b) IF saying I think I am losing my mind – that is NOT circum if used to prove that think or in fact is losing mind – that is H bc depends on the truth of the matter asserted – easily comes in under the state of mind exception!! (c) I think I lost my mind last week – that would NOT come in (d) BIGGEST PROBLEM (1) Stmt of future intent OR plan!! (2) I think im going to SB saturday– stmt of intent – can infer that did in fact go there say – direct stmt of state of mind – circum evid that actually DID go to SB o If say im planning on going to SB with J on sat – can use to prove J went to SB? That is the HILLMAN case  6 times went to ct!!  The insurance cos were fighting hard in this case – bc this cowboy named hillmon with
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insubstantial means got 20k life ins policy (one 10k and 2 5k ones) and shortly thereafter disappeared!!  Wife said he was killed in accident and ins companies didn’t buy it!! i. There were problems – H set out with a gut named B who signed affidavit and then disappeared saying the planned to defraud – Hearsay and not allowed ii. Other problem – body that was found – it was 5 inches taller than H and dental didn’t match but not insurmountable bc the Ps won this case in the end iii. Got to SC on the LETTERS – one by guy named W – who is the alleged actual dead body – to his sister and other to his fiancé  RELEVANT? i. He INTENDED to go to the place where death occurred WITH H ii. He DID go with H iii. Gave H an opportunity to kill W  SC issue – were the letter competent evid that W in fact went to CC with H i. Why wouldn’t he it was what he said he was going to do in the letters ii. Its not Hs state of mind – its Ws state of mind – H might not have such an intent!! iii. Allowing state of mind of one person to prove state of mind of someone else – doesn’t seem to have guarantees of reliability!!  What did the SC do? i. Stmt of intent of one person is competent evid of the intended acts of someone else (3) ADVISORY COMMITTEE NOTES ON HILLMON – o They left it undisturbed – while house judiciary said you cant admit for the thoughts of the 3rd party – not admiss as competent evid that H intended to go and that he went!! th (4) 9 cir in Pheaster Case –

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o Some guy named A promised to give him 1 oz free pot and NEVER came back and never found body but did find A and charged A with murdering the kid  The 9th cir approves admitting kids stmt not only that the kid intended to meet A in the lot but as proof that A did meet the kid in the lot  TWIST – trial occurred before fed rules of evid were adopted even tho opinion was after the rules in effect bc the TC decided before couldn’t use the new rules to decide  RULE – in situation where the decl is UNAVAILABLE then bc of necessity you can admit the stmts of intent to prove not just the decls conduct but as evid of the conduct of the invid with whom the decl intended to meet (5) SHEPARD CASE – o Limitation at issue – limitation in the fed rules that stmt of then existing blah doesn’t include stmt of memory or belief to prove the fact remembered or believed – o STMT at issue – victim -> said Dr. S has poisoned me  Tried to get it in as dying decl!! Didn’t work  Existing state of mind – she thought she had been poisoned – stmt of her belief that a fact had occurred i. If this could come in as state of mind exception it would swallow the whole hearsay rule ii. Most stmts of fact – are really stmts of belief iii. Ex – boy its HOT today iv. Could get in all kinds of factual assertions w/o check on reliability o RULE – backward looking stmts of belief or opinion OR then existing cannot come in to prove a fact rememberd or believed –  if somehow the belief is relevant then can come in circumstantially!! o If you can show her belief was relevant – weird behavior and that was at issue – that would be circum evid of state of mind o What she thinks has NO bearing on if he poisoned her except the factual assertion of her belief
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o Not reliable and state of mind is not otherwise relevant so the stmt is inadmissible as Hearsay! (6) Not admiss UNLESS the fact remembered of believed relates to the execution, revocation, identification or terms of decl’s will o Stmts made by testator are much more likely to be reliable over ones made by ppl fighting over shit!! o When will at issue and stmt relates to…….term etc then its coo to use (vii) P ROBLEMS  (a) 10-44  ny state of mind b charged with murdering v in ny and w test for defense…staets with convo with B one week before V disappeared B stated (1) I like Vince – if he liked him he likely killed him – so its ADMISSIBLE under 803(3) – exactly the kind of stmt they let in (2) As a matter of fact V was my best friend LAST YR – not a THEN EXISTING stmt – its BACKWARD looking – inadmissible!! (3) I think Ill pay V a visit tom to tell him how I feel – this is an INTENT to do something – not any diff than going to CC  shows that hes planning to visit V – no question that you can admit stmt of present intent as circum proof of your future act – admiss under 803(3) (4) Vince told me, B im going out of town in a couple days to go fishing with F – this is like hillmon – saying what V told him this makes it DOUBLE H – Bs out of ct repetition of what V said! o DOUBLE H – can still come in if you have an exception that works on BOTH levels!!  V said – that IS admiss as his state of mind and his intention BUT questionable if its admiss to show that F inteneded to go – just point out that it’s a Hillmon issue – come to conclusion however you want – Hillmon shouldn’t be broadly construed is HER opinion!!  Bs repetition of Vs stmt – H exception that covers that is needed – there isn’t one!! So too bad  If for other side – Bs stmt admissible as a party admission – doesn’t work bc W is a defense witness and party admissions are only
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admissible if offered against the party opponent – offering against B and its his stmt – person offering testimony has to be opponent!! (b) 10-45  Who shot JR? HH charged with attempted murder after allegedly shooting and seriously injuring JR – a govt witness testified about events when JR shot  (1) JR told me he was going to Hs house that night to drink beers o Shows his intent to go -- decl future intent  803(3) (2) JR told me he had visited H for the three previous nights as well o No – backward looking stmt!! (3) JR said hes feeling kind of depressed and that his head hurts o Then existing physical and emotional condition – admiss – 803(3) (4) JR said he had twisted his knee the week before in football and wanted to know if I had any aspirin or pain reliever to give to him o Injury occurred prior week – can infer that its bothering him but he didn’t actually say that (c) 10-46  B charged with killing D and she says mistaken ID (1) D told me on June 12 that he and B were going to meet at the CC that evening o This is like HILLMON – admiss to show Ds intent if you take the NARROW reading of H – then can show that D went but not that B went!!

2/6/06 CLASS NOTES  803(4) Medical Statements o Purpose = diagnosis / treatment o Describes past / present symptoms o If Pertinent to diagnosis or treatment  803(5) – Past Recollection Recorded o Memo / Recording o Matter once w/in the Witnesses Knowledge o No Present Recollection o Made While Fresh o Accurate When Made  803(6) Business Records o Business Record
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o Made at / near time o By / From person w/ Knowledge (person within the business) o Of Reg Conducted business activity + Reg Practice to make record (business keep these records in order to survive) o Person familiar w/ record keeping o Unless not trustworthy (if the record is prepared in anticipation of litigation)

I. 803(4)-(7) A. 803(4) – Stmt Made for Purpose of Med Purpose/Treatment 1. On Board (i) Purpose = med diag or treatment (a) Can even be diag of expert who is diagnosing for purpose of testifying!! (ii) Content: med hist, past or present or present symptoms, pain, sensations, cause, etc (a) Can include backward looking stmts (iii) If pertinent to diagnosis or treatment (a) MUST be pertinent!! 2. WHY ALLOW (i) Likely to be accurate, wanna make sure correctly diagnose and treat (ii) Patient is in best position to know what hurts and when it started (iii) If there IS a question, the person is OFT available to testify about it!! (iv) EX – I hurt my back when ASSHOLE broadsided me when ran red light (a) 2nd part can come in to prove that it got hurt in car accident (b) HOW she got hurt is pertinent to the diagnosis bc based on how it happened might be diff things to look for (c) Cant use it to show guy is ASSHOLE or that he ran a red light!! 3. OLD CL RULE – (i) Didn’t allow PAST symptoms or cause/inseption of symptoms 4. SIG difference with CALI – (i) Stmts for med diag and treatment – limited to stmt made while kid under 12 to prove child abuse OR neglect!! (ii) BUT, cali version of state of mind DOES allow backward looking stmts (iii) Cali case in SC now – the US SC has cut back under confrontation clasue the ADMISSIBILITY of these kind of stmts 5. Both Cali and Fed – (i) To degree that offered in CRIM cases especially involving child abuse, neglect and domestic violence can undermine admiss under confrontation clause!! 6. If DECL yells out in pain ―My back is killing me‖ which admissions apply? (i) Present sense impression – state what perceive as perceived (ii) Excited Utterance
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(iii) Stmt of present condition (iv) Stmt for purpose of med diagnosis/treatment 7. Stmt made under this do NOT need to be made directly to a doctor 8. when it comes to MULTIPLE hearsay – works at all levels here if all ppl are making stmts for purpose of med diag or treatment for benefit of ONE person – 803(4) should work to permit that 9. PROBLEMS  10.10-45 who shot JR on 258 (i) I hurt my knee in touch football game do you hae asprin to give me? Looks like hes SELF treating and this is a HIGH water mark – wont come in in MANY cts (a) Arg worth making but in more cts than not wont be successful (b) Based on rationale for rule exception doesn’t apply 11.10-47 – Food Poisoning: S became sick, transp by ambulance, managed to say she started feeling dizzy and faint when she had lobster at rest, sure it is food poisoning bc the chefs are careless!! (i) What would come in – feeling DIZZY and FAINT!! What about that she felt it after eating lobster at earnies – important WHAT she ate but WHERE she ate it doesn’t matter – nor do the careless chefs and the undercooking admissible (ii) Allowed – for how she is feeling and cause/inception of her feelings 12.10-48 – fam sat around and dad told mom that kid has bad cold and needs medication (i) If to prove that kid had bad cold at that time then  can argue both ways (ii) Stmt for purpose of treatment and father has interest that kid is treated appropriately BUT its self treatment rather than by med personnel AND its over the counter and so not significant consequences if take wrong thing 13.10-49 – child abuse – J told mom about all things the baby sitter did to him and mom took him to dr and he described sex acts which baby sitter performed (i) Are they H to mom OR to Dr? (a) BOTh – cts treat child stmt of pain and symptoms to parent as exception to H – made by child for purpose of med diag/treatment even tho the kid doesn’t know and the mom repeating it is also for med diagnosis and treatment (b) What is the problem of the childs stmt to mom and her repetition to dr – (c) How much of the stmt is going to come in? the acts that were done to the child – the person performing them ISNT pertinent to diagnosis/treatment!! (ii) In MOST Jx – the gen cause or inception is FINE (what began the injury) BUT the ID of the attacker is NOT pertiment for med diag or treatment! (iii) How cts fudge – kid needs to be treated and id of the perpetrator needs to be known for him to be treated
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(a) For young kids bc of the traumatic consequences to the kid!! B. 803(5) – Recorded Recollection 1. On Board (i) Memo or recording (a) Writing or tape recording (ii) Matter once w/in Ds knowledge (a) Something the witness actually KNEW at one point (iii) W cannot recall (iv) Made while fresh (v) Accurate when made 2. REALLY VALUABLE HEARSAY EXCEPTION 3. REQUIRES THAT THE D BE TESTIFYING!!! (i) OPP FOR TRICK QUESTION – IF DECL NOT TEST THEN CAN’T USE THIS EXCEPTION (ii) THE DECL IS ALSO THE WITNESS 4. HAVE to have the DECL on the stand to meet all the requirements!! Bc they need to testify as to made while fresth and accurate when made 5. this is STEP 3 at trial (i) step 1 – ask question (ii) step 2 – under 612 – try to refresh the witnesses recollection (a) 90% of the time the w will remember (iii) step 3 – laid the foundation and their memory is dead, now can offer their own memo or own recording and you lay the foundation!! 6. LIMITATION (i) Can play recording for jury or read it aloud – writing doesn’t come into evid UNLESS the other side wants to offer it!! 7. how do we know reliable? (i) Since laid foundation that their memory fresh when recorded it, less likely to fabricate and they are on the stand and can be cross examined!! 8. CALI provision is BASICALLY the same 9. PROBLEMS  10.10-50 – WALK THROUGH IT!! (i) Is asking what number was H? is it an assertion? What if it was what number given to call for drugs (then might be assertion); JANE is on TRIAL, its JANE’S stmt!! If an OPPONENT is offering the Defendants stmt it IS admissible!! 801(d)(2) – partys own stmt being offered against the party!! (ii) Paper with number showed to opposing counsel and then showed to the witness – can you please read it silently to yourself – objection, once cant remember counsel cant pursue further – this is ABSOLUTELY wrong!! (iii) Offer exhibit 8 for identification purposes – HAVENT shown that made while it was fresh OR that it was accurate when it was made (iv) Reoffer – going to come in
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(v) Can only be given as exhibit – the OPPONENT of the person OFFERING it is the one that can get it in!! 11.10-51 – HURRICANE – Ss house had damage, some was ruined personal prop and coundt remember amt paid – he didn’t remember but used ledger book (i) How much did you pay? I have no idea…use ledger book to refresh— (ii) Book itself cant come in but you can have him or atty or ct can read the pertient parts to the jury!! (iii) C. 803(6) – Records of Regularly Conducted Activity 1. On Board (i) Business record (a) Broad defn, non-profit works as well as for profit (ii) Mate ―at or near time‖ (a) Of the event being recorded – helps with reliability (iii) By/transmitted by person with knowledge (a) Someone in the bus that has pers knowledge of info recorded in the document (b) Has to be someone in bus – no control over reliab of stmt made OUTSIDE the bus!! (iv) Regularly conducted business activity (a) PALMER case – RR accident and it was accident report – the RR is NOT in the bus of having accidents –not trustworthy (v) Regular practice to record (vi) Custodian/foundation (a) Amdned to permit a CERTIFICATION – a 2nd level of H – a cert stmt by custodian that meets req for authenticity!! (b) Don’t even need to call a live person anymore (vii) UNLESS not trustworthy (a) There is presumption if you satisfy all its admiss UNLESS can show in this case its NOT trustworthy (1) Palmer case is an example of that – following accident stmts taken of ppl involved in accident but looked like it was with an EYE toward litigation!! (b) To admit something like RR stuff – has to show there is safety office trying to prevent accidents in an accident prone industry 2. Avoids calling 30 ppl from company – efficiency driven rule in some part 3. RATIONALE (i) Bus needs to keep records in order to survive (ii) Record of MFG, sales, invoices, receipt of payments, etc (iii) UNDERLYING – bc the bus need to rely on records for OWN survival, they are likely to be RELIABLE!! (iv) Bus have in place internal controls to ensure reliability blah blah 4. DOESN’T have to be a LEGAL business!! 5. FOUNDATION – for admiss of this evid!!
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(i) See page 260-261 6. PROBLEMS  (i) 10-52  S caught prowler trying to get in back and sent message to dispatcher who contacted someone and then a secretary typed up the report; S examined scene and took stmt from supermarket owner and those were put in Ss report…can all be admiss (a) The stmt by the supermarket e’ee – is there a problem here? Person who has the personal knowledge (the supermarket employee) is NOT employed by company and no check by sec company on his reliability – everything else presumably would come in!! (ii) EXAMPLE  (a) Patients stmt doesn’t qual only the nurses notations – patient is OUTSIDE of ths shit – piggyback the 803)(4) exception on the other one of the hosp record and then it can come in as bus record and there is exception that works for every level of H – this means that D. 803(7) 1. a rule she doesn’t think is necessary 2. admitting lack of record to prove non existence of the record (i) if you have a records custodian who is testifying and ask if seach for records of sale to ABC Co on such and such date – did you find record? NO – is that even HEARSAY?? (ii) What is the out of court assertion – there isn’t ONE!! Its NOT H!!! 3. Couple of cts had considered it H since person had to look at records with assertions and allowed H to sneak in thru back door (i) This rule was put in as the last nail in coffin to those who thought it was H (ii) Even if it were H, which its not, there is NO obstacle to having them testify that they looked and didn’t find certain record 2/8/2006 CLASS NOTES  803(8) o A. Record of Agency Activity o B. Matters Observed  Pursuant to duty  Duty to Report  Lawsuit limitations in criminal cases o C. Evaluative Reports  Investigation pursuant to legal authority  UNLESS – not trustworthy  Criminal Limitations
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 UNLESS – Only Against Govt E. PROBLEMS  1. 10-53 – Hipnote Law School -- registration forms of students…blah (i) Anyone can lay foundation for bus record as long as they have personal knowledge of the procedures (ii) Objection on 2 grounds (a) It DOESN’T matter that witness doesn’t know who made record as long as hes familiar with the recordkeeping process (can lay the foundation) (b) Explanation of recordkeeping procedures is lacking!! 2. 10-54 (i) Not rec of reg conducted bus activity – doesn’t rely on its own bus success (a) Not same as type of record that is rel bc bus relies on it for its existence 3. 10-55—P sues RR after train runs over foot (i) RR has report by engineer about the accident Hopefully they ARENT in the bus of having accidents – (a) Palmer Case – HUGE issue in here – is this accident report made for bus reason or in case of litigatin? (b) Accident report oft seen that primary purpose is help in litigation!! There is a MOTIVE to try to get the records made in an UNRELIABLE way – trustworthiness is going to keep it out!! (ii) P offers report of PHYSICIAN who eval her injuries to test at trial (a) Is DRs report a BUS record? Most of the time med rec are going to be seen as in the reg course of business (b) Might there be prob with TRUSTWORTHINESS? It was made for purpose of preparing for the trial!! (c) Phys records oft accepted but those that are to test at trial if offered by person who hired physician then its not trustworthy (iii) P offers HOSP report prepared by emergency room of hostp diagnosed with severe shock and foot injury (a) Bus record – no problem of having it prepared for trial since it was created in emergency room (b) Appears like it WOULD come in!! II. Exceptions Continued  A. 803(8) PUBLIC RECORDS 1. JUSTIFICATION (i) Necessity – stronger than on reliability (a) Its routine so not memorable (b) Govt e’ees tend to turn over at a more rapid rate (c) Less disruptive than pulling govt e’ees out of their jobs to come testify
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(ii) w/o it hard time proving some of facts recorded in these docs (iii) Adv Com Notes (a) We feel pub e’ees fulfill the public trust/duty by carrying out jobs with UNUSUAL care (b) Repetitive nature tends to make it more likely that they are MORE accurate 2. OTHER STUFF (i) Cant offer police report in CRIM CASE – why? (a) To make sure officer comes to ct and the D has the opportunity to face him (b) Otherwise would allow trial by police report (c) Limitation driven by confrontation clause and the 6 th (d) Require the cop to come testify!! (ii) Where witness test – if used to replace absent memory you DON’T have an issue (a) Cant come in w/o witness but can if the witness testifies (1) Admiss under public rec, past reccolescion rec, admiss hearsay blah blah (2) Regardin B – get someones notes (iii) C – evaluative reports (a) Can admit in any civil action and proceedings against govt in crim case (b) Unless lack of trustworthiness (c) CALI doesn’t include in its PUBLIC RECORD exception (d) CONTROVERSEY (1) What is a FACTUAL FINDING? o There isn’t a firm line btwn what is fact and what is opinion o Factual finding is the opinion of someone who has completed and investigation (e) Some cts draw distinction (1) What about things that are ACTUALLY labeled opinions (2) Rainey case – instructor and trainee died in crash – in factrual findings – finding that power roll back in the engine – Ps wanted that in!! Opinon – stated that even so PILOT ERROR was the likely result of the crash and the Ps didn’t want that in o The ct allowed the opinion o Don’t need to worry If just opinion – now need to argue LACK OF TRUSTWORTHINESS (f) Lack of TRUSTWORTHINESS (1) Look at person who did the investigation and their qualifications (2) What kind of support for the conclusion
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(3) Make sure when collecing records – final report NOT draft report o Bc drafts can change DRAMATICALLY (4) Based on personal knowledge?? (5) Look for bias – is there institutional balance? Litigation when report created? o Any hearing at all held? 3. ON BOARD  (i) (A) Activities of Agency (a) Routine Matters (b) No crim restrictions (ii) B – Matters observed (a) Duty to observe (b) Duty to report (c) Crim restriction (iii) C – Evaluative Reports (a) Factual findings (b) Opinion (c) Crim restriction (iv) Cal does not permit 4. Admits records more broadly than the bus records exception (i) Divides into 3 different parts (a) Public offices or agencies is ANY arm of the govt – but is MUST be public office or agency!!! (b) Divides into 3 categories – (1) First is ACTIVITIES (2) Second is MATTERS OBSERVED o Exclusion that cant offer in crim (3) Third is CIVIL ACTIONS and proceedings against govt in CRIM cases o Factual findings unless not trustworthy o NOT included in CALI!! B. 803(9) Vital Records 1. Like public records 2. source outside agency is ok (i) why don’t qual as public records 3. if at county hosp – public rec exception might work 4. oft the info in them have as their source personal knowledge of smoene NOT employed by the govt C. PROB CONT – 1. 10-54 – 4-6 (i) 4 – rainfall record from National (a) admiss under 803(8)b – matters observed!! (ii) 5 – train engineer given breathalyzer –
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2.

3.

4.

5.

(a) Accurate? (b) Part of decal that says its calibrated at the certain time – this is 803(8)b – any problem admitting it here? It’s a CIVIL case so NO problem!! (1) If being sued for crim neg then would be problem with the factual finding part bc cant use it o Calibration wouldn’t be problem unless it was law enforcement personnel who did it (iii) 6 – fingerprints on whiskey bottle under engineers seat – ssume public e’ee (a) 803(8)c -- FACTUAL finding!! (iv) 7 – ICC report contain concl that engineer was at fault (a) How was it created? Admiss under Beech unless NOT TRUSTWORTHY!! (1) Appears in subpart C but construe to apply to ALL of the parts of it!! 10-56 (i) exclamation points – (ii) double hearsay (a) report can come in as public record (b) to get the buystandards stmt it has to satisty shit to H rule 10-57 – OSHA case nuclear power plant (i) Admiss in suit by e’ees? (a) Trustworthy is NOT problem (ii) Birth cert (a) Vital rec exception (iii) OSHA or birth cert if offered in CRIM action against power plant E’ees (a) Vital records WILL come in!! Don’t tend to be accusatory in nature (b) OSHA report – problem – ppl concluded it was neg should be in ct so can be subject to cross examination 10-58 – Chemist – look at drugs – cant come in can use report? (i) Illegal narcotic – def not case against govt – prosecution wants to use it – can be held out bc of crim use shite – its govt lab!! (ii) If it was non goct lab -- would read 803-8 to cover bus records – in order to avaoid confrontation clause ISSUe!! 10-59 – Which admiss as bus rec? (i) Merrill Lynch credit report (a) YES – assuming that is what they are in bus of doing (ii) IBM exec’s daily appt register (a) may have personal shite in there (b) Depends on how its prepared – reg conducted bus record? (c) Need to show fits more as bus record
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Letter sent by exec to bus associates (a) Reg conducted bus? (b) If sent to try to get to buy product and its advertisement then it MAY be!! (iv) Bank tellers list kept by same bankteller maintained on weekly basis (a) YES (v) Bank tellers GROCERY list (a) No, its NOT bus record!! Bank not in bus of bying her groceries (vi) REGULAR notes by reporter (a) Yes if that’s what is usually done (vii) Occaisional notes by radio talk show host (a) No – its OCCAISIONAL (viii) Invoice rec’d by customer of Auto King for 4 new tires purchased by cust (a) What do you need to know? 2/10/2006 III. Don’t need to know about the CALI minor exceptions!! But we DO need to know the MAJOR cali exceptions that she mentioned before!! A. 803(11) 1. Contained in REG KEPT RECORD of RELIGIOUS organization 2. Some COULD be admiss under Bus Rec exception as well!! (i) SIG DIFF – 803(6) req source be e’ee or part of bus and no such exception in 803(11) (a) Baptismal cert – info can be provided by rents and still qual under 11 but NOT under 6!! They are not PART of the org as an e’ee 3. RELIABLE – not much motive to falsify this kind of document B. 803(12) Stmts of FACT in CERT that the maker performed marriage or something eles…clergyman, public official…blah blah…by relig of public org allowed to perform such act 1. Similar 2. Offer stmt of fact – J married Hunchback Mary – can use stmt that hunchback – allows to prove ALL facts asserted in doc 3. Bus and Pub records can apply 4. BUT, source of info can be outside of entity in this rule and not other rules 5. this rule is BROADER than 803(11) – covers the ASSERTIONS in the docs – but same source of info! C. 803(13) – FAMILY RECORDS – family bibles, genealogy, engraving on urns, tombstones, etc. 1. Inscription can be admitted to prove date of birth or death 2. probably the OLDEST recognized H exception 3. RATIONALE –unlikely that going to lie there so accuracy is high D. 803(14)prove fact rel to prop dispute
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(iii)

E.

F.

G.

H.

I.

1. contemplates admission of rec of doc to estab or affect interest in prop 00 deed rec in county ct house and THAT is being admitted, what is recorded there!! 2. can be admitted to prove – can show for ex that deed was rec certain day – to show prop trans on or BEFORE that date 803(15)prove fact rel to prop dispute 1. admits the ACTUAL doc that affects a property interest 2. can admit the deed to prove facts contained therein 3. if showed that F got BA by operation of Js will – this can be admitted to show land was transf by operation of deed 803(16) ANCIENT DOCS – 20 yrs old 1. gotta prove its what it purports to be – able to be admitted to prove whatever it asserts 2. justifications for this  (i) unlikely that content of doc at least 20 yrs old – unlikey cooked up for litigation now – happened SO long ago (ii) hard to get alternative evid sometimes!! (iii) 803(17) Market Reports 1. relied upon in industry 2. telephone directory…etc 3. RATIONALE (i) Widespread circ (ii) Heavily relied upon (iii) Pressure to ensure that they are ACCURATE!! (iv) 803(18) treatise 1. require that A witness test but need not be DECL 2. can only use it in connection with an expert witness or someone giving opinion 3. Admiss as impeachment or to bolster their conclusion!! 4. blah blah – contradicts or corroborate the dr opinion 5. cant just send treatise to the JURY room – if you do use it you can read rel portion into evid but that is all 6. need to setabl that it’s a treatise blah or have expert confirm REPUTATION 1. 803(19) Personal or Fam hist (i) Evid of rep of fam member among fam members (ii) 2. 803(20) Boundaries, Gen hist, or customs (i) 3. 803(21) Xs rep in the community (i) Rep of X as a violent person (ii) Everyone in community thinks X is violent person (a) Do u even need H exception? (1) Depends on what trying to prove!!
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o Why did Y feel it was necessary to use deadly force toward X  Why someone else acted toward X they way they did i. NOT for the truth of matter asserted – affect on the hearer!!  What people think about X? i. DIRECT evid of STATE OF MIND!! 803(3)  What kind of person is X? i. Need it when offer the TRUTH of the rep itself – need this exception 803(21) (iii) May not need this exception – (iv) Oft do – if person was or was not likely to commit type of crime (v) Only deals with the H aspect – pretty easily!! (a) HOWEVER – character evid rules impose a LOT of restrictions on this type of evidence!! J. PRIOR JUDGEMENTS 1. the judgment itself – may not need it its public record – just of guilt or innocent to impeach someone – comes in as a public record and don’t need exceptions 2. 803(22) felony conv as evid to prove facts essential to sustain J (i) Goes beyond convicted of bank robbery – lets say its ARMED – if armed one of facts essential is that he had a weapon – can admit to prove that he had weapon at time of robbery assuming its relevant!! more than just conviction, but prove facts essential to conbviction (ii) Has to be FELONY (iii) Cant be conviction based on Nolo Contendre (a) Im not going to contest it – facts are NOT estab – J not rel of evid of facts (iv) Misdemeanor – don’t allow bc they may not be vigorously litigated (v) Rationale – we think the Js are reliable as proof of facts essential to sustain J bc in felony WOULD be vigorously litigated and found by proof beyond Rx doubt (vi) LIMITING LANG (a) See highlight part on 275 (b) What restricting? (1) What if charged with possession of stolen prop and want to offer J of conviction of person alleged to have stolen the prop? This restricts that (2) Driven by confrontation clause – D has right to cross examine blah blah (3) If its someone elses conviction and that person isn’t test there is no way for him to test that evidence
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IV.

(4) Limitation applies if you are offereing evid of someone elses conviction to prove something OTHER than impeachment!! 3. 803(23) J as to pers, fam or gen hist, or boundaries (i) So long as any matter asserted in J are essential to be proved to obtain J can use this (ii) Usually used to prove divorce (iii) J that so and so owns prop – blah blah (iv) Assumes that these kind of matters are carefully litigated and are reliable PROBLEMS A. 10-60 1. NYC finan page with the open and close prices – admiss under 803(17) (i) MARKET report – AC NOTES mention this specifically 2. NYC phone directory – admiss under 803(17) B. 10-61 – on cross exam of expert witness question passage from authoritative treatise which indicates that D selected improper equipment 1. H but admiss under 803(18) – needs to be estab as authoritative treatise – expert or equal and opposite expert can estab that C. 10-62 forgery…character witness about his rep 1. 803(21) D. 10-63 -1. was it public record?? 803(12) 2. 803(15) is it even H tho? If just show name of person to whom trans – act of indep leg sig 3. family bible regarding marriage – 803(13) 4. 803(13) – might be prob with having witness testify about what the tombstone says – need to bring in photo of it E. 10-64 – newspaper article 1. if ancient doc it would come in 2. assuming its not --

2/13/2006

CLASS NOTES  Privilege  Refusal  No Memory  Death / Serious Illness  Absence / No Deposition 804(b)(1)  Unavailable
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 Testimony depo / prior proceed  Against same party w / similar motive / Opportunity (or) (CIV ONLY) o Against predecessor in interest w / similar motive / opportunity I. Rule 804 A. D has to be UNAVAILABLE!! B. 804a 1. Privilege (i) STEPS (a) Put witness on stand (b) Witness invoke privilege (―That’s my hubby, spousal immunity‖) (c) Ct has to find that the privilege keeps them from testi (ii) Special CRIM CASES RULE (a) B/c the D has 5th am priv to not testi and not good to say it will incrim me, if you are prosecutor you don’t need to call D to invoke priv (b) Presumption exists that the D would claim the privilege and is therefore AUTOMATICALLY unavailable!! (c) What if crim defendant wants to use his previous testi instead of testifying – its his own fault that he cant testi – end of 804a  a decl is NOT unavail if the exemption…is due to procurement of wrongdoing of the proponent of the stmt for purpose of preventing witness from testi (1) Prevent crim def from using his own prior testi (2) His assertion of 5th is his OWN procurement of his own unavailability (3) Why would crim D rather have depo transcript than to get on stand to testi in front of jury o Maybe bc not x-exam very well before and skurd o 2. Refusal (i) STEPS (a) Have to call witness to stand (b) Witness has to refuse to testi (c) Have to ask ct to ORDER him to testi under penalty of contempt of ct (d) Ct has to order this (e) If persist to refuse to testi… (1) Declare him unavail (2) Throw in jail OR impose a fine 3. Absence of Memory (i) STEPS
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(a) Witness called to stand and x-exam or exam and ct can make determination if absence of memory is indeed absence of memory or just cleverly disguised and is only refusal to testi (b) If show that FAKING – declare that and go back to refusal steps (ii) CL – no recognized unavail due to this (a) Sometimes witnesses will conveniently claim to not remember and don’t want to be held in contempt of ct (b) 4. Death/Serious Illness (i) STEPS (ii) If Dead they cant testi (iii) What is SERIOUS ILLNESS? (a) Going to take a sig amt of time to recover (b) Something else here 5. Absence (i) Most complicated (ii) LANG (a) Unavail if absent from hearing and proponent of stmt unable to procure witnesses attendance (or if exception under one of the other 3 their testi by process or blah blah) (iii) ATTENDANCE (a) Can ct issue subpoena to force them to testi – if in area where ct can svc process then not unavail – have to try to subpoena (iv) PARENTHETICAL (a) Ds attendance or testi (b) If give opponent opp to blah – better (c) Additional hoop you have to jump thru – better than if the other 3 (v) Depostion alternative – only with absence from Jx – if seriously ill don’t have to try to go get deposition (vi) C. CALI – 240 has 5 things 1. Cali makes it clear that its NOT exclusive 2. Somethings not specifically listed (i) Refusal to testify – but cali case law does recognize that if refuse to testi hes not avail (ii) Absence of memory – but case law DOES recognize it 3. What it does say (i) Being disqual from testi – usually when someone incompetent to testi (ii) 2 diff provisions for absence D. 10-65 – S called as central eyewitness for the state – he sang when asked for name, in and out of mental hospitals…etc 1. FED -- lacks capacity to testi – unavail to serious illness!! 2. CALI – 240(2) – disqual from testi in this matter
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3. Assume full mental capacity and D gave him full expense paid trip to avoid blah blah and out of Jx at time of trial is he unavail? Proponent of stmt preventing the testi – procure unavail of witness cant say he is unavailable (i) Last sentence in 804a would preclude this from happening E. 804(b)(1) 1. On Board (i) Unavailable – 804a (ii) Prior proceeding/deposition (a) Testimony, not affidavits!! Must be TESTI!! (iii) Against same party with similar motive to develop (a) Civ Cases only – not restricted to the same party, can offer it if the testi offered against a ―predecessor in interest‖ who had a similar motive to develop testi on direct or cross or reexamination! (1) Classis Example – Trial 1 – W: the D was SPEEDING (testi for P and P wins) Goes up on appeal, rev’d and back to Trial 2 – can P offer the prior testi against the D? W unavail, testi in prior proceeding offered against the same D – YES, would have had opp to dev the testi and same motive since SAME case! (2) ANOTHER Ex – No trial but a DEPO at the beginning with same facts and dies after depo – can the P offer testi against the D at trial? Its coo assuming the Ds atty had chance to go to the deposition!! (b) Makes things COMPLICATED (c) Has to be offered against SAME party AND (d) Party must have had similar motive and opportunity to develop testi 2. RATIONALE (i) Usually NECESSITY (a) Bc unavail, makes it necessary for us to rely on H (ii) Indicial of RELIABILITY (a) Here, 2 out of 3 met – under oath and subject to cross examination (b) Reliable enough to be admitted into evidence 3. Need to be CAREFUL about this (i) Some Ct proceedings DO NOT have opportunity for opponent to develop blah – (a) GRAND JURY PROCEEDING – procecutor, ct reporter, jurors – no Defense atty EVER in a grand jury proceeding (1) Crim D NEVER has opportunity to develop grand jury witnesses TESTI (2) BLACK LETTER – can NEVER rely on former testi if offer witness testi in Grand Jury proceeding as former testimony exception 4. Predecessor in INTEREST –
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(i) HORNE CASE  Most liberal reading of ―predecessor in interest‖ she has EVER seen (a) 2 suits v. Corning (1) P1 v. Corning – D had expert witness testi and he became unavailable before the 2 nd trial o 2 completely different Ps (2) P2 v. Corning o Corning try to offer against P2, admitted against P1 (predecessor in interest) o Is a completely separate P with tot different interest a predecessor – the ct says YES!!  Most cts do NOT agree with this – usually predecessor in interest has to have SOME PRIVITY i. Trustee/Trustor, Parent/Subsid, etc  Similar injuries – exposure to same product – asbestos  Motive and Opportunity to develop?? (b) Highly criticized (1) Predecessor and intesrest AND similar motive and opp (2) MIN -- They combine – whoever It was had same motive and opportunity to cross examine (3) MAJ – no if blah blah th (c) 9 cir – privity relati required 5. Most commonly used!! 6. 10-66: Dr Hooligan – Steroids shit – grand jury example (i) Grand jury – exception – no suff opp for D to develop 7. 10-67: Witness for govt in homicide thing teslls completely diff story than in sworn depo (i) Is he unavail? NO, so cant get it in!! Can use it for IMPEACHMENT!! To offer for truth of matter asserted, what can use that would work? Prior inconsistent stmt under 801d1a!! if W gave prior inconsistent stmt under oath and is cross exam can admit to prove the truth!! (a) Can admit for impeachment and for truth of matter asserted (ii) Instead of chaning story, just unable to remember, serious memory problems and I forgot!! (a) Can he be IMPEACHED? Is it inconsistent enough? Prob not impeaching someone to show bc cant remember now but could before! (b) Prob wont come in as prior inconsist stmt – say former recollection is NOT inconsistent in sense that rules require under 801d1a

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(c) Other way to get it in? Try to refresh recollection, if doesn’t work, assuming he reviewed transcript of depo and adopted it can prob satisfy shite as past recollection recorded (iii) As former testi on behalf of the govt? not D but govt seeking to offer it – (iv) What if D didn’t cross – if not cross was there a similar motive? (a) Blah blah 8. 10-68: GRAND JURY – conf informant – implicate in consp to import firearms, grand jury test (i) NO CANT OFFER IT!! (ii) CAVEAT – forfeiture provision, if showing that D murdered W then he FORFEITS his right to say H!! (iii) Assume same as above except testi at grand jury and almost comically unreliable shite…admiss if offered by DEFENSE? (a) Govt had an opportunity – might be admissible (b) KEY – the witness was considered to be comically unreliably? Why want immunity? Doing something illegal…maybe something with prosecution blah blah – may not be motive to develp testi in that situation 9. 10-69: Peter v. Deiter – car accident…2nd case G who was in car blah – witness is missing (i) ISSUES – predecessor in interest?? Same party so doesn’t matter!! (ii) Unavail – absence – out of the Jx!! 10.10-70: F tried for Arson, W testi for prosec, subs F sues ins for losses caused by fire (i) Draw out the shite (a) US v. Fred (1) W against F (b) F v. G (1) G shows W died and offers transcript from arson trail against F (c) Civ case, less at stake so not similar motive to develop witnesses testi – not uncommon to see them refuse to apply former testi shite in crim case where before offered in preceeding civil case (ii) Answer?? 11.10-71: D charged with consp to dist drugs, co-consp testi offered, invokes priv against self-incrim – d then offers test of co-consp during guilty plea proceeding? (i) Is there opp for cross exam in guilty plea? Not usually (ii) Judge is the one that does shite – not in shoes of Prosec – not same blah blah (iii) Not opp or similar motiveF. Process 1. Is the DECL unavailable to testify?
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2. Look at other requirements

2/15/06 09/27/06 CLASS NOTES 804(b)(2) – Dying Declaration  (1) D is unavailable  (2) D Believed death imminent  (3) Re cause / Circs of death  (4) Homicide / civil case (CA – no limit) 804(b)(3)  (1) Unavailable  (2) Against percun / proper interest (or) subject D to civ or crim liab  (3) Reasonable person would not make unless true  (4) Corroboration?

I. 804 continued II. 804 b 2 – Dying Declarations A. ON BOARD 1. Unavailable (i) Don’t need to be dead!! Just unavailable 2. Homicide/Civil (CALI – no limit) (i) Any type of civil case 3. D believed death imminent (i) Most issues arise here!!! (ii) MUST believe death imminent (a) Has to be something you can point to to show that all hope is gone in Ds mind!! 4. Re cause or circumstance of impending death B. RATIONALE 1. Traditional – one would not die and meet his maker with lie on lips 2. Modern – powerful psychological forces if think you are going to die and likely be truthful, concerns cause of circum of fairly impending death and its recent so not likely that mistaken as to what is being said C. CONTROVERSIAL 1. Ppl might be hallucinating from drugs they are on – not too much steam here! D. Its her FAVORITE exception!! E. PROBLEMS
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1. 10-72 – woman said it was hubby who poisoned me blah blah (i) Did she think her death was imminent? (a) Nothing in here that indicated that she believed she was going to die 2. 10-73 – Gunshot wound from robbery – said who did it (i) ROBBERY trial – so no dice federally but in CALI it would have been ok (ii) Another EXCEPTION?? Excited UTTERANCE!! Look for EXCLAMATION points! (a) Under stress, exciting occurrence, stress continual!! 3. 10-74 – Hubby shot in sholder said who did it –says Dr can fix me up blah… (i) Doesn’t apply – call doctor to fix me up!! Didn’t think his death was imminent since he thinks hes fixable 4. 10-75 – Guy dying but miraculously recovered can use stmt of who hurt him? (i) Not unavailable – he is also SUING him!! Not a problem that didn’t die but problem that unavailable 5. 10-76 – Mystery death of person who at trial said I know kill me for saying this but…. (i) Grand jury testi – doesn’t go under former testi shite (ii) Problem was that he may have in fact believed he was going to be killed but there as no imminence – the stmt has to do with cause and circum of death about to occur (iii) NO DICE!! F. Backward looking at fact that contributed blah blah III. 804 b 3 – Against Interest A. ON BOARD 1. Unavailable 2. Against pecuniary, proprietary (property – body wouldn’t count) or penal interest (CALI – Social) – at the time the stmt was made!! (i) Where most issues arise!! (ii) In CALI – there is another one – if its against your social interest (like admitting you were REALLY fat or something) that works (iii) This is a tough one to show sometimes (a) If Drug Dealer selling coke says – I have 4 grams of COKE (for DD its NOT against interest it gets him business); if teacher says same thing it IS against interest (iv) Depends on CONTEXT 3. Wouldn’t make stmt unless true (i) Rx person wouldn’t make it unless it were true (ii) Don’t usually go out risking interest!! (iii) Need to know about context 4. (If D uses to exculpate must corroborate) (i) Not in CALI!!
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(ii) If the D in crim case is offereing stmt made agsinst Decl interest to exculpate the D (offering someone elses against interest shite) need corroboration (iii) Relates to first req – if the D is unavail, you cant prosecute them bc they aren’t around!! (iv) D can literally just make it up or get someone else ot make it up – inherent distrust for stmts offered to exculpate D bc usually admit guilt by the Decl and beyond reach of prosecution (v) Corroboration (a) As to reliability of Decl (b) Of the facts B. WILLIAMSON CASE 1. Very very narrow in what construes to be against interest – not a CONSTITUTIONAL decision (i) There are SOME courts where the VA cts construed the IDENTICAL provision in VA to be VERY broad! (Lilly v. VA) 2. Construction of rule not of const principle – ony for admiss of evid in fed ct!! 3. co-D comes up with 2 stmts (i) I transported cocaine (ii) It was W’s cocaine 4. Did lower ct err in admitting the entire stmt against W? Dist ct and ct of ap didn’t have problem with admitting – truthful frame of mind theory (i) SC did have a problem with it 5. O’Connor makes it clear – reliability only attaches to those stmts which are ACTUALLY against the decl interest (i) I transported cocaine – it works!! (ii) It was Ws coke (a) Admitting involvement – can be coconspirator (b) Shows guilty knowledge 6. Changed his story as to whose coke it was 7. THEORY – trying to save own skin at someone elses expense – POST ARREST – self help!! 8. did not come out and flatly say there is NO way the stmt qualifies (i) suggestion to lower ct that these kind of stmts are self serving –shift the blame! 9. likely the only thinkg going to come in is the initial I transported cocaine stmt 10.EXAMPLE (i) Co consp stmt pre arrest – party admission shite…blah 11.RULE – only those stmt that were actually against the Ds own interst at time the stmt was made are going to be admissible!! 12.Rule of thumb regarding the post arrest shite being self serving C. RATIONALE 1. D. COMPARING – 801d1 v. 804b3
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801(d)(1) – PARTY ADMISSIONS Party

Can be self-serving when made E. PROBLEMS 1. 10-77 –I own S&L – before it went down hill majorly (i) At time of stmt it was NOT against his interest!! 2. 10-78 –said odd stuff (i) Hey that’s the GG bridge I must confess I don’t own it (a) Not against his interest!! (ii) Confess that don’t own car, just lease (a) Cali might be against his social interest if wants to be in jag owners club – prob a stretch 3. 10-79 –the monastery – sets record straight that she paid lurch to kill hubby – in luches trial (i) Not used to exculpate – only problem when D trying to use it (ii) Enough that against her interest (iii) Might be against interest issue like in W – like against that she had hubby killed but the ID of who is not against her interest!! 4. 10-80 –boasting that best killer – in jail mind you – im the one that killed blah they are prosecuting wrong person (i) Sound likes her BOASTING – hes advancing some interest!! (ii) Since to exculpate – need corroboration!! (iii) Stmt wouldn’t make unless its true? Not sure try to gain respect maybe? 5. 10-81 –Chers hairdesser (i) Propritary interst –no – but can be if makes it clear that he is never going to work in this town again (ii) Against SOCIAL interest – this is def against social interest 6. 10-82 – (i) Maybe not against interest – maybe self serving bc hes saying acted in self defense!! (ii) 7. 10-83 – (i) Prof further – blah blah (ii) 2nd on3 – yes admiss – have to do anything first? (iii) Offerd by D to exculpate 09/29/06 CLASS NOTES 804(b)(4)
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804(b)(3) – AGAINST INTEREST Anyone – but must be unavailable Against interest when made – toughest one

 D is unavailable  Stmt re personal history or pedigree of D or close associate  Facts only (not motivation) 807 – Residual  No other exceptions  Circ guarantees of trustworthiness equal to other exceptions  Three Findings o Material o More Probative than other evidence o Justice is served  Notice 804(b)(4) – history of family OR very close associate A. ON BOARD 1. Unavailable (i) Person has to be someone that has ACTUAL knowledge 2. Family history/pedigree of D or close associate (i) 3. Facts only (not motives) (i) Cant say my Gpa married my G’ma to get status here – that is a MOTIVE...can just give fact that they were married B. RATIONALE C. PROBLEMS 1. 10-84 –what did your sis say was her date of birth (i) She doesn’t have PERSONAL KNOWLEDGE concerning that fact – cant possibly be aware of the day and date you were born – this is a DOUBLE hearsay issue!! (ii) Lax personal knowledge exception where the only source of sisters knowledge would be H – this is double H!! 2 out of ct stmts being repeated in ct but this rule works for BOTH levels!! V. 804b6  there is no 804b5 – its now 807 A. Prevents person that procured unavail of witness to object on H grounds – forfeiture provision!! B. EX – witness/victim unavail – dying decl – ct can find by preponderance that the D killed the witness and use that to admit stmt and they cant object to it!! VI. REVIEW problems A. 10-85 – S went to party to take break from work…last time anyone saw her was when she left the party. P charged with Ss murder 1. SUSAN: (i) going to liquor store admissible – under 803(3) – stmt of future intent under state of mind exception IV.
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(ii) intended to go with peter – HILLMAN issue  there is uncertainty as to how far the fed rules go – can def be offered to show what Seans future intent was but not reliable to prove what peters intent was – Hillman suggests you can admit the whole thing…not really clear! 2. SUASAN (i) Present something something – impression of what she sees as she sees is 3. Susan - -P said he left to go to sleep bc he was very tired (i) If offered by PROSECUTIOn can be admiss under party opponent (ii) If offered by DEFENCE (to give an alibi) it can come in – stmt of future intent – 803(3) (a) 803-3 – impression AND future intent allowed (b) 803-1 will only get you the tired part 4. Susan – Shawn knew blah blah dizzy spells (i) Medical diagnosis/treatment – she was seeking treatment or diagnosis for physical problem she is having (ii) Backward looking stmt so wont come in under 803-3 5. USE JUSTIFICATION FOR RULES TO GET IN OR OUT BY MAKING MORE NARROW OR BROAD B. 10-86 –SHEPARDS PIE 1. hands tingling – 803-3 – present physical condition, can also be present sense impression 2. dying declaration? Nothing in here besides she did die that she thought she was dying – 3. excited utterance – whole stmt – she is thinking back to how this happened so she had time to figure out how it happened…not something that she KNOws happened – stmt is speculative when it comes to Mr C. 4. EXAM – LIST ALL EXCEPTIONS THAT APPLY!! C. 10-87 – accident 1. hosp records – bus records 2. repair recors of car that crashed – regular maintained – bus records probably, make sure made and kept in reg bus blah 3. notes taken by one of parents re tortuous recovery of one – if parent aksed to explain what happened and he forgot what happened 4. weather records – business records? PUBLIC records – its not an evaluative report – the FF made by a public agency! 5. police report describing accident and its cause – civil so its admissible! 803-8 (restrictions are limited to crim cases) – trustworthiness? Evaluative reports can be excl if not trustworthy – can come in in civil case even if reaches a conclusion D. 10-88 – subcontracting shite in blah 1. unavail witness? 2. opposing party is the prosecution, can make arg that part of arg – not exactly the same party – DA is not same as congress… was congress the predecessor of
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interest…same motive and opportunity? Diff set of facts sso this isn’t going to work, not former testi exception 3. public record? Record but of tetimony E. 10-89 – A knownly lay dying – G killed F last month 1. dying decl?? 804b2 – doesn’t concern cause or circum of Ds own death 2. excited utterance – problem is – has to relate to startling event or occurrence and needs to be maintained that blah blah – have they maintained excited state since the murder a month ago? F. 10-90 –criminal trial, fraud charges 1. 804b3 stmt against interest – excuse why he didn’t come forward (i) Would he make it unless it was true – (ii) May come in as stmt against interes – against his penal interest G. 10-91 –Grand jury 2 1. can it be offered by prosecution not by defendant 2. cant be offred by prosec bc Def was not there 3. can be off by def if P had motive to develop the evid – not same motive as at trial as at grand jury look for PC and trial beyond Rx doubt (i) important for trial? 4. prosec can NEVER…. 5. Def – motive and similar opp to develop blah VII. 805 – DOUBLE HEARSAY A. H in H not excluded if each part conforms with an exception to H rule provided in rules B. EX -- ―I phoned my wife and heard a commotion. My wife said Harold was screaming that evan ran over his dog‖ 1. first half isn’t problem – wifes stmt is H, Hs stmt is H!! Double H!! 2. Wifes stmt – present sense impression 3. Harolds stmt – screaming – might be excited utterance C. Most likely to see double H any time a piece of paper comes into ct!!

VIII. 806 A. Provides that anything u can use to impeach testi W, can use to impeach a H declarants reliability B. One type of impeachemtn – impeach by prior inconsist stmt 1. shows W told 2 different stories – bears on what W said is truthful 2. if H statement by Decl – light red then light green – if admit one then can admit other to impeach it C. takes care of 2 little issues that come up with live witnesses that don’t arise when decl offer 1. live – inconsist stmt will ALWAYS be a prior stmt!!
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(i) Not necessarily ase with decl!! (ii) Clarify that stmt doesn’t need to be prior to H stmt offered in evidence just that it be inconsistent is enough 2. we have rule for testi witnesses – if going to be impeached must have opp to explain (i) don’t need to do this for H decl – no prohibition on offer inconsist just bc the decl is not in ct and doesn’t have the opp to explain IX. 807 – the RESIDUAL exception – catchall!! – think you have out of ct stmt that is reliabile and should be admitted and no exception that will do so A. ON BOARD 1. no other exception (i) no other exception that works that can exist!! 2. circumstantial guarantees of trustworthiness = to exceptions (i) Example – most common/almost exclusively – stmts made by young kids with sexual abuse (ii) Crawford use might eliminate use of this exception for that purpose (iii) Child oft describing that 4-y-o wiuld not be aware of unless actually experienced it (iv) Content of the stmt – couldn’t know about unless it actually happened!! 3. 3 findings (i) Materiality (a) Has to be material to the proof of the case (ii) ―superiority‖ (a) Has to be better than any other Rxly avail evid on the same point (b) Almost unavailability req bc their incourt testi would be superior to out of ct stmt (iii) Justice (a) Has to be in interest of justice to admit stmt (b) She thinks it doesn’t add anything 4. Notice (i) Not hard and fast time table driven rule (ii) Opponent of the H evid has to give enough notice to be able to ―meet‖ the evid – pretrial notice is PREFERRED!! B. Fed rule – a lot of states follow it – some have it broken up as 803-24 and 804-b5 1. cali takes diff approach 2. doesn’t have any kind of a residual H exception (i) when things start to become issue then legislature just writes a new rule!! X. PROBLEMS A. 10-92 – H choke on boneless chicken, find part of brush – officer report – reported to me by store manager that ass man said that e’ee had lost her hairbrush earlier that same day at rest 1. DOUBLE H – (i) report itself, can be admiss under 803-8 as a public report
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(ii) who is being sued? The restaurant (a) can it be admitted as admission by party opponent – 805 doesn’t just cover exceptions, actually any way you have around the rule!! (b) Admissions offered against party opponent – 801d2d – cover manager and other e’ee stmts (c) If you had a H police rec that had stmt being offered for non H use – as long as non H use for first shite and have blah blah (d) Any way around H rule u can come up with it will work (e) Don’t need personal knowledge when offer stmt against party opponent! B. 10-93 – J testi for L in robbery trial – she heard bystander say there goes L with blahs purse down alley 1. offer that D has charges of burglary and blah – offer evid of Decl of a rap sheet – 803-22 – if you want to admit the convictions (i) to discredit her!! (ii) Anything used to discredit witness can be used to discredit a H decl (iii) C. 10-94 1. Decl is unavailable, 2. Depo does it come in? is it former testi? Given by same witness – question is whether it was for the same motive and if there was anyone there who could cross examine – was it an actual depo?? If party against who offered there is no opp to cross examine 3. similar motive? (i) We don’t really know enough, don’t know what depo for (ii) Prob wont come in under prior test (def the story wont come in) 4. 807 might work if circum equivalent strustworthiness!!

2/20/06 I. Finish Problems A. 10-95  J fired from job at St. Univ – dismissal letter: drunkard on job…he claimed DEFAMATION. Former co-worker testi – H and if so is it Admissible? 1. J is 46 and has 2 relatives living in the Akron area, near where we work (i) Need to show personal kownledge somehow – its rel and in ct testi 2. All of us think J is the nicest guy and he doesn’t have a major alchi problem (i) Being offered to prove no alchi problem then for the truth of the matter asserted (ii) Is it admissible? REPUTATION in the community exception – problem of REL – nicest guy comment prob isn’t relevant! 3. I heard in lunch room at work that he had fallen down eight times last week and that his breath was real bad – like alcohol (i) Out of ct, stmt, decl, blah – H
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(ii) EXCEPTION – its inadmissible!!! 4. I saw him work every day of each sem and he seemed to be fine (i) Not H – its IN CT testi!! Based on personal knowledge 5. saw stumble – not H, jones has hip problem (i) H (ii) Offered by jones not if by uni its party admission (iii) Proponent of evid is J, not party admission, if he needs his problem in evid he needs to testify about it (iv) C0uld be stmt of phys condition if sayin I HAVE a medi problem 6. letter quoted (i) cause of the action – defamation  comes down to if its for the truth of the matter asserted – not even offering letter to prove the truth!! The fact that stmt made is whats important to the action – defame MUST BE FALSE – not trying to prove TRUTH rather to show that its FALSE!! 7. I saw jones at bar quaffing 2 beers last wed at lunch (i) Not H 8. When he was handed the memo I heard sally the assistant claim hes fainting catch him (i) H (ii) Present sense impression OR excited utterance 9. Last week S said that she was going to meet J at the Salty Dog after work to have some beers (i) Unreliable – nothing in there that he intended to drink 10.I heard J tell the nurse that his hip hurt badly, so much that he couldn’t sleep or walk and needed medication to ease the pain, he also told her that UNI trying to run him out of school on trumped up alchi charge and he had to work harder (i) First part – medical diagnosis/treatment (ii) Second part – H; offering it himself to defend himself -11.I have a memo from Univ Sec stating that subject has been investigated on suspiscion of narcotics use we conclude that he is not a drug addict we think that he has experimneteed with weed and that he is alchi (i) H (ii) State of mind of the H – affect on them – got memo from dept that support conclusion that let go bc intox – GF in making the assetion even if its NOT true 12.After work one day we were all standing around, teasing each other another e’ee said to J – so is it true that you are BF with JD, is it? He smiled and didn’t say anything (i) H (ii) Party admission – would he have denied it or said something otherwise (iii) Adoptive admission by silence – is there a problem that we don’t know who said it?

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(a) Is this the kind of thing deny if not true – would this person likely be taken seriously…don’t know who that person is – so more likely than not that wouldn’t allow it!! II. Confrontation Clause A. 6th Am – In all crim prosec the accused shall enjoy the right to be confronted with the witnesses against him 1. things to remember (i) CRIMINAL prosecutions (ii) Possessed by the ACCUSED (a) No equal right possessed by the accuser – never an obstacle if the D wants to admit evid against the govt (even in a crim case) (b) Where it applies – only where evid against a crim D 2. How affect H evid (i) Maryland v. Craig – 3. Some stats allow videotaped DEPOSITION testi – testi bc child so traumatized not a witness in those cases (i) Almost every stat has age limits above which wont apply (a) Youngest is 12!! One ct goes as high as 18 (b) Some provision for developmentally disabled adults in some Jx B. Maryland v. Craig 1. how do you accommodate needs of VERY sensitive witness AND the interests of the D in confronting and x-examine witness against him 2. we are more comfy rely on stmt if made in ct, under oath and subject to x-exam 3. gives jury something on which they can base assessment of the credibility of the W 4. context not unusual – at time decided 33 states had similar stat as the one in Maryland!! (i) Now up to 45 states and federal govt 5. Child abuse case (i) Violation of sexual abuse against 6-y-o by the owner of the school where they went 6. 2 affects on child (i) Psychological trauma (ii) Some kids will close up 7. if child cant testi the case is OVER usually 8. Balanced – the Ds right to confront and x-exam the witness – no question that even kids will tell stories in ct that are NOT true (i) One way to reveal if kid is being untruthful on purpose or bc confused – examine under oath so that jury can see their demeanor 9. LANDMARK CASE (i) The first time the ct has translated the Ds right to controfnt and cross exam the person as a preference (ii) This isn’t an ABSOLUTE right its preference which must yield in the face of an important public policy!!
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10.Safeguard put in place by the ct? (i) How determine if there IS important PP that outweighs the Ds right? What procedure is approved by the ct? (a) Has to be another interest involved and cannot be a legislative presumption (b) What do they have to do? (1) Must conclude that child traumatized to degree of suffering SERIOUS emotional trauma (2) And or the witness would become UNABLE to testi (ii) Usually kid come testi but D not there!! (iii) Present with kid at minimum is the prosecutor and defense atty (a) Has to be that the problem would be testi face to face with D – D is not there but in electronic communication with his atty =-= bc atty can x-exam and needs to know what D thinkgs about testi (iv) Transmitted into ct room – usually one way CCTV (a) The jury has opp to examine the demeanor of the child nd 11.this is 2 best (i) there is some truth to notion that sometimes ppl say things when u not there that they would not say to your face – not equal opp for the D CLASS NOTES  The child will suffer trauma (if the child is so tramutized that the child may not testify)  Not just prosecutions right to prosecute and the D’s right to defend  AS of NOW (Craig Case)  Authorized procedures (35-45 States) o Children / and very few for mentally disabled adults o Important that the states jurisdictioin must show that it is for ―important public policy‖ Maryland v. Craig  Necessity  Important Public Policy Bruton  Co-D Stmt of 1 not admissible against others Crawford  Non testimonial HS  Testimonial HS o Unavailable +- prior opp to X-E

C. Bruton v. US
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1. 2 ds involved in robbery, E made post arrest stmt to police saying yeah B and I did it!! 2. PROBLEM – cant cross exam 3. is it admissible against B? NO!! 4. if co-consp stmt in course of consp and to further are reliable and not Bruton issue 5. issue is POST ARREST stmt!! (i) Strong interst on part of D to minimize own culpabi,ilty and help out police!! 6. Cross Exam becomes problem bc unreliable stmt when offered against co-Ds (i) Person making it is NOT on the stand 7. SOLUTION of CT (i) Delli Paoli – give limiting instructions (ii) See rule 105 – when evid admiss as to one but not another is not admitted – limit to proper scope and tell the jury appropriately (iii) J advised that Es confession was admiss against E but not B and they should disregard it with respect to bruton 8. Es conviction was rev’d bc 5 th amend problem and acquitted and B was convicted after jury heard confession that another jury confused to find guy guilty – instructed to disregard it 9. Issue opinion to overrule DP case 10.Ct held (i) You CANNOT admit a co-Ds out of ct confession against the co-D and rely on the limiting instruction (a) Limiting instructions are NOT dependent in this context!! (ii) No opp to cross examine so no opp for B to test the reliability of the confession 11.2 factros (i) Power of confession hard to disregard (ii) D against who inadmiss in any event cant even testi 12.if you have BOTH on trial what are your options? (i) Might be able to REDACT a stmt – but sometimes you may not be able to do that when its written (a) Can do ti FULLY (ii) Separate trials (a) Put on evid 2 times, witnesses 2 times (b) Judicial inconsistency (iii) Separate juries same trial!! (iv) Or just DON’T USE THE stmt!! 13.ISSUE ON POST ARREST STMTS, NOT ISSUE ON CO CONSP STMTS – ADMISS OF A PARTY OPPONENT!! D. Crawford v. Wash 1. how the SC most recently determine how clause had affect on H evid 2. Conf caluse doesn’t bar all H testi
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(i) Case where on retrial one person was dead – conf met during first trial – maddis – also recognize that dying decl are admissible blah blah – no opp to x-exam – conf caluse doesn’t bar all H evid 3. 1980 – line of cases that were overruled – 2 prong test – can admit any H if show that DECL is unavail and the H was reliable 4. Scalia – sayin it applies only to witness testi not to other H – the rest were holding to the 2 prong test!!! 5. couldn’t discuss what tesi H was – other than that can agree 6. FACTS (i) Post arrest stmt given by Ds wife (ii) His Defense was self defense – attack made by him bc the other guy tried to rape her (iii) Her stmt equivocal whether he was armed (a) Had been mirandized andstmt at police station (iv) Didn’t testi against him under marital privilege – stmt offeredagainst hubby – ct had to consider this as to whether it violated the conf clause to admit it (a) Lower apply Ohio v. Roberts – aginast her interest, blah blah 7. SC abandon the 2 prong test (i) Came to concl that Conf Caluse ment to prohibit use of ex-parte testi stmts!! 8. Rule – says (i) The conf clause doesn’t limit H generally it only limits testimonial H!! (ii) Cont clause is not guarantor on the use of H (iii) Prohibits use of H unless the D had prior opp to x-exam the maker of the stmt!! 9. WHAT IS TESTI H?? 10.if you have ex parte prelim Hearing its DEF testi H!! 11.C – under arrest at the station and told anything she said could be offered against her – anything said was with eye to stmt blah at trial – that’s testi H that’s as far as they had to go 12.domestic violence and child abuse – that is most blah (i) large number of the complaingin victims either disappear or refuse to testi!! 2/22/2006 C.C. Analysis (post Crawford)  (1) Is there a HS exception  (2) Crime Cas ? Against D?  Is it testimonial?_No Admit o Yes – exclude unless  Unavailable
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 Prior Opp to X-E I. Confrontation Clause Continued A. Students guide to H – applying H -rules and applying confrontation clause test (old Ohio v. Roberts test – its DEAD since CRAWFORD) B. Test now in crim case 1. determine whether we have testi H 2. we DON’T have a good defn of testi H (i) ct told us in the opinion by going back to determine what it is the CC was made to protect against that we should focus on ex parte stmts obtained with purpose in mind of using as testi evid – don’t know if enough that Decl have that or Govt needs to have it 3. expressly declined to define Testi H (i) post arrest police interrog stmt is testi H bc those are the types involved in Crawford – violate CC if admitted against the D II. PROBLEMS on CC– A. 11-1 – Eeney, meany, miney revisited – released from prison and returned to illegal bus of importing narcotics and caught again…wirtaps reveal E decl way to go M and M this plan to bring in coke will work this time…see rest of question 1. must P show E was unavail to testi – no longer the test!! Doesn’t matter – would be req under Ohio v. Roberts…unavail is NOT the issue, its if its testi (i) govt not involved with production of stmt, just dropping in!! not likely they would have antic it would be avail at trial (co-consp almost always fall outside of blah)…co-consp not testi 2. E post arrest – so we did it you cant blame it on us (i) Admiss against E as his own admission but inadmiss as a party admission against M and M bc no longer satisfy co-consp shite bc post arrest (ii) Bruton Case – in this situation, you CANNOT offer the stmt against ANYONE if they are being tried together – how can u use the stmt then if you want to use it (a) To impeach it would be TOO prejudicial (b) Separate trials or separate juries OR forego the stmt (iii) Not Crawford issue if its your OWN stmt B. 11-2 – T testi about car theft shite at prelim hearing, doesn’t show up at trial 1. testimonial 2. prior test exception – had opportunity to cross examine – connected to going to jail for car theft, similar motivation 3. If actual cross exam then can say confidently CRAWFORD (i) All it says is prior opportunity to cross (a) Motivation on part of D to cross exam is VERY diff than at trial, at trial its much more thorough (b) Prosec has to meet in prelim hearing– whether there is PC to hold the D for trial
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4. if no cross exam – D can argue that motive was so diff that it was Rx tactical decision not to cross and shouldn’t be viewed as waiver of his right at trail to cross exam 5. Her answer  not necessarily, it MAY meet them but keep in mind prelim hearing much diff C. 11-3 – Jess (5) tells mom that man next door did stuff to her before and her mom took her to child psychologist who interviewd and examined Jess…if neighbor, JB is charged with various crimes of child sex abuse against Jess can her mom and Dr testi about her stmts to them? Can Jess testi outside phys presence of the D? 1. stmt to mom – stmt for diagnosis/treatment – aware that dr going to be making diagnosis!! (i) Stmt of present sense impression or present physical condition but here its BACKWARD looking stmt (ii) In the past usually use the residual exception – if child descry conduct unlikely to be in knowledge of child of that age, indicia of reliability and trustworthiness (a) Arg that NOT testi H – child isn’t thinking about trial – even if mom elicit shes not in shoes of prosec – very diff then ex parte pretrial shite blh blah to secure trail testi! (b) Good arg that conf clause not going to preclude it bc hard to say its testi 2. stmt to dr –how does this differ? More towards diagnosis – better shot to get that in(i) would a 5yo appreciate the importance of accuracy in making stmt to person (ii) def admitted against resid exception (iii) CC – a LOT more testi and the one before it -- want to know somethings (a) Does he usually work with crime shite, does he get provided with types of questions (b) If just deal with kids pshyc problems not testi (c) If deal with govt blah blah – looks like creating ex parte stmt for use at trial (d) Primay prupose isn’t testi – look to subject matter of convo involved 3. out of phys presence of D – this is Maryland v. Craig – there would have to be detailed finding by ct supporting that child would suffer some type of trauma if forced to testi w/ D around (i) need stat in place to authorize out of presence taking of testi – so long as D is in communication with his atty and the IMAGE is broadcast into the ctroom D. 11-4 – Margot witness to stabbing….blah blah 1. excited utterance, present blah expression 2. she cant come in – doesn’t matter if the stmt is NOT testi
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3. CRAWFORD TEST (i) First, is the stmt TESTI (a) Excited utterance – made w/o thinking, not thinking about trial and shite – not testi H most likely (b) If its NOT testi H that’s the end of the cont clause inquiry (c) If testi H go to 2nd step (ii) Second, if it is TESTI H (a) Is the W unavail (1) Has to be called if avail, if not, then look to last part (b) Has there been prior opp to cross exam E. 11-5 – offered against N alone, Ns confession – says ok with limiting instruction 1. made post arrests so Testi H 2. Under Bruton, bc they are being JOINTLY tried there is not an opp to cross 3. C – CC guarantees testing the reliability of Testi stmt by cross exam (i) If N were to testi and is cross exam then would meet the CC issue but still a H problem (a) Decl against interest only as to nick, inadmissible against Barnes – B could cross him on it but still entitled to limiting instruction, not limited to him 4. doesn’t know what answer would be 5. Bruton bases part of holding on fact that Juries cannot discharge from mind confession of co-D, cant ignore and limiting instruction is not coo 6. on exam – yes, cross exam, still have stmt not admiss against one of the Ds and bruton recornize that confession of co-D is powerful and not capable of being ignored based on limiting instruction – pick how you think it should come out and support it (i) she would say shouldn’t come in bc of that part of bruton F. 11-6 – C brutally beatn during job – one week later ID B as attacker – he is tried almost 2 yrs later what if she cant tell, would admission of line up from before violate Bs confrontation caluse shite 1. for it to be admitted as prior ID what are the requirements to be met? 801d (i) full title of provision – Prior ID by a Testifying Witness – even tho she can no longer ID him, she has to be testifying – W has to be testifying in ct and is subject to cross exam concerning the prior ID (ii) does this help with CRAWFORD issue – since cross exam there is NO real issue here!! G. 11-7 – Js twin allegedly sexually abused by stepdad, in his crim trial on charges of child molestation can the prosec offer the sisters videotaped deposition instead of her live testi 1. it’s a DEPOSITION!! 2. prior depo – has to be at least an opportunity to cross examine!! (i) If depo only former testi, under C need actual opp to cross examine – in all likelihood, in depo where contemplate avail at trial, similar motive to cross examine
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3. Depo has to be admitted as FORMER TESTI – 804b1 (i) Still have to find that child traumatized if forced to testi in Ds presence 2/24/2006 I. Confrontation Clause A. ON THE BOARD – Steps under Crawford 1. Is it admissible HS? (i) Remember requirements and exceptions (a) Prior stmt of ID or inconsist stmt or consist under 801D1 – require that DECL be in ct testi and subject to X-E – CC doesn’t apply then 2. Is it ―testimonial‖? (i) Expressly punted on comprehensive defn (ii) Prior testi in ct is testi, grand jury, prelim hearing and at least post arrest police interrogations preceded by Miranda warning is also testimonial (a) Dont know about 911calls and crime scense (b) Also dying declarations/spontaneous shite to bystander (iii) Make your best (a) Ct said some definitely is (iv) If not testi can admit, if it IS testi look to see if witness is unavail 3. Is W unavailable? (i) If avail needs to be called (a) Most of the 803 don’t require you to call witness but this does if the H stmt would be testi (ii) If unavail go to last question 4. Did D have prior Opportunity to X-E D? (i) Crawford says if no opp then you have to exclude the evid (ii) Provides an additional hurdle over which H evid offered against crim D must pass (iii) Ohio v Roberts – not good case, kept out nothing, a bit of evid that used to come in is now inadmissible B. REVIEW 1. no application to CIVIL cases (i) right of a CRIMINAL D (ii) also doesn’t apply if D offer shite against govt!! 2. apply – when prosecution offer evid against D (i) or co D offer evid against co D in crim shite 3. Only raised where the D is NOT testifying and not subject to blah blah II. NEW STUFF – 400s deal with rel, 800s deal with H A. Start with 401/402 B. 403 – gen rule – exclude where probative val sig outweighed by danger of 6 things – where judge has DISCRETION to exclude C. Rest of 400s limit the Judges Discretion
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D. 407-411 – 1. take particular types of evid, where it is so apparent that the danger is likely to significantly outweigh the probative value you know we have to exclude!! 2. focus on purpose for which its being offered (i) a lot of time don’t admit to prove guilt, liability, etc (ii) but ok to show o’ship etc (iii) look at how relevant for case (a) look to purpose other than what is forbidden E. 407 – Subsequent Remedial Measures 1. very policy based rule 2. provides that when after injury or harm caused by event, measures taken that if taken previously would make it less likely to occur in the first place, not avail to show for defect of product, need for warning/indstruction, etc 3. exclusion not req where its for another purpose: such as proving o’ship, control, or feasibility of measures or for impeachment 4. exclude if used to show fault – so look for another valid purpose 5. JUSTIFICATIONS (i) Policy (a) Watnt to encourage ppl to make their premises or products safer (ii) Relevancy (a) Fact that change is made is not ALWAYS an admission of fault 6. CALI v. 407  (i) Cali version, significant difference – evid of change of product design or warning (excluded) cali doesn’t have that lang and the cali SC in AULT case made it clear that SRM exception doesn’t apply in products liability cases – but 407 DOES apply in products liability (ii) CALI (a) Do not limit in products liab (b) Don’t need to restrict evid bc the mfg of mass produced prod will ALWAYS have incentive to make safety improvements (c) Market forces and threat of increased future litigation make it unnecessary to exclude RELIABLE, PROBATIVE evidence (d) If sue for prod defect, which corrected, can offer evid of subsequent remedial measure (e) If under Fed Torts Claim act or place where Fed law applies, that is EXCLUDED!! (1) Cant offer change in prod design or warning labels 7. PROBLEM – most cases in ct are diversity – outcome determinative which means look to state law – 407 wont apply just bc u are in fed ct – look to more!! 8. PROBLEMS – pg 102 (i) 6-1 – train crash in Indiana…fire chief engineer and generated post accident study which was its practice (a) Firing is barred –company determine likely hes at fault, trying to remedy, its subs remedial measure – so 407 bars
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(b) The study…it was REGULARLY done – some post accident studies could be but if there is practice in doing so doesn’t look so much like subsequent remedial measure but instead get info on which it can make a subsequent remedial measure – they do it no matter what – prob admiss (not barred by 407) (ii) 6-2 – patron scratched by rose bush outside of rest, she said rest neg in fail to maintain clear walkway – they say its not on their prop and not their resp – show that they paid to get it fixed (a) Being used to show O’ship or something rather than to show remedial measure was taken!! (b) D denied control and then paid to have fixed – this is coo to let in – almost impeachment too!! (iii) 6-3 – billy got shears, injured while using, claim that design defect, shortly after changed design of the shears (a) Cali – would be admiss (b) Fed rules – not admiss unless company was saying we couldn’t have made them safer or something!! (1) Saying not feasible to make change then making change can be avail (iv) 6-4 – M sued club, fell on wet pavement, they said it wasn’t slippery – she offers that there was sign up blah blah – using to show they own the property (a) Yes she can use it to put sign up – just to prove O’ship – is there a problem with her proving o’ship? They haven’t disputed it!! They didn’t say they didn’t own it (b) NEEDS to be an issue in dispute – otherwise NOT relevant!! (c) 403 – can still be argued – even if evid that can be admiss…doesn’t say it HAS to be admitted so can argue probative value outweighed by danger of confusing the issues, etc. (v) 6-5 – K slipped on patch of ice outside of diner, B own store adjacent to diner and she put up sign that it was icy – if K sues diner for neg can he offer her sign (a) She may actually have control over the sidewalk, can he offer it against J?? (b) Controlling issue – its not Js subsequent remedial measure (1) Don’t want someone to be punished for doing the prudent thing (2) It was B that was doing the action – 407 doesn’t exclude it!! (c) Is there something else that can be used  its H!! (d) nonH purpose? (vi) 6-6 – Strict Prod Laib suit – Cali or Fed – tank of gas in Ps possession exploded, sued supplier of blah…odor, blah…put out brochure

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(a) Ps caliming that something about odorizing agent caused explosion – assuming that is principle of physics and they say if don’t smell odor replace it – its subsequent remedial measure (b) Admiss in CALI but 407 keeps it out federally (c) If the brochure had been prepared before accident but not distributed til after then… (1) Can argue that might not have dist it after (d) What if dist but waiting to be unpacked in stores (e) Wants to make clear (1) Remed measures prior to event are NOT excluded generally o If significant steps need to be taken (like not printed or not sent) – still something we want to encourage them to do, don’t want to penalize if sig steps still need to be taken o If out of hands prior to event, diff situation, no steps taken after aware of injury to prevent it again!! F. 408 – Deals with Settlement Negotiaions 1. Excludes civil settlement or an offer to settle a civil case to prove liability for the amount of the claim 2. also excludes evid of conduct or stmts made during neg (i) there has to actually be a dispute and a dispute as to either LIABILITY and or the AMOUNT of the claim (ii) stmts that are made before dispute or try to settle where there is no dispute do not fall into 408 3. Rationale (i) Want to encourage settlement (ii) Don’t want to discourage from being honest during settlement negs 4. Probative Value (i) Offers made for a lot of reasons – may not actually be probative of fault or liab or admission as to an amt of claim 5. limited in a number of respects 6. cant say cant use to come in something --------- bc in settlement neg 7. same limitation so that where not being offerd to prove liab, fault or amt of claim, may be admiss for another purpose (i) witness bias, undue delay, obstruction of civ or crim justice (ii) can be used for impeachment!! (iii) NEW 408  see below go into effect unless congress acts!! 8. Note: 408 Amendments (Pg 184) – Go into effect Dec 1, 2006 (i) ON THE BOARD (a) Impeachment – cant offer evid as impeachement (1) Don’t want to discourage ppl from making frank admissions (2) Brings into line with rule concerning plea neg in blah (3) (b) Use in criminal cases
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G. 409 1. GOAL (i) Evid of furnishing or offereing to pay med, hosp or similr from injury not admiss to show they caused it (ii) For good Samaritans 2. only excusion is the ACTUAL offer to pay – collateral stmts made are FULLY admissible!! 3. if offer to pay med exp in settlemtn excluded under 408 and 409 H. CALI – very similar rules for 408 and 409 I. 410 1. ON BOARD – 4 scenarios it covers (i) Guilty plea that is withdrawn (a) Doesn’t happen often (1) Only limited reasons a ct can allow the plea to be withdrawn but it does happen (ii) Nolo plea (a) Not an admission, just sayin im not going to fight it (b) Probative value is LOW (iii) Rule 11 statements re 1 & 2 (a) Refers to rule 11 stmt made in connection with guilty plea withdrawn or nolo plea (b) Independent determination that facts justify blah blah (iv) Plea discussion w/ prosecutor where plea fails 2. EXCEPTION (i) If D introduces in part and fairness requires blah blah…stmt misleading blah (ii) If there is subs proceeding for perjury or false stmt (a) Makes stmts under oath (b) Great purj trial coming up – 2 inconsist each under oath!! (c) Prosec cant offer blah blah – d gets to get away at that point…blah blah blah 3. one other issue (i) D – I want to bargain (ii) D and FBI agant (iii) Miranda rights (iv) They DON’T recomment plea bargain – incrimination stmts (v) NOT intended as a part of the discussion about the plea (a) Called to talk about plea, showed up thought going to do that but you said NO deal – should be shiledled under 410 (1) Prosec says no atty and Miranda – prosec atty in the rule (vi) Some Jx - -the prosec can delegate bargain auth to law shite – then 410 applied…but since read Miranda, looks like it should be used (a) Absnese of showing that negotiate since Miranda rights 4. IMPEACHMENT
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(i) SC Case – US v. Lestasnado (a) D can waive the 410 prohib on use for impeachment!!

2/27 J. PROBLEMS  1. 6-7 (i) Can she offer it? (a) 408 – requires there is dispute to validty or claim (1) Here no dispute to amt or to validity of claim (2) Therefore completely admissible 2. J crash into A and knock over and J said sorry, I was preoccupied, all my fault, no suit ill pay for med expenses and other shite are her stmts admissible (i) Pre dispute (ii) Is 408 the only section that applies? (iii) 409 Pay meds – only where she offer to pay med expenses applies (a) 409 exclude offer to pay but admit other shite that goes with it (iv) Should 408 apply to exclude remainder (a) These are again pre dispute stmts, so 408 doesn’t apply (1) Which means they are admissible (v) Primarily admiss, only 409 stmt offer to pay med expenses is excludable 3. adsfasd (i) n o under 408 – there IS a dispute now, bear on the validty of the claim (a) 408 applies when dispute as to amt or validity (b) Easily kept out (ii) What if produce all forms and betting slips? (a) Those are admiss bc they are otherwise discoverable or available (1) Unless expressly created for the settlement (iii) Lets say there is still dispute (a) Under old rule question if admitted (b) New rule on 184 – governed by subpart 2 – continues to exclude any stmts made in connection with a govt regulatory agency blah (1) By excluding that its intending to make clear that stmts under 408 are NOT admiss in crim cases bc that exclusion is a double negative exclusion o Initial part is prohib, in 2 EXCLUDES so that’s a double negative  If neg with SEC on civil sec blah ought to be aware that can be used against you blah (2) Gen 408 stmts not admit not just in civ case but in subsequent crim cases unless made in a settlement neg with a govt regulatory agency 4. 6-10
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(i) admissible to impeach (a) old rule – yes (b) new rule – new rule changed blah – first P on prohib uses – says OR TO IMPEACH (1) specifically prohibits the use to impeach – brings it in line with blah (c) ONLY LOOK AT OLD RULES – only 4 amendments and 408 are the most significant ones 5. 6-11 -- m charged with break and enter kitchen, next day visit cop and proposes to G, if you ditch carges against me I can help you catch some big time crooks, I admit I did it I was hungry – can stmt to H be offered at subsequent trial (i) 410 governs – (a) is this plea neg? M is the one that initiated (1) lang of 410 subpart 4 – no atty there (2) not plea neg, takes it out of 410 meaning the stmts are admiss – come in as stmts against party opponent under H rule (ii) what if his friend B is charged too, B will go against thim if they drop charges against him, Bs stmts made during guilty plea offered to impeach B (a) 410 permits any stmts made by guilty pleas that are NOT withdrawn (1) Stmts during guilty plea hearing are ADMISS unless later withdrawn (iii) M unsuccesfruly attempt to negotiate plea, at trail introduces OWN stmts in discussion with prosec, what can prosec do in response (a) (i) – ought in fairness be introduced blah balbha blha – 410 protects D, doesn’t bar D from offer shite but there is problem, D offering own stmt is H – its not being offered as stmt against party opponent, any other exception to apply? Its prob indamiss H, if it WERE admitted, the prosec would be permitted to offer so much of other stmts offered there as ct might find necessary to prevent it from being misleading (iv) M concluded rule desidnged to protect accused, offerd stmts made by prosec during unsuccessful plea neg—are stmts admiss (a) There is nothing that seems to preclude D from offer the Ps stmts – some cts held that there is reciprocity there!! 6. 6-12 – L sued by neighbor, M for breaking expensive mirror in Ms house, during settlement neg, L admitted she had been smoking weed at Ms house when Mirror broke, she denied breaking the heirloom, following month L prosecuted for possession of weed at neighbors house (i) Can prosec offere her prior admission during settlement re her pot use? (a) New rule – seems to prohibit
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(b) Old rule – not so clear on it – a lot of cts prohibit as matter of fairness (1) Where stmts made collateral to actual matter to dispute (of breaking mirror) o The stmt re smoking is collateral so most cts would have permitted this stmt!! (2) Unclear as to use in subsequent criminal proceedings (ii) If L had pled guildty to using weed at neighbors house…can be used at leater civil trial? 7. 6-13 (i) Perhaps admiss, unresolved issue – relate to COMPLETELY different matter, during plea neg, is it admiss? (a) Doesn’t say if the neg resulted in Guilty plea (with regards to G murder) if guilty then 410 don’t apply bc stmts excluded for where plea doenst result in plea of guilty (1) Still argument since diff matter so fairness should NOT prohibit use of stmts K. Evid of liab insureance 1. 411 – limits use of evid of insurance upon issue of it person acted negligently or improperly blah blah – ok to show agency, O’ship, control, etc (i) Rationale, 2 fold – not particularly probative? (a) Not probative as to fault (1) Make more likely they are negligent OR more prudent so less neg (2) Some insurance you don’t have choice about!! Having it doesn’t show anything about potential for fault (b) Subject to misuse by jurors (1) More comf giving more in damages, bc insurance pay and if not then give less since the person has to pay 2. PROBLEMS (i) 6-14 – no liab insurance, forgot to buy some – how careful driver are you? (a) In admissible character evidence in civil trial (b) Motive to be careful while driving – profer that say careful in part bc forgot to take ins and knew personally liable if car accident – (1) To show not likely at fault, admiss to show he is careful driver? NO ITS EXCLUDED!! o Lack of ins motivate him to be more conscious – cant offer it to show liab (c) Admiss to rebut implicit assumption that bc mayn have it the D has auto insurance too (1) Evid that he doesn’t have it, show not liab, but to rebut assumption that he has it bc everyone eles does
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o The purpose to keep jury from consider if hes got insurance in deciding liab or the amt of claim, and if trying to show he DOESN’T have deep pocket to overcome assumption that hes got it its offered for prohibited purpose – defeat purpose of the rule (ii) 6-15 – p brought suit against bunjee jumping shite…corroborating that they had ins so lackadaisical attitude (a) Well if insured, no damages so don’t worry be happy – particular purporse the rule overcome – from drawing inference for caution or lack thereof – not probative of that!! (b) Not allowed (iii) 6-16 – Defense witness – blah blah – position of 2 cars (a) Offered to show possible prejudice – not offer to show liability or fault or wrongfulness, etc – can be biased bc shes e’ee of a partys insurere (1) Admit evid!! (2) Lower ct ruling should be overturned on appeal III. AMENDMENTS NOT TO BE USED ON FINAL!!! UNLESS CONGRESS ACTS THEY ARE GOING TO CHANGE IN A COUPLE MONTHS!! IV. CHARACTER EVIDENCE A. Introduction 1. what is character evidence? (i) Character evid rules have a MAZE like structure – few brightlines, most depends on what someone else did first 2. Different uses for character evidence (i) Propensity Use – try to show bc someone has particular trait of character have propensity to act in certain way and offer to prove that is how they acted on this occaision (a) Evid in crim fraud case that dishonest, estab this character, show propensity to behave in dishonest ways, more likely that did defraud consumer on this occaision (b) Offered to show propensity to act in particular way, offered to show did act in that was on particular occaision (ii) Character IN ISSUE – much more limited in use (a) EX – negligent intrustment – chase being sued, gave car to her kid who is notoriously bad driver (1) Part of proving neg in giving car to teen have to show that bad driver so his character for driving is AT ISSUE in the case – needs to be proved to prove the COA (iii) Specific Use (a) Offer specific instance of past conduct for purpose OTHER than to prove propensity

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(b) EX – robber robs bank in distinctive way, pink womens undies and president mask and then another bank robbed by person dressed the same way – used to prove ID as robber NOW in dispute (c) Use specific instances of conduct to prove something else about a case other than propensity to act in a particular way (iv) Impeachment (a) We aren’t going to talk about this for a couple weeks!! (1) Look at 404, there are 3 uses referred to, 3 rd being as impeachment o Usually talking about propensity o Impeach by character governed by 2 nd set of rules, study later o Character evid can be used to impeach witnesses but set that aside!!! (v) Amend to 404 don’t change anything they just clarify and everyone assumes its in existence 3. 404a – (i) Not admiss for purpose of action or conformity blah blah – no propensity character evid – cant offer evid of character or trait to blah blah – this is GEN blanket rule (a) What is character evid? (1) Generally specific traits of characted – honesty, temperance, peacefulness, etc (2) Under discussion under rules are generally very specific – thieving, etc –good guy v. bad guy not enough, specific aspects of ones personality o They can be proved in 3 ways – not always admissible  Rep  Opinion  Specific acts (ii) EXCEPTION (a) Gen lang –cant offer person dishonest to prove embezzle from e’er (b) EXCEPT – rules of mercy (1) Character of accused – amend to subpart 1, in a crim case (in case ppl didn’t get what accused meant) o crim D can offer pertinent trait of character – has to bear upon crime with which the D is charged o prosec can only offer D propensity evid only if the D open the door – once call someone to show how peacible he is, then P can bring in ppl to show he is violent etc. o or if the D offers character evid of the VICTIM (ex of attempted murder where D offer self-defense as
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theory) then the P can offer evid of same trait of the ACCUSED!! o Latter 2 open door to P to offer character evid to REBUT that so has to be same type of trait of character

3/1 III. Character Evidence A. MEMORIZE 404a!! 1. Specifically address use of propensity evid B. REVIEW C. Propensity 1. LOOK AT: What you are using the evid to prove (i) Evid of persons trait to prove they had propensity to act in certain way, which makes it more likely that act in certain way on this occasion (ii) 2. On the Board (i) DE Rep/Opinion (a) XE included specific acts 3. BRIGHTLINE – propensity character evid is NOT admiss in CIVIL CASES!! 4. ANOTHER BRIGHT – PROSEC can never use propensity evid unless the D has done something to open the door (i) Prosec rebut what the D offer as character witness 5. 404a – not admissible to prove action in conformity therewith (i) Will not admit evid of persons character to prove they had propensity to act in certain way and therefore did act in that way (a) EXCEPTIONS – Limited to CRIMINAL CASES 6. If accused offers evid of the VICTIMS character evid that they are a violent person (allowed under 404a2 – 404a1 allows prosec to rebut but either offering evid that the victim is non violent or that the D is violent (i) Has to be on the SAME trait of character 7. Couple thigns that don’t jump out (i) Has to be a PERTINENT trait of character!! (a) Ex – embezzle money – honesty is but violence isn’t (b) Has to bear upon act that is alleged D. 405 1. has to be read with 404 – tells you what types of evid are permitted 2. character evid is limited to rep and opinion generally (i) with respect to PROPENSITY evid (a) Direct Exam (1) Reputation (2) Opinion
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(b) Cross Exam (1) Rep (2) Opinoin (3) AND Specific Acts o Don’t allow generally bc trying to use character to prove something else— (ii) if character trait is at issue, 405 allows all 3!! (a) Sicne its an actual ELEMENT!! E. CALI 1. 1103a and b (i) Both involve VICTIMS character trait (a) Gives D right to offer evid of victims trait or character (1) Allow them to offer SPECIFIC act evid too!! 2. Cali – can offer spec acts to prove Ds character after the D has opened up the victims character and for the D to use spec acts blah blah F. PROBLEMS on PROPENSITY  1. 5-1 – Rambo II (i) No bc civil case (ii) No bc prosec offer evid in their case in chief (iii) No and Yes – resp atty cant be used – bc not pertinent character traits, but meekness can be used bc inconsistent with being a batterer (iv) Yes and No – reputation she can say but not the specific acts of the fights (a) She cannot testi to any prior acts OR nonacts (v) YES – can question on Specific Acts bc its attacking their basis of opinion (a) If hadn’t heard, affect opinion… (b) can still question about arrest if attempted murder charges dropped? (1) Whether arrested for murder would affect rep in community whether the charges dropped or not, doesn’t have to be (vi) YES!! 2. 5-2 – Wanderlust of Cows and Other True Stories – cows have propensity to wander (i) Seems RELEVANT!! Not a person!! (ii) If rel, probative value blah blah (iii) Also its NOT criminal so forget character evid!! (iv) Rules of evid do NOT apply to animal behavior 3. 5-3 – cars collided, Crash charged with reckless driving (i) Not reputation or opinion, it’s a specific act!! (ii) D can be his OWN character witness, is a teriffic driver a PERTINENT character trait? (a) Good and Teriffic are generally TOO non specific to be character traits
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4.

5.

6. 7.

8.

9.

(b) Careful would be the one you would want him to testi to!! (iii) Specific acts – totality – clearly not rep or opinion!! 5-4 – Heavyweight Champ (i) NO -- Civil case (a) Point out all the flaws you see so mention specific acts too!! (ii) NO (a) No in civil (b) No crim bc can only do it on XE (c) But its reputation evid so it’s the right form (iii) Civil NO (a) Crim (1) CALI – he can if the victims character blah blah (2) Fed – rep or opinion!! (iv) Civil NO (a) Crim – (1) Can offer about bad temper but the rest under fed rules no (2) Cali can prob get EVERYTHING in!! 5-5 (i) Opinion but being offered by prosecution (ii) What is the character trait? He obstruct justice – is that even a character trait that one can have? This is TOO narrow and really focusing on a specific act 5-6 (i) Not pertinent to the crime charged 5-7 (i) I saw H beat up 1st wife, the one before F so badly she was taken to hosp (a) It’s a SPECIFIC act so NO (ii) Based o what I saw of him, I firmly believe H was a VIOLENT man (a) This IS admissible, just an opinion!! (b) Admissible as to form, the D is offering it, etc 5-8 (i) Honesty is petinent as bribery is dishonest act, its form of opinion and being offered by D in a crim case (ii) 1 is admissible bc meeting charge and character trait, 2 is not – its not cross exam (are you aware stole 3 hubcaps before (a) Forbidden to call 2nd witness to sneak in specific acts (b) Cali would be admissible!! 5-9 (i) POINT NEED TO UNDERSTAND (a) 404a2  normally only open door by offer character evid – can offer character trait of peacefulness in homicide case if the D offers ANY evid that the victim was the first aggressor or ANYTHING else
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(b) Rule of NECESSITY – requires that it be a HOMICIDE case, the Victim not there to give their side of story so allow character evid of the persons PEACEFULNESS!! 10.5-10 (i) NO, bc offered by the Prosecution (a) Prosec cant offer the first evid of the Ds character (ii) Peacefulness and Truthfulness – peacefulness isn’t pertinent, truthfulness probably is pertinent (iii) YES!! Bc D opened door and its on Cross Exam of that witness (iv) Prosec cant act witness w/o good faith basis for doing so (a) Highly prejudicial, based on rumor, not enough!! (v) Wrong form – 11.5-11 (i) (ii) Is it rel? question if this D robbed this store not someone kinda like him robbed ANOTHER store – we don’t even know if the guy that robbed other robbed this and do they have the wrong guy? Not enough relevancy to get into the character issue G. Character in Issue 1. On the Board (i) DE Reputation, Opinion and Specific acts 3/3/06 IV. REVIEW A. GENERAL 1. Almost NEVER an issue in CRIMINAL cases (i) Criminal – (a) Crime of SEDUCTION (1) Needs to be individual who has previously been chaste (b) Crime of ENTRAPMENT (1) B. Propensity 1. On the Board (i) Reputation (ii) Opinion (iii) (X-E specific acts) 2. RULE (i) On DIRECT you can only ask rep or OPINION questions C. Character in Issue 1. On the Board (i) Reputation (ii) Opinion (iii) Specific Acts
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D. CIVIL 1. On the Board (i) Child Custody (a) Character of EITHER party!! (ii) Negligent Entrustment (a) Give someone something to use, their character is at issue (b) He who was trusted (iii) Negligent Retention (a) Character of Person hired or not fired is at issue (iv) Defamation (a) E. Criminal 1. On the Board (i) Seduction (ii) Entrapment (iii) In subjective jurisdictions F. PROBLEMS – Character in Issue 1. 5-12 – E’er to be neg has to show he had duty to public and guy was dangerous (i) EVERYTHING is admissible – Opinion, Specific Acts!! 2. 5-13 – slander action, (i) Testi that work past midnight on 18 previous occaisons – tends to show hes industrious and not lazy!! (ii) Testi that REP in baseball that hes industrious – admissible (iii) Peaceful non violent person – NOT a pertitnent character trait and therefore not relevant (iv) PPs opinion that he is lazy – ADMISSIBLE (v) Jones offers evid that B has rep among major league baseball owners for being a nerd – ADMISSIBLE 3. 5-14 – SUBJECTIVE test – was the D predisposed blah blah – being law abiding person bears on if he has predisposition to violate law! (i) Testi by Ls dad stating that son would never wilate crim laws, to his knowledge he only had once when stole ball from local 5 and dime – ADMISSIBLE (ii) Ls bro – hes an EXTREMELY honest person – can make arg bc inconsistent with predisposition to violate drug laws that it should be inadmissible (iii) Can the prosec offer evid that he was arrested for poss of pot 15 yrs earlier – previous arrest – prob admissible, how argue it?? Distinction btnw weed and coke!! Good to know how much he had…was it personal use v large quant of coke for distribution purposes – she argue higly misleading, l.ikely personal use blah blah 4. RANDOM

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(i) Sometimes person giving stmt, FBI question thing – incident and ID made, all that matters is hes cross examinable, don’t need to have specific recall (ii) Blind person example – he cant point to D as the one so they needed cop for it, need to call blind guy as witness too tho!! (a) Intro by having cop testi as to prior stmt and then call the witness who ID him to be crossexamined blah blah (iii) V. EXAM A. FORMAT 1. 4 choices, need to determine if admissible or not and WHY? 2. 1 right and 3 wrong (i) If you think you found question that you don’t think has a right answer don’t give your name or anything but leave note saying what question it is B. Need to know the SIGNIFICANT CALI differences 1. 1 or 2 questions 2. prior inconsist – no limit to admit for truth of matter asserted (i) both its admiss for impeachment (a) fed – 801d1a – testi subject to cross and prior stmt under oath subject to penalty perjury at prior trial blah blah (b) Cali – no limitation, any inconsist stmt avail not just for impeachment or substantive proof – doesn’t need to be under oath or prior proceeding blahb blah (ii) Consistent (a) Fed (b) Cali – 791 – cali you aren’t limited to just stmts that are offered to rebut allegation of improper motive – ANY piror consistent stmt admiss as long as predates inconsistent stmt C. 803 – 8c – 1. evaluative reports and factual findings (i) when someone reaches conclusion about something (ii) usually investigation (a) admin hearing (1) like if alien is deportable (iii) finding actually has to be reached by person or organization (iv) LIMITATION on use – not admiss against CRIM D!! (a) Only admiss against the govt in crim cases (v) BIGGEST ISSUE – factual finding – is the conclusion TRUSTWORTHY?? (vi) DOESN’T exist in cali!! D. Cali 1224 e’ee agent as opposed to 801d2 1. cali – in order for E’es stmt to be admiss their act or conduct must be basis for the claim
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E. F.

G.

H.

I.

(i) needs to relate to the e’ees own act!! Not just related to e’er 803-6 – foundation for person who is cert as custodian – her questions assume!! 1. can look like not in ordinary course of business 803-3 – diff btwn that and circum evid of state of mind 1. direct – im angry – directly using stmt to prove what it asserts 2. circum – stmt is  he is ugly – to prove speaker doesn’t like person – not for what it asserts but that the speaker, likely doesn’t care much for that person (i) this is NOT H!! (ii) H only if offer for truth of what it asserts HILLMON  1. using letters written by someone ALLEGED to be Hs victim in an insurance fraud scheme 2. at issue, 2 letters – 1 to sis one to fiance – indicate that going to Crooked Creek with H (i) rel bc if he did go there with H it would give H the opp to kill him making it more likely that body found was not Hs body (ii) ISSUES (a) Could that be used to show that VICTIM intended to go – 803-3 clear use (1) Can always use stmt of intent to prove what they intended to do (b) Could it be used to show that the other person intended to go – using Vs stmt to prove someone else went there (1) In this case there was independent evid that H went to CC (2) Ct didn’t mention that in opinion so has been construed as permitting use of one persons stmt of future intent to prove conduct of 3rd party o Huge reliability concern here!! o Not clear from committee notes if the broadest use of H is permitted under 8033 – her view is it shouldn’t be, since exceptions based on RELIABILITY!! o The only thing that she can expect is to recognize the ISSUE!! 3. USING one persons stmt of intent for another actions 803-6 – bus records 1. you have to actually be an E’ee of the bus 2. if you are OUTSIDE consultant and opinion in blah blah 3. most H issue arise with bus records and public records – MULTIPLE H (i) outsider stmt find way into police report etc (ii) have to have exception to get admitted even if police report itself come in stmt might be redacted Present sense impression 1. describe event or condition (i) Shepard – feeling or belief, is that included?
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(a) Belief is NOT a condition (b) Physical condition – someone screaming ouch my leg hurgs – present sense impression, stmt for med diag, excited utterance…blah blah J. State of mind 1. no backword looking 2. WILLS exception --if someone cut son out of will na dhe make will contest, someone saying after will – I disinherit bc his lifestyle K. 803-3 – they ARE H stmts…like Im angry, I feel happy, Im going to Fla, offered to prove truth of what they assert!! 1. non H state of mind – that lamp is ugly – why would someone own lamp that is ugly 2. cant offer fact remembered or believed to prove a fact rememberd or believed (i) be careful of exam pro questions on state of mind 3. cali can have backward looking stmt if…… L. stmts against interest -- 804 1. Williamson – going to make stmts against interest almost always not useful in crim cases (i) Only allow stmts that inculpate or subject D to proprietary or pecuniary fault or liability – if only inculpate the Decl is going to prove against D (a) EX – D charged with rob bank, Decl say im the one that robbed, D can choose to offer (ii) Addl requirement – 804b3 – stmts have to be corroborated M. PARTY ADMISSION 1. anything they say can be offred against them 2. no against interest requirement 3. can be available N. Stmt against Interest 1. don’t have to be by party 2. have to be against interest 3. only admitted where Decl is UNVAIL 4. Ds own stmt that is incrim and if they have 5 th am right then prosec can offer stmt as stmt against interest against crim D!! 5. if you hae NO memory you can meet unavil requirement – usually you don’t have to go that far, just use 801d2 party admission instead of using stmt against interest O. 803-22 1. limited to FELONYS – doesn’t apply to nolos 2. don’t need if just want to prove there is conviction – can offer public record so don’t need to use it 3. only use if offer conviction to prove an essential element of conviction (i) if convicted of armed bank robbery – essential that had weapon at time of robbery
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P.

Q.

R.

S.

(ii) subsequent case, he is unlawful immigrant, stat that cant have certain weapons (a) offer prior conviction to show that he had an unlawful weapon then use 803-22 4. MINOR exception 801d1 – 1. police station sworn stmt – may be subject to perjury, but NOT a prior proceeding, requires more formality Older v US 1. willing to stipulate that commited qualifying felony (i) unusual bc ct under 403 excluded rel evid (ii) basis for exclusion had to do with danger of unfair prejudice bc very violent offense and if heard might just convict w/o facts of case Excited Utterance 1. CALI (i) describe 2. FED (i) Relate to (a) Ex – floor is slippery – that clean up guy has failed to come here to clean it up (1) Floor slippery is description, can relate to clean up guy that didn’t clean up (2) If said IDIOT wouldn’t be admitted to show hes an idiot 3. CALI – broad – allows you to explain it!! (i) More focus on spontenaeti – narrower time limit (ii) All called SPONTANEOUS stmt – including present sense impression 4. Spontaneous stmt – held to be testi under Crawford rule meaning inadmissible – at crime scene 806 – provides that you can discredit decl in any way u can use to discredit witness 1. its not requirement when impeaching decl that they be able to explain inconsistent stmt!!

3/8/2006

10/18/06 CLASS NOTES (1) Propensity (404(a)-405) (2) Character in issue (405) (3) Other Acts (404(b)) (4) Impeachment (608-609)
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404

I. Character Evidence A. FRE 404(b) – provides that certain other acts are NOT admissible as propensity evidence nevertheless may find their way into trial as proof of something else 1. Motive, opp, intent, preparation, plan, knowledge, identity, absence of mistake, or accident 2. may suggest propensity – cts willing to entertain arg under 403 that probative value of 404 is substantially outweighed by unfair prejudice, misleading jury, etc 3. encourages trial lawyers to use the propensity evid for something else (i) Ex – signature crimes – crimes committed in an unusual way in past and again in crime charged 4. when to show that INTENDED to commit crime, hard to distinguish from PROPENSITY purpose!! 5. CIME – can be subsequent to charged conduct but prior to trial B. PROBLEMS 1. 5-15 (i) Shows that hes got the equipement commonly used for thi (ii) DEFENSE – argue that its PROPENSITY? (iii) Shows PLAN or SCHEME to engage in distribution of drugs (a) Proof of his intent to distribute narcotics 2. 5-16 (i) MOTIVE!! (ii) Probative of guilt, if kill of witness trying to get rid of him BLAH (a) PROPENSITY v. SHOWING SOMETHING ELSE – is this PROPENSITY evidence? NO!! doesn’t bear on extortion at all…rel for some other purpose – go straight to 403 – danger of misleading jury and confuse issue (1) Probative value, high, aware of blah blah (2) Likely to be outweighed by danger of confusing jury? o Not substantially outweighed o When HIGH probative value almost IMPOSSIBLE to not bring under 403 3. 5-17 (i) IDENTITY under 404b (a) Signature Crime!! (ii) STANDARD OF PROOF – under hundleston case – just an allegation so ct has to decide (conditional relevancy) – we don’t know for sure it was L who did it, whoever did had a thing for b&w bunnies – jury has to consider if these allegations support finding that L was involved in prior 2 molestations
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(iii)

(a) Judge has to see if there is suff evid to suppory a jury’s comclusiong that L had molested 2 other girls and the std is PREPONDERANCE of the evidence! (b) If that std is met the evid is admiss and Jury instructed only if THEY decide by preponderdance that L had in fact been involved in the prior 2 and then they look beyond rx doubt that he did it in this case (c) Use preponderance – then use that as POWERFUL evidence as to other one (1) Some cts find this too confusing for the jury!! MO evid as use of ID (a) Foundation of underlying evid is SHAKY!!!

4. 5-18 (i) Only bringing it in to show propensity to commit robbery (a) Did he do anything to make this more relevant (ii) Look to INTENT – (a) He brought up DURESS as excuse – D has raised a DEFENSE where something beyond just propensity (something more narrow is a way to meet blah blah) (b) If show that commit crime then undermines blah blah (iii) Peoples character changes – there is a propensity argument they SHOULD bring up (iv) HOWEVER, prosecutor has winning argument bc the D raised duress and has made his inclination towards this activity an ISSUE!! (v) When consider 404b to prove intent only ok when D raise defense that focuses on if he had pre-existing intent – DURESS and ENTRAPMENT are good times to use this, bc raise issue as to whether D inclined to commit this types of crime in absence of duress/ entrapment 5. 5-19 (i) Prosec offer in rebuttal to duress – firing gun evid (a) Rel as showing that was not FORCED to act and was volunteering…why would she ASSIST her captor? (ii) B and E kidnap 3P and she didn’t help escape or blah and she had opportunity to do so (a) Had opp to escape and didn’t – so DURESS not met here for the love – undermines defense of DURESS bc had opp and didn’t so must have been a willing participant (iii) If called her mom to say shes not bad person then can get prior bad acts in!! 6. 5-20 (i) How would this be REL? how does it matter that she knows who he is – goes to MOTIVE!!

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(a) Motive is NOT an essential element of an offense but it CAN be used to show that a person intentionally acted with a BAD purpose if they have a particular motive (1) Deliberate act with intent to transfer a deadly disease – maybe wants to kill him bc arrested her 3 times in the past (2) Prosec case in chief – the fact that arrested her, its NOT propensity evid … just that she engage in activities that warrant her arrest o But not that big of a danger! (ii) Limiting Instructions  Motive if attempt to kill, not as propensity to commit these types of acts! 7. 5-21 (i) If hes had it in the past, likely not oregano blah blah (ii) Like molester case – this is a double trying problem (iii) DEFENSE ATTY – prosec will charge anything for which Probable Cause that commited!! (a) If dropped something then its bc not even probable cause!! (b) Argue for lack of support of UNDERLYING charges that were dropped (c) In this fact pattern not enough evid for jury to find by preponderance that had weed in the past (d) Conditional rel – only rel if Rx jury COULD conclude that he DID posess in past 8. 5-22 (i) Previous wives die in Jacuzzi (ii) This is REL to show that it wasn’t accident – absence of accident!! (iii) Doctrine of chances (a) What are chances its going to happen 3 times? 9. 5-23 (i) PREPARATION – another act – buying dynamite – that shows preparation to commit offense that is chaged – likely to be admitted in the case in chief – also goes to PLAN!! Can also go to OPPORTUNITY!! 10.5-24 (i) This is to show PROPENSITY so NOT admissible…any arg that can be made to admit the evidence? (ii) If issue isn’t if dad molest child but instead if it was if the child was molested (a) In case admitted to COUNTER Ds theory that kid was making up story – its HIGHLY questionable (1) Danger of misuse by jury should have probably led to a 403 exclusion 11.5-25 (i) This looks like PROPENSITY evidence – PURE!!
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(ii) No not really – conditional evid (iii) If it were admitted could ask for limiting instruction – just reading 404b is not suff limiting instruction!! 12.5-26 (i) Other false stmt filed by M? to show that absence of mistake, YES!! (a) Not in prosecutions case in chief!! (1) Bc looks like propensity (b) Now said ACCIDENT, I made a mistake (1) Now prosec can counter that and the evidence becomes relevant!! (ii) Could prosec to show greedy show shady transactions – (a) This is going to specific character evid that they cant offer w/o D first coming forward and showing shite (b) Can only show by rep and opinion not specific acts even if he could (iii) Preference for untraceable blah blah…intent blah (a) Hardest for prosec to connect it up!! (b) If it can be connected may show the plan or scheme which shows what he intended to do 13.5-27 (i) If IDENTITzy is an issue then YES, its classic SIGANTURE blah (ii) Otherwise its pure propensity evid 3/10/2006 C. Still on 404b 3vidence D. Res Gestae – not another act, so many acts occur so close tog that you need to consider them ONE total circumstance 1. Exmaple – when admit evid of particular act and one act was RIGHT before and may be useful to explain, don’t need 404b, just do Res Gestae 2. 5-28 (i) If it is rel and important to the proof of the case its example of res gestae – this is an example if the ct deems it rel and if the ct considers that the rel is NOT substantially outweighed by unfair prejudice (under 403) 3. 5-29 (i) If its conspiracy charge, later sale of green slime not res gestae bc sufficiently distinct from formation of the consp itself (ii) Any other reason for which it can be offered – show reason they conspired – might be admiss under 404b as propensity E. CASES 1. D admits died from ROUGH SEX, prosec wants to offer evid that diamond earrings that she was seen wearing were NOT found on her body or anywhere nearby!! How is this probative of ANYTHING…question here is if INTENTIONAL killing or accidental death?
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(i) How does 2 missing earrings prove ANYTHING? May show motive! May show Intent! If he was just an opportunist after he was not upset by what happened (a) Prob with admit under 404b  WHOSE act was it in causing the earrings to disappear? WE DON’T KNOW…to admit under 404b…. (b) All rests on if the jury could be convinced by a preponderance that the D is the one who took the Earrings!! (ii) Don’t meet conditional rel std!! 2. 404b evid – want to consider If being admitted against your client if you want limiting instructions!! (i) Shes not a fan of limiting instructions F. Character Evid Review 1. 5-30 (i) Its SPECIFIC ACTS (a) Can prosec EVER offer character evid in its CASE IN CHIEF?? (b) Only offers propensity evidence (ii) Dowling case on 85 – even if ACQUITTED of prior act, that act can still be offered assuming there is at least enough evid that jury can conclude by perp that the person actually admitted the act (iii) Quantum of Proof is PREPONDERANCE -- ct has to be convined that there is enough evid from wihc a jury can find by a preponderance std that the d committed the prior act – HUDDLESTON CASE - -READ IT!! Pg 87 2. 5-31 (i) CIVIL case – propensity can NEVER come in unless character is at issue!! (a) If it was a negligent hiring or retention issue, it could be at issue – as prop never admiss in civil case – here must be rep or opinion!! 3. 5-32 (i) Civil Case but DEFAMATION and character IS at issue!! Can offer specific acts!! (a) Tends to show shes COMPETENT – but it was 6 yrs ago…but likely in – spec act (b) Thief is dishonest, if shes honest shes not thief - -goes to the defame stmt again – reputation (c) Not a thief!! She should have kept the money…bears on HONESTY – this is specific act (d) NOT REL to the incompetent or thief claim!! (e) Admiss, shows shes thief – tend to prove the truth of what is asserted (f) Might not be probative of her COMPETENCE as there might be ANOTHER reason for it!! 4. 5-33
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(i) Yes under RES GESTAE and probably under 404b as self defense (ii) No res gestae here – but def can use 404b for motive – was it accidental or intentional punch? II. Habit Evidence A. Habit is a regular response to a repeated specific stimulus B. Habit has to be the kind of evid that we DO consider to be a good predictor of an act on a particular occasion – it focuses on conduct that is specific response to a specific stimulus and the response is VIRTUALLY invariable 1. something you do SEMI-AUTOMATICALLY!! 2. Ex – taking your watch off every night and put on nightstand C. Usually very SIMPLE conduct – if complex its not something you do w/o thinking…if have to think its not the kind of semi-auto conduct that lacks variability! 1. Like example in book on 99 – book is wrong 2. Most cts wouldn’t admit that as individual habit 3. HOWEVER if can show COMPANY POLICY or practice that Is invariably follwoed then YES its admiss D. Look at how many times its happened - SAMPLING 1. if say he stop there 5 times but passes it 25 times a day then its insig in terms of the sampling!! 2. there have to be enough instances observed so you can say that there is a habit!! E. High Degree of Invariability 1. if 30 times didn’t stop that undermines the habit bc don’t have sufficient invariability F. Sometimes habits can be triggered while you are engeted in complex behavior 1. decision to drive might not be by habit but certain acts you engage in G. Character v. Habit 1. Character is not sufficient to allow in as habit is H. JUSTIFICATION 1. type of E of persons behavior from which any departure is highly unlikely I. Always jaywalk, car accident – admiss to see if person was jaywalking that day J. ORGANIZATIONAL HABIT 1. can involve more complex behavior 2. here the e’ees are following a CORPORATE HABIT are almost ALWAYS thinking about what they are doing 3. may admit where don’t admit as individual habit K. FOUNDATION 1. INDIV (i) Number of times do it (ii) Sampling (iii) And the invariability of the conduct L. CALI RULE IS SAME M. PROBLEMS 1. 5-34 (i) Yes, as organizational habit…that is what they are TRAINED to do!!
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(ii) Specific examples don’t have to be provided, someone just needs to know what the organizational habit is!! 2. 5-35 (i) Looks more like character evid – its GENERAL!! (ii) Not admiss bc there IS no foundation…all she said is REGULARLY – doesn’t show the low degree of variability!! 3. 5-36 (i) Specific enough to be admissible – eivd that truly takes shot of certain liquor every day at a specific time (ii) That is not specific enough – getting drunk is broad and around noon is broad – this is intemperance is not something that is admiss as habit evid!! 4. 5-37 (i) Not specific enough (ii) And cant really argue organizational habit here (iii) LOOK TO – is this the kind of conduct that can TRULY be a habit?? I. Sexual Behavior Stuff – RAPE and SEXUAL ASSAULT and CHILD MOLESTATION – don’t need to know CALI differences A. FRE 412 – SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM’S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION 1. FED RAPE SHIELD STATUTE 2. As it was originally enacted it really only applied to CRIM cases and now amended to have SOME application in CIVIL sexual harassment cases!! 3. FOCUS – on protecting the character of the victim (i) Under 404a – in certain circum the D can offer evid as to the Vs character – this is oft where assault or homicide case and its self defense…also commonly offered in sexual assault cases (ii) Places limitation on what is admiss concerning Vs character 4. 412a – there are 2 specific prohibitions (i) D is prohibited from offereing evid of Vs other sexual behavior (a) Might be relevant – (1) to bear upon consent – type of person that has consented A LOT in the past…etc (ii) D is prohibited of offering evid of Vs sexual predisposition (a) Might be relevant – (1) to bear upon consent – is she the type of person (2) may have done something to ENCOURAGE attack (b) CALI limits by barring E of the way the victim dressed (iii) WHY do we not allow? (a) UNFAIR PREJUDICE – for the PROSECUTION!! (b) Damaging victim – preventing from coming forward
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(1) Discourage ppl from coming forward bc don’t want past shite to come up!! 5. 3 Exceptions to 412 – only prior specific acts are admitted, not reputation or opinion! (i) On is VERY BROAD, but almost never applied (a) If the exclusion would violate constitutional rights of D then can bring it in (b) 2 cases (1) Fact that woman was living with another person that was involved in altercation shows BIAS on part of the victim (2) Case where woman was prego and she INVENTED a rape to explain the pregnancy – D was allowed to prove that it was a consentual relati that she had with another man that resulted in the pregnancy and rape was story to cover getting in trouble with the rents (ii) Where issue is CONSENT, may offer evid of Vs prior sexual behavior with the D!! (a) Consent is issue and past sex conduct with D is PROBATIVE!! (iii) Where the D is saying it wasn’t me, an identity issue, if that is the defense then Vs sexual conduct with another person at or about the same time is admiss to prove that the D is not the source of the semen or the injury to the V (a) Doesn’t apply to CONSENT, only in IT WASN’T ME situation (b) Limit to past sex conduct of V AT or ABOUT the time of the alleged rape (1) Becomes particularly relevant 6. 412a2 – allow in civil cases E to prove the sexual predisposition of the V is otherwise admissible undr rules (probative and blah) and the probative value substantially outweighs the risk of unfair prejudice – balance favors exclusion…excl unless can show that so much more probative that substantially outweigh the blah blh of unfair prejudice 7. PROBLEMS (i) 617 – not taking us thru it (ii) 6-18 – problem on RESISTANCE, hes aggressive shes passive, he begins to undress her she said doesn’t want to have sex…winds up not resisting bc shes afraid (a) Is the prior sex relati btwn D and C rel? and if so, HOW? (1) Yes, bears upon consent!! o Did she ACTUALLY consent? o Rxness of his belief that she consented? (2) Could come in!! prior sex behavior with the D, bearing upon consent! (b) Rel if C did NOT report the reape til several days, weeks, months after it occurred
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(1) Yes, CONSENT? Ds side o Didn’t report bc consented and maybe reported later from something else (2) Yes, FEAR? Ps side (3) 412 apply? – is it prior sex conduct the fact that she didn’t report it? NO…instance of intercourse but here the issue is the date of the filing of the report – that doesn’t deal with prior sex conduct so 412 has NOTHING to do with this – look to 403 to see if limit it o Tips in favor of admitting…unless probative val is subst outweighed by…..  If can benefit both sides then might confuse the jury  Probative value SLIGHT, and many rape cases not reported immediately anyhow  Don’t know why didn’t report right away…fear or consent issue? i. Since ambiguous that lowers the probative value and probably mislead or confuse the jury! (c) Rel if D silent after being informed of charges against him? ADOPTIVE ADMISSION? If mirandized – then you have the RIGHT to remain silent and silence becomes ambiguous!! (iii) 6-19 – what admiss in rape case (a) Marital status – typically NOT admitted!! Implies something about some level of sex activity on part of victim and that’s exclude don 412 unless V brings it up! (b) Victim had child out of wedlock – shes been unchaste in past blah blah…exactly what is excluded (c) Rep evid of lack of chastity – where 412 does admit it doesn’t admit REPUTATION or OPINION – this doesn’t come in…barred under ALL aspects of 412 (d) V made prior false accusation against another man of rape – false accusation of prior sex conduct? Accusation itself ISNT!! 412 does NOTHING to limit anything other than prior sex conduct; how is it rel – bears on reliability of the accusing victim!! Admissible impeachment evidence – its not evid of prior sex conduct at all! (iv) 6-20 megans law (a) Rule 403 – 404 would apply but 414 says it would come in so can use 403 to make it unfairly prejudicial? Rule that spec admit evid that shows that E is very probative and that rule TIPS to admission (b) Rule 414 – allows all that stuff to show a predisposition (v) 6-21 spilled ink
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(vi)

(a) Ink changed to reduce toxicity – Subsequent remedial measures  EXCLUDED – Obj under 407 (b) 5 prior instances of D spilling ink – trying to use to prove propensity – CIVIL case and SPECIFIC INSTANCES!! Needs to be rep and opinion and would have to be crim and wrong party offering it (1) Never allowed in civil case!! (c) Reputation for carelessness – civil case, right form, wrong party if it were criminal case (d) Said pay for dr – 409 the stmts offered to pay med expenses – EXCLUDED! (e) When doesn’t concentrate on where going often bumps into ppl and spills shite – party admission? Trying to argue habit he said OFT not always (1) You MIGHT be able to arg to keep out as propensity as saying he does it a lot and that puts his CHARACTER at issue (2) H objection could be raised but get around that with PARTY ADMISSION (3) EXAM – ALWAYS ADRESS RELEVANCY o With character evidence thing – enough to say its CIVIL case and its not admiss since character NOT in issue! (f) How careful was P behaving…character evidence – can ask what were you doing!! Her answer (g) Immediately preceeding accident, saw D running away from guy at who just yelled – that is Res Gestae (1) Part of same act, admiss to explain conduct before or after (h) Civ inadmiss…gen asking how she is as a person 6-22 (a) Didn’t get to this yet – this is NARRATIVE – need to get concise answers!! Usually proper objection raised after narrative answer has been given (b) Cabbie in 5 previous accidents all resulting in injuries – (1) H issue – subtle -- Personal knowledge issue here!! KNOW in 5 prev accidents…how does he know this? (2) CIVIL case – not going to come in UNLESS, Cab co is being sued for NEG RETENTION – if that’s the basis then the negligence of the driver is AT ISSUE and the prior accidents are proper E admiss as to form and bc of the content!! (c) Told him drive slowly and cabbie said I always drive slowly! (1) Admiss bc talking about specific instance that told him to drive slowly…but cabbies reply…
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(2) Can argue HABIT E? prob the type that’s not very credible (3) Sounds more like propensity and it would be inadmiss in civil case! (d) Offer to pay med expenses, not looking at rd, drinking (1) Offer to pay meds is OUT (2) The other 2 – admission by party opponent o 409 only excludes med expenses part of the stmt o There is NO dispute talk yet and no dispute as to validity or amt of claim so 408 wont keep out o The other 2 ARE admissible (e) Told him he was going to sue, (when yu see that, its now a DISPUTE) and cabbie said its going to be messy…had several whiskey shots and can go to jail…at trial decent shot of winning so why don’t pay med and 2k in suffering and wash? (1) 408 – offer to settle a dispute!! (2) Just saying I was going ot seek justice is NOT enough (f) Cabbie and comnapy were insured – 411- -evid of ins not admiss to prove liab or fault B. FRE 413 – E OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES 1. Became law in 1994 2. Aimed at liberalizing the admiss of E of the Ds other sexual conduct 3. open the door to E of the Ds commission of another offense or offenses of sex assault or child molestation – for bearing on ANY matter on which its relevant!! 4. 412 narrows evid admitted as to sex assuelt victimcs past conduct unless particularly probative in 2 narrow respects 5. 413, 414, 415 (i) Opens the door that 412 shut (ii) These are cases where the ppl that engage in these type of crimes have a predisposition to committing this!! (a) See the AC notes (iii) Seems to be some sense that ppl inclined to engage do so repeatedly and are unlikely to change (iv) Some of evid that come in may have come in anyway under 404b to show motive or intent but a lot of what is admitted is beyond what would have been admitted under 404b (v) Allows a gov’t to offer specific past instances of conduct to prove Ds character or disposition and then use that to prove D acted in a particular way on a particular occasion (vi) Acts that are admitted don’t require prior convictions or arrests (a) Any other act so long as ct finds that there is enough evid from which jury could conclude by a preponderance that the act occurred (vii) Atty try to fight it by using 403 and so far no ruling that 403 not avail under this
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(a) Most of cts that consider 403 objection HAVE admitted the E, theory when rule that makes evid admiss, that’s tantamount to finding that E is probative enough and evid to afasdfasdfasf makes it blah (viii) Most ppl think these rules are badly conceived (a) The AC begged congress not to enact and came up with amend to 404b and congress rejected that! (b) C. FRE 414 – E OF SIMILAR CRIMES IN CHILD MOLESTATION CASES 1. Became law in 1994 D. FRE 415 – E OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION 1. Became law in 1994 2. Because of this rule, his testi concerning relations/absence thereof with M. Lewinsky was allowed in case against him by Paula Jones

3/22/06 I. CHAPTER 7 – THE EXAMINATION AND IMPEACHMENT OF WITNESSES A. EXAMINATION OF WITNESSES – RULES 607-615 1. FRE 611 – (i) Ct has broad powers to control the order of presentation of the evid (ii) CALI – 14 separate provisions – (a) BIG DIFF – Fed Rules – Assume by time u get to ct u know what is direct and cross and CALI explains that to you 2. Each case presented LARGELY through testimony (i) P, D – this isn’t limited, P (rebuttal), (D) – sur rebuttal, (P) sur sur rebuttal (a) Each is limited to what went on before!! 3. When Ws are ACTAULLY called (i) DE by P (ii) XE by D – starting from here we have a SCOPE rule – limits the XE!! (iii) Rediret – P (iv) Recross – D 4. Limitations on what can happen on DIRECT and CROSS under 611 (i) DIRECT (a) 611(c) – Leading questions (a question that SUGGESTS an answer) should NOT be used on direct exam of witness (1) Almost ANY leading question can be answered YES or NO o Have you ever been to Alabama – NOT leading but YES or NO answer o Was the D driving at an excessive rate of speed – LEADING, puts words in the Ws mouth!!
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 Should instead say HOW was the D driving (2) Limitation bc the W is the one with the personal KNOWLEDGE!! The lawyer is PARTISAN and wants a particular outcome o Much more FAIR and UNBIASED presentation of evid if you allow jurors to hear it from the W the way the W saw it (3) A lot of cts allow leading questions on preliminary matters that don’t bear on material issues in the case (4) EXCEPTIONS – as may be necessary to develop the Ws testimony o Where you have a witness who is TIMID or WEAK, YOUNG, FORGETFUL, etc  FORGETFUL, when you ask non-leading and stares then can ask in a leading way…may draw objection but response, im merely trying to develop the Ws testimony i. This will trigger memory even if it gets sustained ii. Don’t want to abuse this!! o Where you have a HOSTILE witness  Not unusual to have to call W who may not like your side of case i. Ex -- Ps atty in wrongful term case will have to call someone from HR dept of the D!!  Permits you to use LEADING questions BUT FIRST, you MUST show the hostility i. Have to show by using NON LEADING question – lack of cooperation, etc ii. (ii) CROSS (a) 611(c) – LEADING questions are permitted (1) This is ALL you should ask on CROSS exam!! (2) ESSENTIAL on Cross Exam (3) CALI – limitation in the NOTES to rule 767  if the W is not adverse to you, you CANNOT use leading questions for FRIENDLY witnesses on cross exam! o NOT specified in the FED rules but the judge does have the ability to control it so some judges follow the cali rule (b) SCOPE – 611(b)
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(1) Cross should be limited to the subject matter of the direct AND (2) Matters affecting the credibility of the W (impeachment) (iii) COMPETING INTEREST (a) W Convenience – if want to go beyond scope of DIRECT with Ps W…just RECALL the W in YOUR Case-in-Chief so you can control the SUBJECT MATTER (1) If it’s a SMALL point then the inconvenience to the W would be TOO great to require them to be recalled another day (2) If its not going to HIGHJACK the other sides case then they MAY permit inquiry into additional matters o Hard to get ct to agree to that!!  Allowing XE to derail the case of the person who brought in the W  If go beyond scope of DIRECT you may NOT lead the W!!! (iv) How do you decide whats in the SCOPE of DIRECT? (a) Passenger in car asked about color of light when Ds car enter intersection? (1) Ps atty…XE – isnt it fact that D had 3 martinis before accident? o Depend on how ct defines what is scope of subject matter gone into on D, the rule may expand and contract  Key is who is at fault, D say offer nothing about anything other than the COLOR of the light, if want to go into other shite then call as your own witness on the REBUTTAL case! (v) 611(a) – (a) Ct shall exercise Rx control over mode ad order of interrogating W and presenting E so as to make the interrogation and presentation effective for the ascertainment of the truth, aboid needless consumption of time, and preotect the Ws from harassment or undue embarassment (1) CALI – requires J to be particularly careful where the W is under 14…they are VERY vulnerable! B. OBJECTIONS 1. gotta object the MINUTE you know when you need to make objection 2. if you DON’T make objection you WAIVE it on APPEAL (i) even if its highly prejudicial (a) Unless its PLAIN ERROR – almost NEVER happens 3. Usually objection is to the QUESTION
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4. Soemtimes it’s the ANSWER that’s objectionable (i) Non-responsive (ii) Narrative (iii) Speculation 5. Object on proper ground to answer and MOVE to STRIKE the stmt from the record – otherwise you aren’t preserving the issue for appeal!! C. FRE 615 – 1. Everyone invokes this 2. Deals with the exclusion of Ws 3. At the request of a party the court SHALL order W excluded so that they cannot hear the testi of other Ws and it may make the order of its own motion (Cali says MAY not SHALL) 4. EXCEPTIONS to SHALL EXCLUDE: (i) Party who is a NATURAL person (a) Cant ask that the D be excluded from CTROOM (ii) If you have a NON NATURAL PERSON – like corp or something – then they can appoint a REP and THAT person cant be excluded (iii) Person whose presense if shown by party to be ESSENTIAL to the presentation of the party’s cause (a) Usually EXPERT WITNESS (iv) A person authorized by stat to be present (a) Most common – a ct appointed translator! 5. RATIONALE (i) Easier to focus on discrepancies on W testi (ii) If hear each other might not have discrepancies!! D. PROBLEMS 1. 7-1: FORM IS EVERYTHING!! P sues D for BREACH of K (i) You live in FRISCO right? (a) Leading question…suggests the answer (b) You can just ask…Where do you live? (c) Cts may decide to allow since its prelim matter, not likely material to the resolution of any issue in this case (ii) You live in FRISCO or somewhere else? (a) Leading – still suggests the answer (iii) Where were you on June 1, 1992 at 9pm? (a) Facts not in Evidence? Not really if W is OVER 10years old its not viable objection (b) No objection here really (iv) What did you see and hear at that time? (a) Compound question? Supposed to ask 1 question at a time – too broad objection would be SUSTAINED! (b) Might be able to use FACTS not in EVIDENCE?? (v) So you saw sell to someone else?
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(a) Asked and Answered – Js not quick to sustain first A & A objection (1) If you make it a habit that is when you get in trouble (vi) Long explanation of what happened after saw D with competitor (a) Narrative answer!! 2. 7-2: Conversion case, P testi on DIRECT (i) When you saw D walk by at 330 on July 5, what did you do? (a) ASSUMING FACTS NOT YET IN EVIDENCE (1) Cant just jump ahead by placing facts not in evidence (2) Can say NO FOUNDATION too – since no facts that was in position ot see that or that D did that (b) If cant be answered yes or no its NOT leading!! (ii) What happened at 330 on July 5? (a) Asked and Answered (b) Assume fact not in evid – does assume something happened (iii) Did D, who you say walked by your house at 330, have anything in his hands? (a) LEADING – you are telling the W you had something in his hands (1) Instead say, did you notice anything about your D? (iv) Do you think D looked suspicious and shifty? (a) Leading – tells W that D looked either S or S (b) Call for SPECULATION – impermissible evidence (c) COMPOUND – 2 characteristics (v) Where exactly were you when you observed the D? (a) NO OBJECTION that works here!! (b) Proper in FORM and SUBJECT MATTER!! (vi) Long narrative answer (a) Narrative and non responsive – most of it departs from question asked of where were you? 3. 7-3: SCOPE – B employed as driver and detour to visit friend and involved in accident. ISSUE was he acting outside of scope of e’ment. B testi…asked only one question if he was on duty…on CROSS… (i) Were you distracted by friend P yelling at you from the sidewalk? (a) Cause of accident isn’t even an issue – BEYOND the SCOPE and IRRELEVANT (ii) Had you been drinking any alchi bev before crash? (a) BEYOND SCOPE of DIRECT (b) Possibly can get it in if to show that beyond his duties at work and therefore not on duty (iii) Describe what you saw immediately after the crash occurred? (a) BEYOND SCOPE of DIRECT (b) What are they going for here??

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(1) If something happened that related to duty then maybe not beyond scope but that’s far fetched?? Like what if he saw pinkslip that hes fired 4. 7-4: SUCCA MUCCA RUCCA – prominent local banker sues mayor for defamation…at trial P calls bus partner to testi, she says hes honest businessman…asked on cross (i) True that you cheated on civil service exam last year? (a) OBJECTIOn to this would be OVERRULED (1) Objection would be BEYOND SCOPE, answer affects credibility of the W, if she cheated shes not honest person if not honest she can be lying on the stand – this would be PROPER impeachment evidence! 3/24/2006 I. The IMPEACHMENT of a Witness A. 607 – any party can impeach any witness – 1. can impeach your OWN witness – you would have to attack ws credibility (i) when aware with your Ws problem bring it up on direct and that is BOLSTERING your W, that is NOT impeachment…just taking STING out of your opponents case B. IMPEACHMENT – act of bringing out E for purpose of undermining credibility of your W C. Don’t do intrinsic v. extrinsic D. Do MODE OF ATTACK 1. 4 DIFFERENT MODES (i) Testimonial Capacity (a) Perception – ability to perceive…could they have seen/heard what testi about (b) Recall -- memory (c) Communication – ability of the W to be able to communicate what they saw/heard (ii) Motive (a) Bias –Biased in a partys favor (b) Interest – interest in outcome of case (c) Prejudice – prejudice against party or position taken by him? (iii) Character – when testi place character for TRUTHFULNESS in issue!! (a) TIGHTLY governed by the RULES OF EVID (b) Convictions – rule 609 (1) (c) Acts – rule 608 (1) Prior untruthful acts (d) Character W – rule 608
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(1) To testi that W is a LIAR (iv) Inconsistencies (a) P.I.S.(prior inconsistent stmt) – RULE (1) One thing today something else another time (b) Contradiction – contradicts him or herself!! II. KEEP IN MIND can impeach ANY W!! III. Pretty much ANY question you ask on impeachment is fair game so long as you have a GF basis for asking that question!! IV. CL METHODS OF IMPEACHMENT A. TESTIMONIAL CAPACITY 1. Perception – FACT BASED (i) Poor vision (ii) Obstructions (iii) Poor lighting (iv) Was the W distracted (v) Was the W intoxicated 2. Recall (i) Focus on factors peculiar to the W (a) Bad memory (b) Substance abuse problem that could affect memory (c) Illness that cause memory to fail (d) Events that are not very memorable (1) Testi to transaction that happened 4 months ago and samte thing 40 times a day every day 3. Communication (i) Anything that affects ability of W to testify (a) Typical – have you taken any drugs or medicine that would affect your ability to testify (b) Insanity – doesn’t disqual as W but affects testimonial capacity B. MOTIVE 1. Bias (i) Biased in FAVOR (ii) What is the Ws relati to the parties? (iii) What the Ws relati to groups of which the parties are members (a) Church (b) Same law school (c) Etc (iv) Positions taken by parties – bias in favor of position that party holds! (v) When a part of group or something you HAVE to consider 403!! 2. Interest (i) EXPERT Ws usually have interest in case – usually being paid – and mere fact that getting some payment isn’t enough to show they have interest that should BIAS or PREJUDICE them (a) Always probe the interest the Expert W has?
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(ii) E’ee of company recently promoted right after subpoena to testi on E’ers side (iii) Promise of promotion, etc 3. Prejudice (i) Prejudiced AGAINST (ii) Dislike for particular party or their beliefs or position? (iii) Dislike toward group of which party is a member? C. INCONSISTENCIES 1. PIS 2. Contradiction (i) Really great if you can get a W to contradict on CROSS something they said on DIRECT (ii) If it’s a MINOR contradiction you don’t want to point it out but note it and use it in CLOSING! (a) If you highlight W may have explanation or other party on redirect fix it then V. FRE 610 A. Prohibits something that used to be permitted at common law 1. if didn’t believe in god they couldn’t testify before 2. NOW – expressly eliminates B. Evid of beliefs or opinions of W on nature of religions blah blah to show that the blah blah blah C. Cant use relig belief or opinion to attack the Ws credibility 1. BUT, if the W and the D are members of same small church or something then that CAN be used!! D. CALI pretty much IDENTICAL VI. PROBLEMS A. 7-5 – CROSS MY HEART 1. Said got home at 6 but really 645!! (i) Could be RELEVANT – just satisfy one impeachment criteria (ii) If relevant for impeachment that is enough for relevance (iii) Impeachment by CONTRADICTION 2. Going to lose job if found liable? (i) Affects motive – INTEREST!! 3. asdf (i) Scales tip in favor of admitting – impeachment by CHARACTER!! 4. sdfsdgf (i) attack on character – prior acts 5. intermitten amnesia (i) testi capacity – recall 6. Die hard 2 and not Cinderella (i) Prior inconsistent stmt B. 7-6 – BUT NOOOOO 1. march not may as testified
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(i) YES!! (ii) Impech by contradiction 2. Left work at 530 not 730 as testi (i) There IS a limitation – this kind of contradiction should have independent relevane to the case!! 3. Boss was wrong when testi that deposidted on march 4 th (i) Contradicting ANOTHER W – there is an issue there!! (ii) Not up to this W to conclude if another W was wrong!! (a) Question calls for conclusion of fact which is for the JURY to decide!! C. 7-7 – THE RIGHT DIRECT-ION 1. you are sis of D right? (i) MOTIVE impeachment – BIAS (a) Form of question wrong – its DIRECT and its LEADING question!! (b) Prelim matter? First must SHOW HOSTILITY, then OK to use leading (c) Form is improper, subject of question is proper (d) Its PROSEC witness, trying to show BIAS, not a problem (ii) Change it to say are you related to the D? 2. you facing crim charge of attempted murder (i) not 609 bc that deals with CONVICTION – here its just a charge (ii) INTEREST – motive to testi to get off (a) Maybe prosecuter is offering to cut her a deal!! 3. any deals been made in return for your testi? (i) If W with bias toward you, need to try to DESTING it!! (ii) First 2 try to lay bias and last to show there ARE NO DEALS D. 7-8 – BUDDIES 1. both members of gang?? (i) Shows Ps BIAS toward helping his fellow gang member (ii) What unfair prejudice can he claim? (a) In case like that…said it was highly prejudicial and low on probative value scale and the court didn’t see it in that way and let it in!! E. 7-9 – LOSING RELIGION 1. Father testi against her, they had previously had argument and she left the church (i) PREJUDICE – something that 610 doesn’t block even tho it does deal tangentially with religion VII. CONVICTION of CRIME – FRE 609 A. NO substitute for reading the rule – you REALLY need to understand it!! 1. Lays it out CLEARLY B. There is a portion of the rule that is being AMENDED – will be affected DEC 1st C. RULE
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1. Talks about use of prior crim convictions 2. A – primary part of rule governing what types of crim convictions can be used (i) A1 – not criems of dishonesty!! RESIDUAL group!! (a) Felonies – anything up to and including year is felony…a yr and a day is a FELONY!! (1) Other crimes RATIONALE o Someone who would violate a SIGNIFICANT law, might also lie under oath o Probative value is a WHOLE LOT LOWER!! Dealing with something not all that probative and there is no rule of AUTOMATIC admission like in A2 (b) Witnesses DIVIDED (1) Criminal D – it is VERY hard to get the evid admitted!! o Test: the probative value of E must be GREATER than the prejudicial value of the E o Usually end up EXCLUDING it (2) All Others – 403 o E admitted unless the probative value is SUBSTANTIALLyYoutweighed by the danger of unfair prejudice o Usually end up ADMITTING it o Danger of unfair prejudice to a party – this doesn’t usually unfairly prejudice one of the parties  One situation where it might – D witness in a CRIM case where W is a CLOSE associate of D, fact that W has a prior felony conviction can cause Jury to think of guilt by association (if BF felon likely D is too) (ii) A2 – easiest to apply and is being amended (a) Applies to EVERY witness – any crime of dishonesty or false stmt – misdemeanor or felony – it SHALL be admitted!! (b) Amendment – pg 227 – shall be admitted regardless of punishment if can readily be determined that elements of crime required dishonesty or false stmt by W (1) Crime LIKE obstruction of justice – many ways to do it…one way to kill W, one way to lie to cop investigating case o If that is the way that cime was proved then in order to prove obstruction then gov’t HAD to show that D lied…and it qualifies…admitted by way of dishonesty or false stmt o It would have to be an ESSIENTIAL element of a crime!!
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(c) Ex where doesn’t work – lie to someone to get them to come over and then kill them – that doesn’t work!! 3. B – time limit (i) Felony conviction or OTHER dishonest crime conviction has to have occurred w/I 10 yrs (a) Time starts running at date of conviction or release from jail whichever is later (b) Don’t know what the end date is!! (c) Over 10 ok if interest of justice served (ii) Prob value SUBST outwieight danger of unfair prejudice (iii) Written notice given and fiar opportunity to object 4. C – sitch that render prior convictions inadmiss (i) Pardons – by gov (ii) Annulment – conviction is VOIDED (iii) Cert of REHAB – someone is cert that person is CURED of crim tendancies!! (iv) If one of these 3, inadmiss if (a) If W has not had a subsequent felony conviction (b) Where those are due to a FINDING OF INNOCENCE (1) If pardon bc of official finding of innocence the conviction shouldn’t be used 5. D – juvenile convictions (i) General rule – don’t admit them (ii) Exception (a) If crim case and conviction is NOT conviction of the D, then the ct has discretion to permit if type that would have come in if it were an adult conviction and if ct decide its necessary for a determination of guilt or innocence (iii) Very difficult to get it in (iv) Ex – star has prior perjury conviction when 17 then pretty sure it will come in!! 6. E – makes it clear that pendency of appeal doesn’t make conviction inadmissible!! D. CALI 1. no distinction based on crime of dishonesty or not!! 2. AND only admits felonies – no misdemeanors!! 3. LIMITATION – cali 352 – that is limitation on admission of felonies in cali (i) Probative value is subst outweighed by poss of unfair prejudice E. RATIONALE 1. this shows a propensity to lie 2. you can infer that W is a dishonest person or is a person who is NOT truthful!! 3. these are highly probative of truthfulness, veracity, etc so the ct CANNOT exclude them!!
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F. PROBLEMS 1. 7-10 – Fried Forgery (i) S convicted of Forgery on 3 and charged with embezzlement in 4 th case (a) His testi about it – not admiss bc they are her prior convictions…not admiss for impeachment!! (b) Prior conviction as to her PROPENSITAY – in Prosec case in chief cant do evid to show propensity – even if could its not opinion or rep its prior acts – not allowed (c) Convictions fall under evidence rules!! (ii) He convicted not her (a) Forgery is DISHONEST – those wuld come in!! (b) Embezzlement – might come in under 608 but DEF not under 609 2. 7-11 – Medical Mal (i) Failure to file tax return (a) Not dishonesty or false stmt – looks like hes a tax protestor…not crime of dishonesty!! 3. 7-12 – One Bad Apple (i)

3/27/06 I. Review A. 7-12 1. attempted murder – probative value, if broke major lie maybe lie under oath (i) not very heavy weight – need probative value to outweigh unfair prejudice (ii) NEVWR going to come in in this sitch (a) Prob val is always going to be very substaintially outweighed 2. 2 yo assult conviction, 6 mos in jail and fine of 1k (i) Not a proper felony under A1 (ii) Only way misdemeanor can come in is if its crime of dishonesty 3. 12yo juvenile (i) Only if CRIM case and W OTHER than the D can it come in!! and Ct decides is NECESSARY for fair adjudication of issues (ii) Since its CRIM D it wont come in!! (iii) Beyond 10yr presumptive time limit 4. 10yo aggravated battery – got 2 mos, sentence suspended (i) Its been 10yrs – from date of release, since sentence suspended start with date of conviction 5. 5yo grand theft conviction, sentenced for 6mos in jail (i) Prob value outweighs unfair prejudice – crim D – prejudice TOO high even tho not SIMILAR crime (ii) Fairly prejudicial if ANY other previous criminal conviction!!
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(iii) If theft by false pretenses – then probably would be allowed!! II. 609 – subset of 608 A. ON THE BOARD 1. Felonies (i) Crim D – Prob val > unfair prejudice (ii) Other W – 403 B. NEEDS to be PROBATIVE of VERACITY!!! III. TRICK – 609 and 404 mix – testi – prior crime of dishonesty come in even if danger of juror misuse for propensity evidence A. D charged with FALSE Stmt 1. To a gov’t agent B. D testifies 1. XE – weren’t you convinced of making false stmt 2 yrs ago (i) Impeach by prior conviction, not bad act – hes charged with same violation that he was convicted of 2 yrs ago – no discretion on the part of the ct to exclude (ii) If it were a different crime like violence – kept out under 404 – and this is inadmiss as PROEPNSITY character evidence!! (a) Its inadmiss for one purpose – to show propensity to lie to gov’t agents (b) Admiss character as it bears on VERACITY of a witness (c) So LIMITING INSTRUCTION!! (d) Can use to impeach and ct CANNOT exclude it – 609a2!! C. IV. 608 – character for veracity A. ON THE BOARD 1. Character for Veracity (i) A – Rep and opinion (a) No good until after bad (ii) B – specific acts (a) No extrinsic evidence B. Ws credibility is ALWAYS at issue at trial 1. one way to attack W is attack character of witness (i) only character trait placed at issue is character for truthfulness C. 608a – permits to call character W to testi as to this Ws character for truthfulness by offer E of Rep or Opinion as to Ws truthfulness – just like under 404 but now offer as impeachment and only trait at issue is VERACITY 1. permits to call separate character Ws 2. LIMITATIONS (i) Cant call a GOOD character W unless the character has been attacked (a) Cant support until attacked (ii) The ONLY type of character E that can come in is that which bears upon truthfulness of the W D. 608 provisions allows some E of specific untruthful PRIOR acts
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1. acts that are NOT crim convictions – 608 doesn’t govent crim conv 609 does!! 2. if its other shite then 608 b permits to ask about spec acts on XE (i) also does NOT permit to admit ANY extrinsic E!! (ii) CALI does NOT allow question about prior untruthful act unless it involves a conviction!! (a) No 608b in cali rules!!! E. PROBLEMS 1. 7-13 (i) Can only ask about act itself not about the arrest (a) Objection, impeachment improperly brings in impermissible evidence (1) Arrest is prejudicial (ii) Problem with stmt re deceiving boss re train being late (a) Lacks FOUNDATION – how can W testi as to if boss was deceived!! (iii) Bribe official at computer co in 1989? (a) Does bribery bear on truthfulness? Is it a crime of dishonesty? Some may say yes, some may say no. (b) Prior act that bears on truthfulness? V. 613 – prior inconsist stmt rule A. Does NOT require that you show the stmt to the W prior to examining W about the stmt – in fact you can call another W to testi about stmt 1. if you ARE going to use prior stmt as impeachment you MUST provide W opportunity to explain the prior inconsist stmt!! 2. W has to be avail to be recalled bc has to have opp to explain prior inconsistency (i) If you are asking W about their own prior inconssit they have ability to explain then …but if bring something after they are not on stand that it becomes issue (ii) Other times this doesn’t apply (a) if the W is a PARTY (1) bc then he will ALWAYS have opp to get on stand (b) when we looked at H, impeaching H evid – prior inconsistent H can be used to impeach an H declarant – in that sitch since never testi and may not be avail don have to provide declt opportunity to blah B. cali pretty much same – ONE THING – prior inconsist stmt admiss for truth of matter asserted w/o restriction!! C. PROBLEM – 7-15 1. yes ffor impeachment 2. fact that testi in ct is inconsist says he is not being truthful and cant stick to story or changed his story VI. TESTIMONIAL CAPACITIES
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A. 7-14 – Psychotic Chips – Tort action for FI, D W, he yells to jury would u like my psychotic cips they are mind altertng … on XE, P questions 1. 2 previous hosp stays for undifferentiated schitzophrenia (i) Impeachment by testimonial capacity – fact that suffer from SERIOUS mental illness might affect ability to perceive and ability to recall (ii) This is PROPER on XE 2. Do his psychotic chips contatin mind altering substances (i) Only proper if E that he had eaten some of those chips (ii) Better to ask if he has taken any drugs or anything that affect his ability to testify 3. Was he under influence of alchi when saw alleged false imprisonment AND currently under influence of mind altering substance at time of trial? (i) Before CAN ask (a) If mind altererd condition at time of evern affects perception AND memory (ii) Currently CAN ask see part 2 VII. CONTRADICTION A. ON THE BD 1. XE okay to question 2. Extrinsic Evid ≠ admission except if non-collateral (i) Fact in issue (ii) Other impeachment B. VIII. OTHER STUFF ON BOARD A. US v CLARK – 1. Lenny: 2. Sheila: 3. George: IX. 612 – what happens to W that forgets – recollection – usually its your OWN W A. There is a 3 step process to refresh 1. have to get some answer on the record that indicates the W doesn’t remember (i) not enough if he isn’t saying it the way you want (ii) needs to say something like I don’t recall, I don’t know, I don’t remember, I forgot 2. not goverened by 612 – can show W or subject him to ANYTHING that will refresh the Ws recollection (i) 612 govern use of writings to refresh – that is most oft used (a) Can use Ws OWN prior stmt OR someone elses record of what happened (ii) If W doesn’t remember critical fact at bus meeting – do you remember what was served at dessert – if serve the same thing today might that refresh then serve it!! (iii) Playing piece of music on radio at time murder occurred (iv) NO LIMIT as to what you can use to refresh a Ws recollection
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B. C. D.

E.

3. if what you show is OWN prior recorded stmt – when the memory was FRESH and W actually precieved it – this is 803(5) past recollection recorded!! (i) This only works if its Ws own stmt!! 612 – if you use a WRITING in ct ro refesh recollection of W, you MUST show that to your opponent – no discretion not to! Says Other side HAS to see anything you show W at trial ALSO, if you show W anything while you are preparing him to testi at trial, ct has discretion to ask you to turn that over to your opposing counsel 1. big deal if what you show would be atty work product and contains some of your TRIAL STRATEGY (i) give D the Ps case – strategies, therories, etc (ii) if you are preparing W to testi don’t EVER use any writing you don’t want opposing counsel to see!! (a) Even selection of which docs you think is important is work product…don’t fuck yourself!! 2. Ct has DISCRETION 3. In CALI – its MANDATORY – if you show it to W you HAVE to turn it OVER!!! PROBLEM – 1. 7 – 16 – notes from meeting (i) Can give own notes -- can he read notes to jury? He can look to himself and either say refreshed or not (ii) Notes do NOT have to be authenticated – since not admitted into E, authentication don’t matter (iii) If written by someone else at meeting, S can still rely on them to refresh his memory re the meeting – still cant read to the jury (iv) Reviews during direct can be questioned on cross? Yes and opponent will have seen notes and may have copy of them too!! (v) If taken immediately after meeting and fresh in his mind – can admit it?? Yes, under 803(5)

X. PROBLEMS – REVIEW!! A. 7-17 – 1. isn’t it true only 4 parking spaces and not 5 (i) impeachment by contradiction 2. You’ve been arrested by child abuse? (i) Not a prior ―bad‖ act – its NOT a conviction!! (ii) Improper form, cant ask about an arrest (iii) Act of child abuse is NOT an act of dishonesty!! 3. Faked workers comp injury to collect benefits (i) That is OK, it’s an act of DISHONESTY – admissible under 608b 4. Told by boss that get extra vacation day if testi today right? (i) Impeachment by MOTIVE – interest!! 5. Convicted shoplift blah blah
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(i) Is this a felony or misdemeanor? Depends on what was stolen…if misd, then ask if crime of dishonesty – some cts hold it is if it involves active concealment!! (ii) Focus on if concealment or deception is proved, but in more cases shoplift isn’t felony so unless dishonesty its not felony 6. took do nto remove tag off mattress (i) not an act of dishonesty – now just looks like trying to have argument (ii) probably argumentative and harassing 3/29/06 I. REVIEW A. Tanner v. US – 483 US 107 – deals with when a juror can be asked to testi to IMPEACH a jury verdict!! II. PROBLEMS A. 7-18 – efamation dedux 1. D paper editor punched in nose (i) not proper bad act (ii) might show BIAS or prejudice on part of witness 2. Aware 2 incidents that sis cited for cutting in wrong location (i) Doesn’t look like hes got good basis for evid (ii) 404 rules – her competence as dr is AT ISSUE!! (iii) Similar prior acts that are in blah with opinion – character when charactere at issue but also impeaching shite given by W!! (a) Prior specific acts – can use on cross to undercut blah blah (b) Contradiction and admiss to chanllenge character E under 404 and 405 but 405 since its CIVIL case!! Use CHARACTER E rules!! Not impeachment E rules 3. sis partic in at least 800 but in depo 400 (i) prior inconsistent stmt! 4. didn’t u misrep your college class rank blah blah (i) act of dishonesty – untruthfulness - -bears on issue of if W is a truthful W (ii) Prior act come in under 608 to impeach character for truthfulness of the W B. 7-19 – the young freud 1. opinion contrary to main treatise (i) relevant, example of a question that could be asked to CONTRADICT the Ws opinion (ii) if it expresses opinion that CONTRADICTS issues in case – bears on facts at issue in case AND contradict expert – if he says no need to remove it and treatise says ALWAYS remove in that situation!! (iii) You can READ from the treatise – its an EXCEPTION to H – learned treatises!! 2. convicted of child abuse?
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(i) Conviction has to satisfy 609 – crime of dishonesty? NO!! (a) If admitted at all must be a FELONY – most child abuse IS, but depends…so may not be F…if it IS an F  403 – admiss unless the probative val is SUBST outweighed by danger of unfair prejudice to the PARTY!! Wouldn’t be unfairly prejudicial to a PARTY, since W is NOT a party 3. forged med records (i) prior dishonest act – 608b!! (ii) may be issue as to form of question – aksing if been fired prob not ok (iii) but asking about the incident is OK!! (iv) Personal knowledge issue – may not know why e’er fired him!! C. III. CONTRADICTION with EXTRINSIC E A. OK if NON-COLLATERAL 1. Facts in issue; OR 2. additional impeachment – contradicts AND something else!! (i) eg. Bias, prior conviction, etc B. Want to look for, when offer extrinsic E to contradict…does it do MORE than JUST contradict – if not then its COLLATERAL!! C. Simple rule – does it contradict AND do blah blah IV. PROBLEMS A. 7-20 – 1. XE – convicted of attempted robbery in 86 (i) 20 yrs ago, 10 yrs more than 10 yr limit (ii) Hard to imagine its ever going to be necessary blah blah (iii) Only in crim can bring those kind of OLD convictions in 2. Assume first allowed to be admitted and he denied it! Can they offer evid of cert copy of the shite? (i) Admiss – prikor conv is NON COLLATERAL – admiss to impeach by conviction AND to contradict!! (a) Assuming its admiss to impeach by prior conviction!! (b) If NOT bc its too old, then all it does is contradict the fucker!! 3. XE asked if earing hearing aid at time of sale. He said yes, can opposing call diff guy to say NOT waring (i) 2 things – extrinsic E – contradicting AND bears on Ws capacity as a W to proceed 4. white not read sneakers – deny that he wore white, can they call someone else to testi they WERE white – RELEVENCE being SCREAMED OUT!! (i) contradiction by extrinsic W – does it do anyting else?? NO (a) clear example where impeachment by contradiction on a CLEARLY collateral point (ii) rule desiged to avoid wasting time – why contradict on point we don’t care about
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5. in depo he said he was fisrt on there for sale, on direct said was 3 rd or 4th…if say wasn’t there can rebuttal W blah blah (i) prior inconsistent stmt – it contradicts 6. owes large sum of money and denies it…call another blah (i) w bias is NEVER collateral – contradicts AND proves BIAS!! B. 7-21 – more perjury 1. Goings On: (i) Lenny (CHARACTER WITNESS!!) – Clarks Rep = honest (ii) Sheila – (a) Lenny is a LIAR (b) Clark’s reputation = liar (iii) George (a) Sheila is a LIAR (b) Lenny’s rep = HONEST 2. C expelled from night school for cheating (i) 404a and 405a – when place character in issue == spec acts can be brought up on CROSS to test reliability/cred of Ws rep evid or opinion! 3. S – in my opinion, L is a LIAR (i) Permissible – IMPEACHMENT by Character rule – 608a – permits impeachment of W by character E!! 4. Everyone says Clark is not truthful…no veracity AT ALL (i) 404 – bc Clark is the D!! (ii) The 600s deal with the character and impeachment of W (iii) The 400s deal with the character of the PARTIES!! (iv) Can be called to elicit her opinion OR rep evid as to the Ds character for veracity – rel bc hes been charged with PERJURY!! 5. G,Ss ex, called to testi on Cs side – S liar and Ls rep is honest (i) S is a LIAR – 608a  can impeach W by offering character E.. (ii) once impeach by bad character E, can rehab by showing bad shite!! (a) Opens door for testi that Ls rep is one of unimpeachable truthfulness! C. 7-22 -- heroin in shoe…denied being in constp 1. cross – did he have H in shoe when apprehended? (i) It’s a fact in issue – but is it IMPEACHING? (ii) May not be able to use as contradiction (iii) 404b – proof of ANOTHER act!! Fact that had H when arrested may bear on if involved in consp to import H!! 2. if permit and he deny having H in shoe, can the ycall deputy blah blah (i) contradicts and if its admiss under 404b to prove conspiracy, does bear upon fact that is at issue in the case and its non-collateral D. 7-23 – a prosec for felony and fellow gange member blah blah… 1. asked if belongs to same gang as D on CROSS– (i) bias – testi favorably towards D bc member of same gang
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E.

F.

G.

H.

2. says no and they call cop who specialize to show they DO belong to same gang and that gang known for lying to protect fellow members…found guilty blah blah 3. cop… (i) contradict – AND its also evid to show HONESTY of the party – rules of gang are to LIE to protect each other – continues to show bias AND motive to continue to lie since rules of gang say that! 7-24 – Edna to Rachel to Frank 1. asdfasdffs – rebuttal P calls R who says opinion that E not truthful person..allowed? (i) YES – 608a – impeachment by character evidence!! 2. in surrebuttal D calls new W, F who says she has STELLAR rep for truthfulness in community (i) admis sunder the SAME rule – rehabilitation evid also governed by 608a – once offer -neg character E, can rehab by POSITIVE E bearing on that trait – truthfulness, veracity, etc 7-25 R charged with unlawful poss of firearm…Rick 1. Rick – on cross –t (i) his is a DISHONEST act – 608b prior untruthful acts 2. he denied making flase stmt – blah blah (i) ERROR – 608b SPECIFICALLY excludes extrinsic E that prior bad act occurred!! 7-26 – slip and fall accident – B said saw boxes fly all around I as he fell 1. cross – Ps counsel – failure to mention in depo the flying boxes (i) can you contradict by omission? Atty trying to get at the fact that if it really happened unusual that didn’t bring it up before blah blah (ii) impeach by prior inconsist stmt – prior stmt that omits sig fact is inconsist with later stmt that ADDS that fact (iii) significance of fact is the key!! 2. Ps counsel also ask if I ever fired her from a job. She said no, can they have former co-worker testi that she was fired by I (i) Used to contradict and also goes to MOTIVE – not if just E of prior bad act … but it contradics and BIAS – sig bc I is party!! If I was no one then it would be COLLATERAL but its NOT!! 7-27 – weed found in backseat of car…call marcy to say ma has blah blah for truthfulness and veracity 1. objection sustained bc rehab cant happen til after ws character is called into blah (i) cant say good blah blah unless bad first!! 2. after MA testi on direct, prosec cross suggesting she recently fabricated testi – on redirect …she said she learned of it immediately after forfeiture occurred…what did you do? Immediately told Jillian same thing I just testi to that H unloaded and repacked bag in back seat before leaving car (i) impeachment – it rehab the W!!
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(ii) recent fabrication claim – admis sin any event to rehab – under 801d1b, met req to admit for SUBSTANTIVE purpose as well!! BC rule says that where W attacked for having recently fab testi, prior consistent stmts are NOT H!! Can be admitted to prove the TOMA!! V. HYPO A. VI. CHAPTER 8 the COMPETENCY of Ws (FRE 601-606) A. Competency – WHO may testify? 1. Presumption of Competency – FRE 601 2. Dead Mans Statutes 3. Understanding Obligation to be TRUTHFUL – FRE 601 4. Requirement of Personal Knowledte – FRE 602 VII. PROBLEMS  A. 7-28 1. were you convicted of armed robbery in 1990 – (i) Can ask on direct to lessen sting…too old so hard to see why want to bring it up 2. did u know that A was previously convited of conunterfeit in 1991 (i) previous conviction of the D – for the same crime as now charged – this is CHARACTER – Prosec cant bring in til D opens the door – regardless wrong form, needs to be REP or OPINION!! (ii) If it was asked on CROSS  permiss bc tends to bear on credibility of the Opinion E!! can get limiting inst that shes not type of person that engages in blah 3. saw A for under 1 min thatn 10 min like you said (i) not extrinsic, contradicts, capacity of W perhaps? 4. hated A since promoted ahead of you, isn’t that right? (i) Goes to motive, bias, prejudice, etc 5. betty sue, shoplifting, correct? (i) Bears on veracity? Depends on elements here!! Amandas notes  7-29  1. on direct examination, cannot open the door to character evidence [officer is likely testifying for prosecution]  D must open the door first  so improper character evidence in prosecution’s case  is there an additional relevancy?  if relevant to undermine a w’s opinion testimony- 608 and 609 rules  to shed light on D’s character – 408  if accused is both, then consider admissibility of character evidence on both 600s and 400s
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 2. defense attorney is offering this  relevancy? why defense attorney ask this question?  offered to show bias in favor of prosecution or prejudicie against N  might not be type of evidence admissible under 403  unfairly prejudicial to D so not likely will get an objection but should not ask this question  3. extrinsic evidence must be non-collateral  offered to show bias AND contradicts him  4. embezzlement is a dishonest act so could be asked if embezzeled from employer [608b- C-E] but cannot be asked about anything short of a conviction  proper impeachment by asking about an untruthful act under 608a  but if denied then cannot disprove it by offering extrinsic evidence to prove the bad dishonest act  [non-collateral rules applies to other extrinsic evidence]  30  1. proper impeachment by contradiction  if says no, then can offer the treatise to prove that he is wrong about his opinion that is in issue in the case and offered not just to contradict the W but to prove what it asserts  2. proper b/c its an omission and significant omission that makes the stmt….  3. asked about a prior convictions  prior convictions subject to 609 limitations  filing false income tax return admissible  if denies it, proving a conviction that the ct must allow to come in AND contradicting the W  31  1.  a- substances of question seems to be fine  b- probably leading: rephrase- what did you observe? – must work your way up to it before ask a leading question  c- proper  d- may be a hearsay objection to what he said  if actually the words that formed the contract, then admissible  e- object on asked and answered: if asked and answered occurs more than onece, then asked and answered objection becomes a problem  red flag! ―repeat…‖  2.  a- so called agreement = may be argumentative  calling it a ―so called‖ agreement makes it look like that you do not believe there was an agreement which is the issue of the case  b- unintelligible question  c- irrelevant
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 doesn’t bear on credibility or the fact in issue  d- if evidence that relevant, then proper  32  1. if can show that hostile W by first asking a non-leading question, then if W appears to be evasive then ask that W be declared hostile and then ask a leading question  2. if things started to get heated and that’s what lead up to what happened, then will not be beyond scope of the direct  3. attempted impeachment  trying to impeach prior prosecution W by prior conviction  but defense attorney would probably not do this  admissible under 609 subject to 403  but if defense attorney, ask if this is unfairly prejudicial to my client  cannot object to own question b/c would be invited error if goes onto appeal  4. proper  objections: undermine credibility of W but do not smear character too bad b/c do not want D’s character smeared by hanging out these guys  33  1. prior recollection recorded  1st try to refresh his recollection and if so then testifies based on memory  if doesn’t remember then have to lay foundation for past recollection recorded [the elements- factors]  2. either refresh recollection and they testify from memory OR you read the paper into evidence  3. if judge sustains the objection, the W has already heard the name of the restrautrant so hopefully refreshed W’s recollection  4. coaching the W which is not allowed  if attorney shows him the note, 1 ST MUST SHOW TO OPPOSING COUNSEL, so if on other side then admit that note into evidence to impeach the W AND discredit the lawyer  5. could give him an ihop breakfast on the stand to refresh his recollection  no limits [except stripper, etc]  34  on trial for perjury, so situation involves overlapping uses- 2 uses:  1. brothers testimony to show that is a liar so likely lied in the trial  404 does not allow this  prosecution is trying to open door under 404a  2. character trait for truthfulness is allowed under 608a  can bring in a character W to testify to primary W’s character  so give a limiting instruction: can admit the evidence as bears on W’s credibility but cannot offer evidence to show that has propensity to lie  RED FLAGL! D is a party who is also a W, esp if party is charged w/ past false stmt, takes the stand and asked to do something that bears on their credibility  solution:
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 limiting instruction  could be excluded under 403, but W’s credibility is so central to the case that admit it under limiting instruction which is not helpful  THE COMPETENCY OF W  Judges are not competent W  limit to what jurors can testify to  competency  W’s ability to tell the truth and know the difference between the truth and lie  601 however, in civil actions as to which the state law applies the decision, the competency of the W will be determined as to state law  specifically intended to refer to the dead-man statute  no federal dead-man statute but many states have them  dead-man statute  one party has died so cannot contest the facts  to be fair, do not allow the other party to testify  but some states allow the surviving party to testify as long as there is collaboration of the facts  CA approach does allow the party to testify and unseals the dead party’s testimony  allows hearsay  CA 1208?? allows the dead person to talk  605- competency of the judge of a trial as a W  the judge precidening at the trial may NOT testify  incompetent W as a matter of law  no objection need be made in order to preserve a point on a appeal  if judge has personal knowledge concerning the case he should excuse himself  CA does not absolutely prohibit the judge from testifying but bars the judge from testifying if the opposting party objects to it  if call judge to testify then deemed as consenting to a mistrial  if opponent objects, then judge must call a mistrial and the case is assigned to another judge  no attorney, in right mind, would call a judge to testify  committing on evidence is not testifying  so judge can comment on evidence  606  jurors are incompetent to testify about the case in front of the jury  this rule does not prevent a judge who catches misconduct to call the juror out of the presence of the jury to testify about the misconduct  early on should learn about any personal knowledge that jury may have about the case and the juror should then be struck  in CA jurors are not per se prohibited from testifying but calling them is deemed to consenting to a mistrial if the opponent objects which will cause the judge to call a mistrial and a new jury will have to be seated
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 606b – to what extent can a juror who set on a case offer a testimony that impeaches the verdict  impermissible subject matter  may not testify to any conduct during the course of the jury deliberation  cannot testify to why members of the jury decided to render the verdict they did  permissible subject matter  extraneous prejudicial info was brought to the jury’s attention  bailiff came in to the deliberation and told them to hurry it up b/c have a bball game to watch  new amendment does permit jurors to clarify errors in the verdict form  that type of testimony should not be an issue b/c should poll jurors before they leave the court room  tanner case  D convicted of mail fraud  jury testified to jury behavior  drank alcohol during recess; smoked; cocaine  judge said that 606b bars this kind of evidence so juror cannot testify to this  is this alcohol extraneous? NO, this is an internal observation  things you eat, poor nights sleep, viruses may effect how you think but how you think is internal to jury deliberation so prohibited from impeaching the verdict under 606b  extraneous may be testified to  brining in a newspaper; someone trying to influence the jury deliberation, etc  in CA is less restrictive  any admissible evidence that is of such a character as likely to influence the verdict improper  in CA the judge thing could come in but the effects of the alchol and drugs could not come in  but still does not allow testify to the mental processes of the deliberation  judge could always call jurors in one by one outside of trial to question their behavior  hypnotic recollection- reliability  sometimes people who forgot will remember if hypnotized  problem: whether knew- personal knowledge or was suggested to them through the hypnotics or brain is filling in gaps  require personal knowledge, so since do not know what is going on during hypnosis tends to be a presumption against hypnotetic  case- don’t remember how the gun went off after having a big fight  after hypnotized did remember  picked up the gun and w/o touching the trigger it went off  refused to permit this in
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 other evidence: gun was tested and did have a tendency to go off so wasn’t like testimony was completely unbelievable  on appeal, s. ct said unconstitutional in a CRIMINAL case to have a per se rule prohibiting a D’s hypnotic recollection  ct did not say that this evidence should come in but need to know more about how the hypnosis was conducted in order to determine whether it should be admitted  D has a constitutional right to present a defense and testify so before can bar such must make some kind of infer:  how conducted? most cts require that a pre hypnotic interview and the hypnosis itself must be recorded on video  by who? done by a licensed psychiatrist  what W knew before and what knew after  CA specifies the kind of conditions that must be meet  LOOK AT RULE  several states require specific rules that must be adhered to  mostly just apply to criminal cases, and do not ever allow hypnothic recollection in in civil cases

KIMS NOTES Class Notes 032906 AND 033106 (all but part of 7-28 on 331 tape) DONE FOR OUTLINE Narrative Can object to a question that calls for a narrative (just too broad); can also object if the question is ok but the W becomes too long-winded in the answer. 1. 7-28 a. 609(a)(1)?? maybe – criminal trial, but this is not the ∆ - really a 403 test. But, this is the prosecution W questioned on direct by the prosecutor. Relevance? Guilt by association problem? ?? correct – see tape for 032906 b. No – crim conviction that is more than 10 yrs old pros cannot get into character at all until ∆ opened the door; also bad act and proper form is only reputation and opinion – i. Get tape 032906 c. Impeachment by contradiction correct could also go to bias d. Impeachment by motive; prejudice correct e. Not useable for impeachment b/c not a crime of dishonesty i. Under new amendment this is a crime of dishonesty f. Relevance? 403? Not a crime of dishonesty, and W is not ∆, so only test is 403. correct g. Relevance? Correct - Irrelevant and wrong kind of bad act.
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h. Possibly useable to impeach under testimonial capacity – but it seems like a long shot correct i. Impeachment by contradiction; prior inconsistent stmt correct i. This is a compound question and is therefore confusing. Should be broken into parts j. Melissa – no b/c that would be propensity character evidence unless counterfeiting is found to e a crime of dishonesty or falsity and then the judge must allow it in under 609; Mistral – yes? Same? Not done in class 2. 7-29 a. No – propensity character evidence correct – this is on prosecutor direct and ∆ did not open the door i. If attack on the ∆ consider 404 ii. If attack on the witness, consider the 608-609 rules iii. If W is ∆ need to consider both b. No – arrests, not convictions incorrect i. this is the defense offering the question and could be asked to show bias of the police ii. pros would not object and make no sense for the defense to offer c. No – this would be extrinsic evidence for specific acts i. Would have to be non-collateral BUT it goes to show bias d. ? cannot ask about the indictment – form of the question is wrong – under 608 would be able to ask about the act, but cannot bring up extrinsic evidence (608(b)). 3. 7-30 a. Yes b/c cause of death would be a fact in issue correct i. Plus, thru hearsay rules, can offer the portions of the treatise for both TOMA and contradiction b. Impeachment by prior inconsistent stmts correct – significant omission is treated as inconsistnat acts c. No incorrect i. this is a crime of falsity, so the evid cannot be denied, contradicting the W also, so accomplishes two things 4. 7-31 a. Permissible correct (could be seen as leading, but unlikely) b. Permissible incorrect – this is leading c. Probably ok, correct d. Not permissible – compound question correct; plus could create a hearsay problem in asking for what they ―said‖ – object as ―calls for hearsay‖ e. Asked and answered correct f. Asked and answered incorrect – this is Cross and can re-ask now that it is cross – but this is argumentative and still not allowed. g. Asked and answered incorrect reason – impermissible b/c the question is unintellible. h. Irrelevant correct
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i. ??? fine if its relevant; unknown from facts 5. 7-32 a. Yes if he has them declared as hostile witnesses first correct b. I think so if the prosecutor also asks about the card game as part of his case in chief (it is unclear from the question what part of the evening the prosecutor is discussing) correct – as long as questions are not beyond the scope of direct c. This question makes no sense. The scope of direct sets the scene for the scope of the cross. It is immaterial to the direct what is asked on cross – it is too late. i. Incorrect – this is the ∆ asking – this would be invited error (get from tape) d. Yes – they are both hostile to the prosecutor and friendly to the defense. Get from tape 6. 7-33 a. No – he can show R his notes and ask R to read them to himself to refresh his memory only correct (but eventually might be able to bring in as hearsay exception – past recollection recorded) b. Yes – refreshing recollection can use to refresh – but W cannot keep the notes in his possession during testimony c. Yes – can refresh by any means necessary (or is this leading?) incorrect would be objected to as leading – but also a 611 refreshing memory technique d. Same as C – but might ruin credibility to the atty coaching the witness e. Anything – yes, inadmissible docs may be used b/c they will still not be admitted – they are just used to refresh 7. 7-34 a. Yes b/c W credibility is always an issue and this is an issue of honesty i. Two uses – 1. likely liar but 404(a) prohibits this 2. she is a W so character trait for truthfulness is always allowed a. always allowed under 608(a) ii. SO judge issues limiting instruction: goes to honesty now, but not to whether W lied last time iii. LOOK OUT FOR: 1. ∆ is a W; takes the stand; and has said something impermissible under 404. READ: Tanner v. US 483 US 107(1987) Next: only read assignment 26 (I already did this)

Witness competency rules: Rule 601: every witness is competent Judges are not competent to be W in the cases they are hearing Jurors cannot testify Under CL: this was not the case – there were many bars to testifying W must understand oath or affirmation and agree to tell the truth
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Insane people used to be barred – not the case now Parties could not testify – spouses could not testify – not now Convicts could not testify – now we have 609 Rule 601 however clause – defers to state law Designed for deadman’s statute (Fed does not have a deadman’s statute Two parties to the action and one is dead, so that party can no longer testify May be completely barred, may be somewhat admitted, in CA may allow dead to talk To be fair to the party’s estate, the living party cannot testify either. CA: unseals the lips of the dead person – CA 1261 – allows hearsay w/ corroboration concerning the event or transaction

4/3/06 I. REVIEW – What Ws can testi at a trial II. Competency of Judges at Ws A. 605 – Judge to W is incompetent as a matter of law to testi at trial he is presiding over!! 1. Don’t need to object to reserve the point – prevent Lawyers having to object and then judge y has to rule to that!! B. CALI – doesn’t absoulutely bar him from testi – only does if the opposing atty objects to it 1. if you call a Judge to testi, that is deemed to consenting to a mistrial – he can testi unless opponent objects and if he does he MUST call a mistrial and then case is reassigned to ANOTHER judge!! 2. No atty would consent to have Judge testi esp against their side!! 3. cat be sworn in as W!! III. Competency of Jurys as Ws A. 606 – incompetent to testi in front of jury in case where they are seated as a juror 1. doesn’t prevent from calling juror out of presence of jury – wrongdoing on part of jury – can testi to that 2. cant testi to case that they are sitting on in front of remainder of the jury!! B. 606b –permiss and inpermiss subject matter 1. if some juror says – lets just draw straws and see who is going to win – that would be something about which the juror cannot testi – cant testi as to WHY they decided to render the verdict they did!! 2. BUT, except as a juror may test as to whether extraneous something info was brought to their attention C. TANNER CASE – jury from HELL 1. mail fraud case 2. juror came to testi as to some of the jury behavior during the case (i) 7 of them drank during recesses
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3. INTERNAL matter or extraneous influence being improperly brought – O’Connor wrote the majority – doesn’t matter its an internal influence (i) Just like if a juror was suffering from a virus or something (ii) How you think is affected – blah blah – cant impeach verdict!! D. IMPROPER EXTERNAL SHITE 1. juror doing experiment and then reporting results to jury 2. newspaper accou nt of the trial 3. ct room personnel trying to influence process E. CALI – 1. liberal 2. language – any admiss evid as stmt made w/I or out of jury room, if of such character as likely to influence verdict improperly (i) doesn’t allow to testi as to mental processes of the shite!! IV. The use of HYPNOTICALLY blah blah A. RELIABILITY – need to use reliance B. We don’t know how hypnosis works and why it works 1. sometimes ppl who forget important info, under hypnosis they remember it (i) are they actually remembering about which they have personal knowledge (ii) require personal knowledge – if no indication that knows then that person shouldtn testi (iii) require reliab and if don’t know that it is cant admit (iv) don’t know what happen during hyp so presumption agasint admitting hypnotically refreshed recollection!! C. CASE about it!! PER SAY rule in the state where the case was!! There was OTHER evid and her testi wasn’t completely unbelievable but w/o it she was convicted 1. the SC said it is unconstitutional in a CRIM case to have a per say rule prohibiting a Ds hypnotically refreshed recollection – didn’t say that it should have come in but says we need to know more about how hyp was conducted to determine if it should be admitted D. Ark v. Rock – crim case cant have per se sule that bars a Ds hyp refreshed testi E. CALI REQUIREMENTS – look this up!! Limit to CRIM – a lot of other cases do this 1. Related to something they DID have 2. Substancepreseverd in written audiotape or videotape form 3. How its conducted – written record documenting Ws description of the event 4. All the info provided to the Hyp – did the yknow enough to suggest anything 5. Subject has to give informed consent to H 6. Have to tape it – including pre and post interviews 7. Has to be by licensed med dr, psychologist, blah blah marriage therapist 8. Pretrial hearing where all this hashed out to determine admiss V. PROBLEMS A. 8-1 – Robin the Hood 1. cantknow what was on his mind unless he tells her – she cannot possibly have personal knowledge as to what he was thinking – must have told her – can be
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B. C.

D.

E.

F.

G.

H.

attempt to call in – can come in under H if stmt against party opponent so cant come in under that – state of mind exception – she can testi to his state of mind re depression since he said that to her 2. might have had opp to observe him and tell he was despondent 8-2: 1. can child stand up to cross exam? If cant have to strike their testi 8-3: Anyone But You 1. no 2. no, reversible error ---auto issue on appeal don’t need objection (i) in cali – if no one object than she can 3. nothing in rules about it – anything wrong with having Bailiff put down revolver and testi 4. again prob should have throught that through and gotten a new one – can get a new one fr that testi 5. yes 8-4: 1. no one object – anything judge can do? (i) You HAVE to object – have them approach sidebar to give opp to object out of presence of jury – no one wants to object if member of jury have something to say 8-5: 1. didn’t talk about what have to do 2. interpreter is an EXPERT WITNESS – how handled (i) 604 – makes the subject to provision of rules relating to qual of expert (ii) Fact that flunked class- mean he cannot be found to have sufficient expertise to work as a Spanish language interpreter – have to take oath or affirmation that take true or blah blah (iii) Looks like she WONT be the interpreter 8-6: 1. model code of prof resp – more easily impeachable for interest and less effective w – and opposing may have issue challenging credibility 2. in ineffective position of arguing OWN credibility 3. professional ersp rules may bar lawyer from doing so 4. 8-7: 1. broad dead mans stat – cant talk about it 2. if written – parole E rule stopes you from testi about it!! 3. best evid rule require that if proving terms of a K, you have to produce the WRITTEN K!! 8-8: 1. if it did involve perception is he disqual as a W? (i) 601 broadly inclusive – jury needs to weigh it!! (a) Can be completely impeached perhaps (b) Matters of impeach not matters to disqual him as a W!!
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I. 8-9: 1. need to have SOME recollection!! 2. written stmt to what she know and what H knew owhat she knw, tape pre and post and pretrial hearing – go thru the cali rule!! J. 8-10: 1. mere fact that addict, doesn’t something impeachment – using any drugs at time of incident or today at trial VI. REVIEW SHITE A. 8-11: 1. can she differentiate lie from truth 2. yes can testi, can be impeached – no – prejudice!! 3. yes can tsti – can be impeached – perceived 4. as long as not judge or jury sitting on case – otherwise presumed competent as long as take oath and no other reason to think shes not competent!! B. 8-12: 1. can have perse exclude teti of W 2. per se of D cannot occur!! C. 8-13: 1. dead mans issue – good illustration as to why have it!! 2. depends on Jx – Idaho would BAR the testi – since oral no way to prove it!! 3. some permit so long as corroborated by OTHER E!! D. 8-14: 1. VII. Authentication/Foundation A.

4/5/06 I. Authenticity/Foundation A. Can be that didn’t estab personal knowledge B. Fed rules tell you HOW to authenticate but no reason why C. WHY – Relevancy – 1. if you are prosec murder case, and want to show gun, need to show its rel – if died from poisoning its not rel, if died from gunshot and gun somehow linked D. Establishes RELEVANCY E. And estab THIS IS WHAT YOU SAY IT IS! F. Conditional relevance issue\ G. Need to offer SOME E to show that the exhibit you are offering is REL and what you say it is!! H. Need to offer enough so that trier of fact can find that it is what you say it is – 901a I. 901b – gives you ILLUSTRATIONS – they are NOT exclusive means of proving anything 1. Have to figure out way by use of EE to prove blah balh
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2. don’t memorize 3. CALI – similar – deal with written docs…read it!! And the AC notes on the cali shite!! J. Provision for SELF AUTHENTICATION 1. 902 in FED – certain types of evid do NOT require EE to prove that doc is what you say it is, fed says it can be ADMITTED 2. CALI – certain types, you have a PRESUMPTION that can be rebutted 3. deal with docs under SEAL – like a treaty, court copies of docs, like cert copy of birth cert, copy cert as correct and its under seal, newspaper and articles, 4. don’t need to prove evid to say it is what it is, it does it itself K. how get E in where not self auth 1. need one authenticating witness (i) hypo re gun murder weapon – (ii) have cop resp to crimescene on stand – intro to gun (a) ask to place exhibit in front of him (b) if its one of a kind that can suffice to authenticate it!! 2. OR parties can stipulate it L. PROBLEMS 1. 13-1: (i) Phone convo (a) Person Called – need to show one who ans was the one that was called (1) If resi need to show it was registered to that person, dial that number and need to show that the person ID themselves as the person who was being called (b) Business Called – need to show that subject matter of what they engagegd in (1) Need to show number dialed was number reg to bus and then show that you reached – transacted bus in what they engage in (c) Try to show who it is you are talking to – if you recognize the voice – incoming and outgoing calls – incoming you just pick up – need to use voice recog since you didn’t dial!! (1) Something that rules for authenticity SPECIFICALLY list!! (2) If you recognize someones voice that is enough – you have PERSONAL KNOWLEDGE as to what its like!! (d) Rules even contemplate AFTER ACQUIRED familiarity!! If you can relate it back to the first call that works too!! (e) Incoming calls – if you ARE familiar that is the EASIEST way (1) Also something called the Reply Doctrine – can be used for convos and writings – another common sense thing, if you call someone and then have them call you back, and its ANOTHER voice, from same business, now you can authenticate incoming as having come from bus you called
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before…auth the OUTGOING call, you dialed bus number, discussed something in nature of business, etc – must have been responding to reuqset you made in authenticated call meaning it’s the SAME business!! (ii) A business Associates HW (a) Familiarity – non expert opinion on handwriting (b) Someone who SEES it all the time, need to ask witness if he has seen boss sign his name, are you familiar with what it looks like, show sig on doc and say is this the one by your boss? (c) Can call a HW expert – the expensive way (d) Have a KNOWN handwriting sample by person who signed it, auth. And offer K with sig and have the JURY compare it, they are competent to make a non-expert HW comparison!! (e) 3 ways (1) Someone familiar based on pers know (2) Expert can testi (3) Can just offer known sample with questionable doc and let jury figure it out (iii) A newsweek magazine (a) Self authenticating document (iv) A diet coke label (a) Trademarks are self authenticating!! (v) A photo of the D (a) Have to show its fair and accurate presentation and conditions are substantially same as event you are using it for (b) Who call to authenticate the photo? (1) Photographer (always) (2) If its just to auth that its photo of D, just someone who has familiarity of the D (anyone who has familiarity with what is photographed) (vi) A blueprint of a house? (a) The person who drew it can do it (b) Depends on what you need it for (1) If doesn’t matter if auth to scale and hidden details like wiring and plumbing aren’t spec, anyone who is generally familiar with house then can use it – if just for LAYOUT of house – just need to be familiar with house like photo example (2) If isusue ahs to do with shtie – scale, invisi shite – then need to draft with blueprint company (3) Public record, cert – they can cert its record they have on file but since not made by the e’ees not cert the actual CONTENT!! (vii) HYPO – Xray
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(a) What yo have to do is auth by auth a PROCESS, have to be able to show accurate record made of WHO was being xrayed – in good working order, that they acted properly, etc. 2. 13-2: (i) Photo of scene of accident (a) Anyone who was at the scene can authenticate it (b) FOUNDATION – essentially, were you a witness to the accident, here is purported photo of the scene, is it fair and accurate description (ii) The stmt of bystander, who happened to be CPA (a) Someone who was there and heard a stmt (b) Bystander himself should be able to auth (c) If he wrote something go back to HW authentication discussed earlier (d) Content – may have to auth that he remembered saying (e) After auth may have a H issue – or start with H to see if it would even be admissible!! (iii) Report of emergency room physician after treating Dirk (a) Person who wrote the report – business record? (b) If the custodian has sufficient familiarity with report he should be albe to authenticate it – need someone with FAMILIARITY to be able to authenticate it (c) BUS REC – can occur by certification – under 803-6 (iv) Police officer’s accident report (a) Public record – but prob not under seal – could be cert but prob not (b) The cop who took report could authenticate it (c) Public rec can oft be self authenticating (so don’t have to call cust of record) then can do it that way (v) A can of Budweiser recovered from backseat of Dirk’s car (a) Self auth as to that its BUD (b) Have to tie it to the car – need the officer who recovered it to testi that he found it there!! 3. 13-3: Ad firm suing bakery for breach of k – Rs associate agreed on Rs behalf and Ss associate SIGNED (i) Need to authenticate the K!! as to the signatories of the K (ii) Paper is self auth, ad is either in there or not!! 4. 13-4: (i) What if heard part of convo but not whole thing (ii) Easy with audio who wsa IN the convo, listened to tape and can say accurealy records everything (iii) SOMETIMES – have tape recording being made and out of the room will be MONITORING

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(iv) Recorder capable of recording, operator knew how to operate equip, chain of custody process to show there hadn’t been material alterations or deletions to the tape, etc. (v) Material deletions or alterations to the tape – (a) Chain of custody – I recorded it and had in my possession whole time, didn’t touch it (1) If several ppl need to call each one 5. 13-5: The piece of paper (i) Have to prove that prom notes made in the Ds writing?? (ii) Commercial paper that is self auth?? (iii) Few ways (a) Notorized (b) Selth auth commercial paper (c) Handwriting comparison (iv) If prom note is bus record, still need doc custodian to lay foundation 6. 13-6:Ts death, letter from T as will, devise R on Jan 4 2001, entire antique car collection blah blah (i) Holographic will? (ii) HW, then familiarity shite – prob better get someone other than bro since hes got an interest in it 7. 13-7: girl injured when display fell on her in mall (i) Photo of where display was (a) Problem? (1) Material change to area? Relevancy issue here, since not taken on day of actual accident itself – 403 issue that its MISLEADING!! (2) Someone to testi that not just accurate photo of area where display and they familiar with area and its substaintially same as day accident occurred!! (3) When at time of accident don’t have tha tproblem

DEMONSTARTIVE EVID 1. Foundation – testi of W that whatever it is is fair and accyrate depeiction of what its depicting! Real lEvid … BLAHB ALH BLAH

2. BEST EVIDENCE RULE a. Misnomer- nothing requires you to offer best EVID that exists – like crummy W over BEST Ws b. Requirement known as this is refered to as ORIGINAL DOC rule c. CALI – 2ndary evid rule – focus on limitation no requirement
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d. The RULE under CL required proof of doc by the submission of the ORIGINAL document i. Required ORIGINAL not DUPLICATE bc before duplicates were made by hand e. NOW i. One photo negative can make TON of shite ii. Rule to keep out TESTIMONIAL E of writing or photograph etc. iii. Best evid of CONTENT of issue disputed is the ORIGNIAL Evidence!! f. 1002 – to prove content of writing or photo the ORIGINAL writing or photo is required i. EX – K dispute – to prove terms have to admit the K!! 1. To prove what depicted in pic, need to offer it not have someone say yeah I saw it and it was him 2. TO prove what recording sounded like can describe it need to bring it!! ii. This is the BASIC rule – orig to prove content of writing, rec or photo 1. EXCEPTIONS  1004 a. A DUPLICATE (1001-4) can be offered in lieu of original i. Types of Duplicates 1. Carbon copy 2. Same matrix 3. Electronic re recording 4. Chemical reproduction 5. Other shite that accurately reproduces the original ii. If GENUINE quedtion as to what is the original – like 2 versions of K and quertion of which one actually in effect, THEN you cant offer duplicate, need the ORIGINAL iii. If ADMISSION of DUPLICATE would be UNFAIR under the CIRCUM – like its somehow incomplete bc orig had handwritten notes after duplicate made, etc. b. If orig lost or destroyed through NO FAULT of the offering party – can show it was lost or destroyed, and then can use testi evid and production of original is EXCUSED i. If you can show that the original K is lost or destroyed production of it is excused, that means you can offer ANY 2ndary evid as to what the terms of the K were – EVEN if you have a PERFECTLY good duplicate!!!! c. If orig cant be obtained through judicial process – like they are in Bora Bora – production is EXCUSED d. If the orig is in the hands of person against whom its being offered do NOT need to offer the original!! e. Where the writing is NOT closely related to a controlled issue – collateral issue rule
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i. If not particularly important for blah blah then don’t go to trouble just tell us quickly what its about 2. 1005 – don’t need to bring in original birth cert, blah blah 3. 1006 – where you have VOLUMINOUS records, white collar crim case with thousands of financial docs a. Rules permit you to create summary based on the docs and you can give that in lieu or original but originals have to be avail for copy and inspection by the opposing side and if there is general question about the accuracy of summarites jury has to be able to see as well 4. Opposing partys tetsti as to the content – if they have acknoldeged it in writine, production of original is EXCUSED also a. Limited to where testi, or where writing acknolwdgind terms of agreement – essentially your OPPONENTS words admitting what you want to prove you do NOT have to offer the DOC!! iii. CALI – replaced the trad best evid rule – they have 2ndary evid rule – not testing us on the differences! iv. TRICK – 1. Videotaping accident – someone asks a question and says blue one on the tape – its not valid to say tape is best evid – doesn’t matter that tape records stmt 2. if question were – did you have opp to review tape you took of accident and what does the tape show? NOW objection to BER is COO bc asking to say contents of recording!! 3. PROBLEMS – 369 a. 13-8: i. Licensed blah blah – should present license? He would know whether he has a license, its not WHAT does the license say? ii. Who did work? JRW – objection, JRW is best to testi about this – not even CLOSE, stupid objection, doesn’t matter if would be better W, that’s not what its there for iii. Your role? Kept records of who did what – he has to bring records in and authenticate them – no bc not talking about what was contained in them, its just what he does iv. b. 13-9: i. Was number of bars in K 3800 or 38000 – duplicate was being offered – as longa s there is no question as to authenticity of the ORIGINAL – only 1 K – and as long as nothing that would make it unfair then its admiss in lieu of the original!1 c. 13-10: i. BLAH BLAH destroyed, only managed to maintain copy – original destroyed though not fault of her own – can she testi about the contents? Yes
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d.

e.

f.

g.

h.

i. j.

k. l.

she can testi too – all 2ndary evid is admiss once show original is lost/destroyed 13-11: P sued D for failing to make 5k payment on new car…at trial D offer duplicate of payment receipt i. Doesn’t violate unless there is question on authenticity or its not fair ii. Needs to offer receipt and duplicate is admissible 13-12: Overpayment to J alleged…J claim o OP i. Testi about payment w/o receipt – testi about it, what owed and what paid…if testi based on personal knowledge – doestn matter that receipt says same…if said, I forgot to bringreciept but here is what it said 13-13: to prove famous person present on boat, p offers duplicate of photo of person on the boat i. Yes a duplicate of photo would be zerox copy bc off of negative is ORIGINAL!! 13-14: Magoo charged with crime, after orally confessing wto cops the D signs a verbatim written confession, they forget to bring it, can cop who heard it testi to it? i. Testi to HEARING it is ok but testi to what written say NOT ok ii. Can testi based on what he heard bc he has PERSONAL knowledge iii. If asked, what were contents of confession signed? Then that would be content and best evid rule apply 13-15: Dats da guy – H charged with bank robbery and B teller robbed testi for P and shown photo of it and asked to verify ppl and locations depicted – he says shows robber carry gun in belt, and personally doesn’t remember the gun i. The photo is still the original photo and hes testi to it ii. He cant testi about the CONTENTS of the photo, the exhibit speaks for itself ISSUE as to if writing or photo existed or another is the original or if other evid or something reflects it then the trier of fact gets the issue 13-16: i. If B testi about contents of tape…if that’s whats at issue is content that is CLEAR violation ii. If had copy of tape – yes can use it if no dispute to authenticity and its not unfair iii. Pres overheard saying our e’ee said in that tape that B is snake, does B still have to offer original of tape? Stmt does NOT excuse admission of orig – if in writing or made in depo it WOULD excuse the orgininal iv. If B accidentally destroyed tape what can he offer at trial? If its through NO FUALT – accident is notenough – as long as not intentionally or recklessly he can actually testi as to the contesnts of the tape 13-17: compensation…how much did u earn in 1992 i. Can testi to what he made, its personal knowledge…his W2 is also evid to it CASEi i. Laundry mark on shirt – DUF – its in case in stolen vehicle, D is charged with transporiting shite blah blah – DUFFY is the D!!
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ii. Prosec calls case agent and asks to testi as to what found in car and he says shirt with mark with DUF – does this violate best evid rule? 1. 9th cir said is NOT writing – bc it’s a SHIRT 2. COLLATERAL?? 3. in the DUFFY situation, where the CT would look at it as chattel or writing, if the Writing is NOT particularly COMPLEX, and really is more in the character of a MARK, then the cts may be more likely to treat it as a chattel!! m. 13-18: is worksheet the best evid of his testi? i. Not tsti to prove contents of worksheet, does not apply!! ii. If he wrote down time and date of mailing in rec and didn’t bring rec to ct, is that violation? 1. not if hes testi out of personal knowledge – 2. 4/10/06 Lay Opinion and Expert Opinion Testimony  I. Lay Opinion A. ON THE BOARD 1. Rationally based on perception 2. Helpful 3. NOT scientific, technical or based on specialized knowledge B. Rule 1. CL – Lay OPINION shite was NOT permitted (i) FACT – something SAW, HEARD, SMELL, TASTED, or DONE!! (a) That was all that lay ppl could testi to!! (b) Line btwn fact and opinion is EASILY blurred – Its warm in here 2. FRE – (i) 701 – If a W is NOT testi as expert, testi in form of opinion are LIMITED (a) Rationally based on perception of W (b) Helpful to clear understanding of Ws testi or determination of fact in issue (1) Certain circum where easier to state opinion – Like ―he appeared frightened‖ (c) NOT scientific, technical, or based on specialized knowledge (1) This is where the EXPERT comes in (ii) Absolute prohibition is REMOVED but there ARE certain limitations 3. CALI – virtually IDENTICAL (i) Same as to the first 2 parts, there is NO specific limitation as per the scientific, tech shite but cts have found for this!! 4. Some EVID that is ROUTINELY accepted by the ct
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(i) Estimate of Speed (mostly of vehicles but walking too) (ii) Estimates of Distance (iii) Temperature (iv) Physical characteristics of people (a) Tall short heavy frail (v) Estimate of person’s age (vi) ID of a person (vii) Value of one’s property or services (viii) Common odors – like rotten eggs (ix) Emotional or mental state of people who are FAMILIAR to the W (x) Opinion regarding COMMON behavior – like intoxication C. Problems 1. 9-1: Slippery Tiles – ―In my opinion, those tiles were very slippery‖ (i) Better to say that they were wet, but is it rationally based on perception? (a) Here might be MORE helpful to break it down for the jury!! (b) Going to issue very close to ULTIMATE issue in the case (c) Under what conditions are they slilppery? Does he have sufficient personal experience with tiles to know (d) Need to lay MORE of a foundation – that W able to form opinion rationally based on his perceptions (ii) Not enough stated to cause ct to say ok we admit that!! (iii) If didn’t mention in my opinion, doesn’t make a difference – not question of form over substance!! 2. 9-2 – No Horn (i) If W testi re what would have happened if…. (a) OBJECT – this is SPECULATION (b) Ws cannot testi to something that is speculative!! 3. 9-3: Zoomin (i) OK to estimate speed (ii) Most prob cant estimate how quick its going…hard to testi airspeed when on ground – w9ould need evid from cockpit or EXPERT testi (iii) Smell of burning high grade oil? Not a COMMON smell – specialized knowledge (iv) This is fine (v) Smell within COMMON shite (vi) Height and weight are COMMONLY accepted (vii) Disoriented – something most ppl have seen, probably OK, looked like hed been w/o sleep for a while – completely speculative (viii) NOT admiss –if some sort of expert in recognizing large egos then should be qualified first 4. 9-4: The Wink (i) Probably in MOST cts would come in as proper lay opinion testi – but you MAY want to follow it up by saying what do you mean he winked?
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(ii) What did you take wink to mean?? SPECULATIVE and perfect ground for objection!! (iii) Ran by, he was wearing Kouros cologne – not COMMON knowledge – do you need an EXPERT?? No but you need to lay foundation…are you familiar with smell of kouros cologne and can you distinguish from other shite 5. 9-5 (i) Had been on the floor for hours (a) More helpful for jury knowing what the perceptions are (b) The closer lay opinion comes to discussing the main issue then the more likely they want JURY to decide this (ii) Fell like sack of bricks (a) That’s ok 6. 9-6: Thelma and Louise (i) This kind of opinion test is permitted in MANY cts (ii) Why allow lay opinion that someone appeared sane but expert CANNOT testi to it!! (a) NORMAL might have been better than SANE (b) If someone is VERY familiar with another person they can tell if they are acting ODD (c) Where sufficient familiarity, then allow this – jury isn’t going to overvalue this but if it were expert they would take it for what was said!! (iii) Can someone who NEVER met T before testi as to sanity? (a) Not enough familiarity (b) Describe what saw instead 7. 9-7: I know it when I see it (i) Yeah that’s enough of basis to recognize it!! (ii) Jury can decide to disregard if they don’t think its enough II. Expert Testimony A. ON THE BOARD 1. Helpful 2. Sufficient basis 3. Product of reliable methods 4. Relevant B. Rule 1. Ex can testi and give opinion w/o and personal knowledge of anything in case – can give opinion based on HYPO and can embrace the ULTIMATE issue in the case 2. they can base opinion on Evid that is inadmissible, that a jury cant consider (i) common to have expert opinion based on H evid 3. 702 – BASIC RULE – (i) Expert is someone who may have sci, tech or other specialized knowledge…may help determine…
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(ii) Look to knowledge, skill, epxeirience, training or education (iii) Expert just needs to have specialized knowledge and their opinion helpful to the jury (iv) Cant be asked beyond what they are qual as expert to testi about (v) Testi MUST be helpful to the JURY (vi) Based on suff facts or data – suff BASIS (vii) Reliable – product of reliable principles or methods (viii) Must be rel to issue in dispute (ix) Judge = gatekeeping function (a) Step 1 – qualify Ex as an Ex (1) (b) Step 2 – 4. 703 (i) Expert opinion can be based on (a) Shite presented at trial (b) Facts or date learned PRIOR to trial (c) Hypothetical (ii) Amendment – almost a Reverse 403 – if the experts opinion Is based on inadmiss shite, jury can only learn of the basis if the prob value subst outweighs danger that they misuse it 5. 704 (i) Ex are uniquelt qual to something something (ii) Jurors can reject Ex opinion (iii) No longer limit that expert cannot testi as to ultimate issue of fact – (a) EXCEPTION – Ex W testi as to mental state of crim D may NOT give OP as to if the D had the mental stage required that constitutes an element of the shite (1) If element is willfull, the Ex cant testi that was or was not willful (b) Cannot testi that legally insane!! (iv) CALI (a) Can have expert op on tesit of ultimate issue (1) That INCLUDES expert opinion as to SANITY – can be testi to by W who is intimate acquaintance but also Ws quail under 800 and 801 and those are Ex Ws!! 6. 705 – you don’t have to lead expert up to opinion re all the shite performed (i) After want to go to basis so J can decide if opinioni was reliabily reached (ii) CIVIL cases – becomes important 7. 706 – ct has power to bring in own expert (i) Usually in competency hearings (ii) C. Problems 1. 9-8: Chiropractic shite (i) Worked as chiro, 7 yrs, 800 patienst – REL
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(ii) Article – Neck Pain and What to Do – further shows hes got knowledge…maybe written articles accepted by other experts – REL (iii) Testi as expert before – 17 other times – REL (a) May bear on qual (b) Just that usually PLAINTIFF maybe shows bias? (iv) Honors from Chriopractic shite and continuing education – REL!! (v) Honorary doctoral degree in biology after being fundraising chair – NOT REL!! (vi) Has worked on celebs – NOT REL!! 2. 9-9: Icant get a reaction – song (i) He can be expert w/o being able to read a NOTE of music (ii) If VERY familiar in music in that field that is enough to be an expert

4/12/06 I. Expert Witnesses A. ON THE BOARD 1. Qualifications of Experts 2. Reliability of Pinciples/Methodology 3. Whether ―expert‖ is helpful B. READ AC Notes to 702!! Good job explaining and limiting the changes to the FRE as a result of the Daubert case!! C. Daubert Case and Effect of Amendments to 702 on issue of permitting Novel Science 1. Prior to D was, the Frye Std was used (i) FRYE – precursor to lie detector, before to admit sci shite…were the principles GENERALLY accepted by the scientific community D. CALI – frye still used in cali 1. Kelly case in cali adopted Frye as the Cali test for scientifically blah blah 2. Simpson – DNA E achieved gen acceptance in scientific community 3. emerging areas of sci are excluded in expert evid blah blah E. DAUBERT 1. liberalizes shite 2. particularly with novel shite 3. Pertinent evidence based on scientifically valid principles is enough to satisfy demands of 702…no longer use the general acceptance shite from Frye F. 701 1. Evid has to be HELPFUL to the trier of fact 2. W qual as expert by knowledge, skill, experience, traininr or education can testi in form of opinion – GATEKEEPING FUNCTION OF JUDGE – also has to qual him as an expert in particular field, talked about it mon 3. if (from daubert) (i) testi based on suff facts or data (ii) testi is product of reliable principles or methods
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(iii) W has applied the principles and methods reliably to the facts of the case 4. GATEKEEPING – must determine there is Realible bais for expert opinion!!\ G. KUMO TIRE – engineer talking about tire tolerance, no scientific shte – limitation post daubert applies out of sci to ANY kind of expert!! 1. need to apply reliable principles to reach blah blah H. GATE KEEP 1. does expert have suff qualifications to be considered an expert in the field 2. did expert use reliable principles/methodology in formulating opinions? I. rel 1. 2. peer review 3. ct will consider if the theory or technique has gotten general acceptance in community II. PROBLEMS A. 9-15: Major Photo – 1. Expert helpful to jury? 2. Facts are NOT clear, sort of like novel science problem 3. not sure what being used for to have clear understanding if expert would be helpful 4. if lighting suff to help eyewitness ID the van, may be issue bc expert can offer some information that is helpful 5. FIRST, need to show he is LIGHTING EXPERT – understand it and how it affect ability to perceive something 6. Question to perceptions of eye witness and accuracy, then probably CAN be testified to 7. How to testi (i) Have him discuss lighting and effect on perception (ii) Get expert to state opitnion as to if eyewitness who saw this could make the kind of ID made B. 9-16: Operation -- required to operate or viable alternative treatment? 1. Dr says, necessary to save victim’s life 2. concerns the ULTIMATE issue at trial but that doesn’t matter 3. is internist qualified to enter opinion on issue of emergency room surgery!! (i) How qual, what are her experiences, slightly out of her area of practical expertise C. 9-17: Fred Fraud Fred 1. W testi that in his opinion actions by Ds were a clear scheme to defraud others (i) Do they need a securities analyst to figure this out? He is more of a layperson than an expert (ii) An analyst is not a fraud expert – his area of expertise is not helpful to the jury D. 9-18: Crazy Eddie 1. Raise insanity defense and Dr says he IS insane
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2. 704b – prohibits expert op testi about whether D had requisite mental state constituting defense!! (i) Can describe his SYMPTOMS, but cant conclude hes INSANE!! (ii) CALI – 870 – there IS NO prohibition, can testi that D was insane!! E. 9-19: Baseball 1. are ppl neg in GF? Most jurors should be able to determine from hearing how the negs proceeded F. 9-20: This Battery wont Quit 1. Exec VP of company, access to books, testi as to what the losses were, is that EXPERT OPINION? NO!! 2. not testi as an expert so don’t qualify her as expert!! G. 9-21: The Best Defense 1. can talk about what constitute search, what can be consent, etc 2. to have atty draw the inference that judge be asking jury to draw seems to be overstepping!! H. 9-22: Harassment 1. propensity thing? If matches suspect then blah blah… 2. are any of the 3 on borad that cause concern 3. is the shite the product based on reliable principles/methodology? I. 9-23: Prof! 1. not disqual that expert also happens to be a party 2. insane to think that jury is going to consider that type of expert testi to be NEUTRAL – better to get someone else as matter of trial strategy J. 9-24: Don’t Mess 1. if hes a lifer and lots of gang activity then hes prob got experience that would be helpful K. 9-25: Base Thief 1. insanity, defense of insanity, acting maliciousl (i) CALI – still don’t let psychiatrist say if acting willfully as opposed to recklessly (ii) Prohibited both in cali and federally 2. didn’t know right from wrong – could testi concerning symptoms and also give opinion of can distinguish right from wrong 3. psychologist? Doestn make difference, just paid less as a witness 4. social worker? Assuming can qual no reason not to!! L. 9-26: The Law of the Dominica 1. can testi to rel legal principles that would control issues in dispute M. 9-27: Wehre there is Smoke 1. present sense impression by the fire fighter – can prob testi about that…likely admiss H 2. can be inadmiss and still form basis for the opinion N. 9-28: Dr. Heersae 1. not the case can offer opinion case and if proponent don’t have to offer basis but would be foolish not to give it
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2. experts CAN speculate – can answer a hypo!! 3. ok to rely on inadmiss H and inadmiss other types of evid

PRIVILEGES I. Priviledge A. How to avoid having REL, highly probative E kept out of trial!! B. RATIONALE 1. only in sitch where we feel there is another policy or relati that is MORE deserving of protection than the justice system is deserving of the E C. FRE 501 – non committal approach to Priviledge – the ONLY fed rule to deal with privileges 1. Goverened by CL in light of reason and experience – Fed Cts when its not diversity case 2. In civil actions and proceedings as to which state law supplies blah blah – priv determined in accordance with STATE law D. CALI – A LOT of privileges that are recognized – some qualified some absolute E. Federally – what is recognized 1. Atty-Client 2. Marital Testimonial Privilege – aka Adverse Testi priv – CRIMINAL ONLY 3. Spousal Confidential Communications privilege – CRIMINALLY 4. Psychotherapiest-Patient priv – 9th cir 5. QUALIFIED – not absolute – Ct weigh and balance to see if its necessary to override (i) Executive (ii) Nat’l Security (iii) Atty work product F. CALI – priv are ENTIRELY codified 1. Priv of accused not to be called as a W – 930 2. Priv against self incrim – 940 3. Atty Client – 950 4. Priv not to testi against spouse or to be called by a party adverse to the spouse – 970 (i) Same as marital testimonial privilege – but applies in ALL proceedings 5. Priv for confidential marital communications – 980 6. Physician Patient privilvege – not commonly recognized – 990 (i) But its oft waived by the filing of the action – like if you sue your dr for malpractice 7. Psychotherapist-Patient – 1010 8. Clergymen Penatent Priv – rec in some fed cir as well 9. Sexual assault victim-counselor priv – 1035 – not common 10.Domestic viol victim counselor priv – 1037 – not common 11.priv not to disclose ID of informers or official info – 1040 – not common
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12.priv for secret ballot votes – 1050 13.trade secrests privileges – 1060 – common 14.qualified priv, newsmans priv refusal to disclose news sources – 1070 15.cali version of 501, only priv rec by code can be used in cali – 901 G. 3 ways a priv can ACTUALLY exist/work 1. 5th amend and cali are the only example – priv to not even be CALLED as a W (i) If you are a D, protected from even being called on by prosecutor 2. Priv to not have to testi against particular person – can still be called as W but don’t have to testi adversely to spouse or whatever 3. By protecting certain MATTERS from being introduced (i) Usually talking about confidential communications H. MOST COMMON 1. Apply to conf communications 2. 3 requirements (i) Communication has to be btwn indiv in a legally protected relati (ii) Has to be a communication made btwn the holder of the priv and the other person in the relati (iii) Communication has to be in a CONFIDENTIAL setting I. WAIVER 1. Expressly (i) Where person says im going to waive it 2. Impliedly (i) By answering a question that would be COVERED!! J. If don’t assert, priv is WAIVED at least to the scope of subject matter testified to!! 1. Asserting insanity defense, waive the psychotherapist patient priv 2. if sue atty for malpractice the atty client priv is GONE II. SPOUSAL PRIVILEGES!! A. Courts really view Spousal priv as priv attaching to LEGALLY recognized marriages B. Spousal Testimonial 1. Requirements (i) Precludes testimony (crim fed) (ii) Holder = Testifying spouse (a) Change in CL – Tramble – if H charged with importing coke, the holder of priv is the WIFE and she can decide!! (b) Reason is PROTECTION of marriage (iii) Ends when marriage ends (a) Can testi re ALL that happened during marriage (iv) some excetpoins (a) Joint Participants Excetpoin – when they are joint partic not found to hold the priv (b) If abuse of one or the other OR batter of child of either of them, do NOT recognize the rule, need for testi is greater than need for rule (c) Future crime/fraud 2. precludes ALL testimony!!
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C. Spousal Confidential Communication 1. Aspects (i) Precludes testimony re communication made during marriage (ii) Holder = party to communication (iii) Survives marriage (a) Anything made during marriage continues to be privileged evern AFTER tha marriage (iv) Has exceptions (a) Joint Partic Exception (b) Domestic violence exception – each other or kid (c) Future crime/fraud 2. Rationale (i) Protect communications during marriage (ii) Foster open communications during marriage III. PROBLEMS A. 12-1 – Bonnie and Clyde 1. made stmt before they were married – if she CHOOSES to testi, he CAN’T stop her (i) she can refuse to testi at all, but if she chooses to testi she can be asked re stmts before marriage 2. outfit on day of one of robberies – can C prevent her from testi if the confi comm. Applies (i) not communication, its observations (ii) if testimonial – depends on what ths wants more, its up to her 3. sec writes letter (i) not conf, not comm. Btwn the hub and wife – he involved the sec which destroyed the confidentiality 4. B dies – shes unavail as to W (i) How would this become issue? Survives her death!! 5. based on bruises blah blah (i) domestic violence exception (ii) what if bonnie tries to assert testimonial priv – the exception applies!! 6. Cs estate sued by 3P that he robbed…blah blah…if he told B where he buried it (i) If its spousal confidential comm. It survives HIS death – if she is a JOINT participant, then the privilege wouldn’t apply

4/17/06 I. REVIEW II. ―Abused‖ premiere – tomorrow, 6-8 SR1 III. ATTY CLIENT A. Best developed privilege 1. matter of FED CL!!
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IV.

(i) Applies to (1) CONFIDENTIAL communications (1) btw atty and client – if the comm. Are (3) for the purpose of securing legal svcs (a) CLIENT holds the privilege!!! 2. CLIENT – seeking legal svcs – cant just be someone talking to lawyer (i) Donesnt need to have paid or agreed to paid!! (ii) So long as made to seek legal svcs 3. ATTY – can be someone that a client Rxly believes is licensed to practice law (i) Only applies when behaving as atty – cant have him do your tax return and keep it all secret -- preparing tax return, not acting as atty (ii) Offhand remark to friend at party who is atty – migh be trying to get FREE advice (a) Also at party is NOT confidential 4. LAST LINK exception – where law enf undertook investigation, they know someone did something and how and blah blah and they know the LAWYER they just don’t know client and that would be the LAST LINK, in that sitch, the clients ID is PRIVILEGED (i) But usually client is NOT intended to be confidential 5. Has to be intent that communication be kept confidential (i) If disclosure is made to ppl out of this confidential group (can include paralegal, investigator, etc…ppl essential to rendering the legal svcs) B. WAIVER – 1. the holder of privilege can WAIVE it – (i) Expressly (ii) Impliedly (a) By disclosing info in a document that is privileged (1) Can be held to have waived the priv to the scope of EVERTHING on the subject matter disclosed C. RATIONALE – w/o it ppl might be reluctatnt to seek legal advice 1. if ppl were unrepresented or atty could disclose conf communications 2. priv is there to facilitate workings with legal assistance D. EXCEPTIONS to priv 1. if the atty is consulted about committing a future crime or future fraud, that communication is NOT privileged 2. talks about PAST fraud, and then says I am going to lie about it!! PROBLEM A. 12-2: A stops to talk to M outside of super market – says lawyer, Rx fees, first consultation free 1. If A charged with crime same sitch as what she discussed with M (i) When she spoke with him she was seeking legal advice…just bc she decided NOT to hire him that doesn’t affect it and its ok…might be issue with if it’s a confidential setting (ii) M passed bar but never completed application and was not blah blah (a) if she Rxly believed he was lawyer its cool (iii) Seeking investment advice
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(a) That’s nto legal svc (iv) Someone else was paying (a) Atty client relati still btwn person seeking advice and lawyer (b) Doesn’t matter who paying (v) Immediate friction, tells him about crime, M would love nothing better than to tell all (a) Past crime, hadn’t been charged, so its coo, shes got the privilege and he CANNOT disclose it B. 12-3: No name 1. asked about knife allegedly given to her by client (i) if you take custody of it, examine, hold for Rx time, but after that its your DUTY to turn it over to the AUTHORITIES – cannot keep rel material evid from the popo (ii) want to go turn it over w/o disclosing who gave it to you…if subpoena about shite provided by particular person, that is admitting who the source of the evid is!! (iii) Ppl v. Merideth – Involved a murder, client told att’y he had incinerated wallets related to the murder victim and gave att’y info as to where the wallet can be found and investigator found one wallet and brought to atty – by moving the wallet, the investigator destroyed EVID, no atty has to turn over wallet and disclose where its from (a) If the investigator had just reported back about it it would have been fine 2. asked about name of person paying atty fees and the amount of them – she says is privileged (i) if its client paying fee, unless it provides missing link, the name of the client is NOT privileged – one court that has held the name of 3P paying fees is NEVER privileged 3. prosec issues subpoena for Ps notes in case (i) atty work product – Hickman v. Taylor – don’t have to disclose unless compelling need for the info 4. Assuming name can be disclose, can subpoena for HW sample? (i) YES – not violate priv against self incrim 5. Can be asked to provide hair sample (i) YES – doesn’t violate priv against self incrim 6. Asks paula how best to lie (i) That is NOT privileged!! C. 12-4 – the client – N informs C that he extorted money 1. does atty client apply to conversation btnw C and -- specific information about acts are provided (i) N – assuming N is the company, then its coo (ii) If crowded party – then doesn’t seem like confidential info (iii) Can C waive the atty client priv w/o N? NO, its HIS privilege
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(iv) If he asks, help me get out of this very last extortion im going to do – try to convince not to do it and say im not going to rep you anymore (a) If compeletely done, maybe its coo, if trying to cover it up, etc V. CORP CLIENT RULE – UPJON RULE A. Old Rule  before ppl in corp could claim it, had to be member of CONTROL group, someone who influence the direction of the company B. New Rule  more flexible test – recognize that even the JANITOR can get the company in hot water – anyone who can involve the corp in legal diff means can talk to atty privileged 1. case by case – looks to the specificts 2. lowest level e’ee can now give a confidential communication to the corporate atty whether its in-house counsel or outside counsel C. PROBLEM 12-5: Corp consults …technichian blah blah – he can assert it so long as communication was to render legal svcs for the corporation D. Problem 12-6 – possibly – case : WARD – allows SHs to get his information – they are the Os of the corp, the officers are comm. With lawyers on behalf of the owners and they are entitled to know this VI. Work Product Privilege A. Any materials that reflect the mental thoughts, processes, strategy of atty are covered – qualified – doesn’t necessarily apply and can be overridden on a sufficient showing of necessity B. 12-7  1. comm. Btwn J and E are covered by atty client 2. notes are clearly work product 3. meeting btwn J and union reps  meeting not for rendition of legal sbcs VII. PSYCHOTHERAPIST/PATIENT A. Fed common law extends to comm. With psychologists, blah blah and blah social workers B. Must be made for purpose of getting diagnosis or treatment C. Talking is key to give diagnosis – bc of that these comm. Are viewed as privileged – foster communication to facilitate quick diagnosis and effective treatment D. Future fraud/crime exception usually applies 1. if patient indicates desire to harm or kill someone, they have to go forward and tell the authorities E. 12-8 – a charged with murder, blah blah – if rasises insanity defense can they get therapist to testi at trial? If meets insanity is now at issue in case – he has WAIVED his privilege F. 12-9 – rapes…prior to when charges were filed 1. privileged 2. if the secretary was privy – if she is note taker – than its ok, if she is necessary to rendition of svcs – that is the test – many mechanical recording devices available G. 12-10 –
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1. podiatrist, and patient claims he thought he was psychotherapist – maybe talking about something they were interested in – just bc related to phychotheapy doesn’t mean hes getting treated for disorder dealing with that VIII. Physician Patient A. NOT federally recognized B. Exists in MAJ of states C. PRETTY LIMITED D. EXCEPTIONS apply to communications made for purpose of diagnosing and blah the injury that is subject of the litigation E. 12-11: guy work up family physician and claimed he was shot while hunting, taken to his adjoining office and after treatment hurried away but was weak – state law supplies rule of decision where blah blah relevant – treatment and stmts made? 1. another exception that exists in most – treatment of gunshot wounds – bc they are so commonly the result of CRIM activity, the priv USUALLY doesn’t apply 2. another one – dangerous and communicable diseases – if get treatment for that the privilege doesn’t apply there either 3. what if his bro helped carry him and was in drs office – if he was NECESSARY for treatment then doesn’t destroy the privilege but if just brought him in then yes can be called to testi 4/19/06 I. Judicial Notice A. ON THE BOARD 1. Generally Known 2. Easily determined from sources that can’t be questioned B. Rule 201 – relevantly clear and easy to understand 1. Only applies to ADJUDICATIVE facts (have direct bearing on E before ct) 2. Doesn’t apply to  Legislative Facts – beliefs that MOST ppl hold, form basis for legislative decisions for enactment of laws and for something else (i) Spousal Testimonial priv based on legislative fact – if force one spouse to testi in ct in front of other, the marriage will be imperiled 3. If give adjudicative fact – must blah blah estab 4. Doesn’t permit any party to offer contrary evidence!! 5. 6th am – jury decide not the judge – cant say you HAVE to accept this fact – cant instruct jury that they MUST take the judicially noticed fact as estab – give option to disregard and the D CAN offer counter evidence!! 6. Judicially noticed fact (i) Not subject to Rx dispute – bc its (kind of facts) (a) Generally known in territorial Jx of the TC (b) OR fact capable of accurate and ready determination by resorting to sources whose accuracy cannot be Rxly questioned (ii) CALI – 451 – very similar – facts of gen knowledge so univ known cannot Rxly be subject of dispute!!
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7. CT must hear arg and as long as atty can show it meets one of the kind of facts requirements, the ct MUST take judicial notice!! 8. DIFF btwn CIV and CRIM (i) 201 says it can be taken at ANY TIME – including during trial (a) In civil means can be taken for the first time on APPEAL!! (1) If clear verdict rendered where jury MUST HAVE assumed fact, take judicial notice even tho no evid offered…can take judicial notice first time on appeal in civil (b) In CRIM – C. PROBLEMS 1. 14-2: (i) asdfasdf 2. 14-3: (i) Reason to have kids excluded but it’s a LEGISLATIVE fact 3. 14-4: (i) This isn’t proper (ii) What if asked to take notice sun has set by 930 at night… (iii) Can offer judicial evid to estab that on particular date it sets on particular time – but, there might be other resons that w/o sun it may have been light!! 4. 14-5: (i) Go to the SC reporter (ii) Usually take judicial notice of sister states and state (a) CALI – ct has to take judicial notice of authority of the US 5. 14-6: (i) Yes – even tho when would this be important trial? (ii) Questionable (iii) This is widely recorder and reported 6. 14-7: (i) Sci facts are NOT capable of meaningful dispute – if higher altitude, water boils at lower point (ii) May even be generally known – proper for judicial notice 7. 14-8: (i) No…cant just say if judge knows you can take notice (ii) Play both for the jury to determine this 8. 14-9: (i) PROBLEM – some things are easily determined and OTHERS are not (ii) Maritime, Municipal and Foreign law in general have to be PLEADED and proved!! (a) Patent law is another example (b) Need to call an expert in the field who can prove the law!! 9. 14-10: (i) Need to bring the dictionary in
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(ii) Death cert filed at recorders office – YES, this is in the territorial Jx of ct, if not generally known, its capable of ready determination (iii) Hokey – very rough, something a jury can consider bc it can bear on the ultimate issue in the case (a) Ppl have to generally agree on it (b) Very rough may be too close to decide liability but the fact that contact sport can be judicially noticed (iv) Yes – readily available, can go to historical sources and determine that (v) USUALLY – is this something the jury should hear evid on?? Is it written down somewhere?? Does EVERYONE know it?? (a) Issue – can it be disputed?? Call someone from post office …otherwise telling jury you HAVE to accept this!! (vi) Yes – not capable of being disputed – age issue to laying foundation (vii) NO – usually you cant – judicial notice is local law but cts recognize that municipal codes are NOT well maintained – goes with maritime law question, need to be pleaded and proved (viii) Asbestosis – a lot of ppl accept that its carcinogen, cant say its beyond dispute – there will be experts on both sides 10.14-11: (i) Every time u see usually there may be grounds for argument (a) If you have sources that permit you to lay the foundation that is good, and see if opposing party has evid to dispute that fact (ii) Redistricting voting districts, judicial notice of location of state capital – YES, generally known in territorial Jx (iii) If redistricting appealed, can they take notice as to location of certain towns?? Only in civil case would this be ok!! Cant take judicial notice for first time in crim action (iv) Can be disputed – something parties would like to have opportunity to offer evidence on this!! 11.14-12: (i) 12.14-13: (i) II. Presumptions that CAN control the LITIGATION A. On the Board 1. Basic Types (i) Conclusive (a) Principle of law (1) Ex -- A coal miner with black lung disease is disabled (b) Its controlling (c) You CANT argue it (ii) Permissive (a) Not presumption at all, its an INFERENCE
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(iii)

(iv)

(b) Ex – If you find that the pavement was wet, you may presume that it rained (1) You MAY draw an inference – its permissive, can presume it but do NOT have to (c) Not too much affect on litigation Rebuttable – focus on this one (a) Presumption that arises based on the proof of certain facts (basic facts) (b) BASIC FACTS  PRESUMED FACTS (c) Rebuttable Presumption – If leave chattel with Bailor and its undamaged, if you to to pick it up and its trashed (if can prove basic fact that left undamaged with bailor) you have rebuttable presumption that operates in your favor (any damage that occurred on chattel you left occurred by the Bailee) and its up to other party to REBUT that (1) C left Volvo with Valet, it was perfect and then picked up and HUGE hole in roof, shifts to valet buren of proving that it WASN’T their fault (d) Puts burden of producing evid to person most likely to have it – smoking out the evidence (1) If they CANT rebut, then the presumption controls the issue!! (e) Control outcome of litig where evid otherwise is not avail (f) 301 – a CRIM D NEVER has a BOP or Burden of Production (g) Presumptions shift the burden of PRODUCTION at least to the opponent (h) P has the BOProof/Persuation (Civil: C & C or Preponderance; Crim: Beyond Rx Doubt) and the BOProduction – usually same party has it (1) BOProduction shifts with the whole valet situation (2) BOP depends…talk later (i) CRIM case – (1) joint control presumption -- if drugs found in car presume that joint owned…not rebuttable bc cant shift to D when its criminal to D – Prosec has to prove beyond Rx doubt, if offer evid that found in car, now the D COULD offer counter E OR can do nothing – effect of presumption in CRIM case, judge can only instruct jury that they MAY but need not presume that!! o Its turned into a PERMISSIVE presumption 2 views (a) In civ case the BOP also shifts too!! Has to show his version is true too!!
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(b) OTHER VIEW – bursting bubble – only the Production shifts, Persuation always on the Plaintiff --- if prove in great shape when drop off, and black thing in roof, then D says lightning struck – presumption drops out of case COMPLETELY and now D win unless P can come up with SOME OTHER EVID that D was at fault (1) P bears burden of Persuation and NO LONGER has persumtion to aide in proving the case (c) FED – 310 – (1) In all cicil acations and proceedings, presumption give other party burden of production to rebut presumption but does NOT shift to such party BOP in sense of risk of pursaution (2) BURSTING BUBBLE!! -- FED o Any credible counter evidence will BURST the presumption – need to prove that its true?? o Leaves P holding EMPTY bag!! (d) CALI – 2 separate provisions (1) 604 – describes the kind of presumption that BURSTS!! o What kind of E subject to that? 603  Example – mailed letter presumption – bursint presumption o Don’t burst – under 605  Presumption affecting BOProof is established to implement some PP other than to facilitate determination of particular action  Policy in favor of establishment of parent/child relati  Cali, that doesn’t burst by mere production of E, father wishing to challenge paternitiy, have to show enough so that jury find by preponderance that hubby isn’t the father!! B. Matter of common sense C. PROBLEMS starts on 392 1. 14-12  majr issue in action is if P notified D of his intention to renew by certain date – said he mailed more than week in advance of time limit, D company says didn’t get notice!! (i) D in best position to know it was rec’d – create rebuttable presumption in Ps favor – gives P the presumption that letter was rec’d so long as estab the basic facts – correctly addressed, stamped and placed in mail!! (a) If the have someone to say, I open and log – PRESUMPTION BURST in FED and CALI (b) As long as any evid offerd to contrary the presumption is burst and dropped
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2.

3.

4.

5.

(c) Any CREDIBLE evidence!!! (1) If completely non credible W, then the presumption DOESN’T burst (ii) CALI – CREATED just for purpose of resolving dispute so BURST, the ones that don’t have important social policy behind it too!! 14-13 – RE magnate died, left 2 football teams, blah blah blah, 2 wills, first one to the Salvation Army, 2 nd one to his 11 kids to be devided equally – 2nd one has X through it, Preusmption that will that is made and mutilated is presumed revoked!! (i) What does SA have to do? Need to estab that X through will was a MUTILATION of the will!! (a) X can be that it mutilates, other that its his signature and made it too big (b) If mutilation, goes to the OTHER side (c) If not, the will is valid!! (d) If mutilation – meet BOProduction by showing will was NOT revoked!! SA gets presumption that its revoked and kids have to rebut!! (e) BASIC FACT – will mutilated; PRESUMED FACT – will revoked (ii) What if presumption that shifts the BOPersuation – then the kids have a diff std they have to meet to rebut presumption – if the BOPersuation shifts, the kids have to prove by preponderance that the will was not revoked!! 14-15 – married, presumption that its kid of hubby – rebuttable presumption (i) She would have the BOProduction – has to prove that they were MARRIED when kid was born – easy (a) FED – B has to show any evid that he is not dad – any credible evid that child is not his!! Then BUBBLE BURSTS (b) CALI -- given POLICY effect so shifts the BOPersuation – has to prove by PREPONDERANCE that he isn’t the dad!! (c) FED rule covers diversity cases, defers to the STATES!! 14-16 – regrigerator will, left all money to him (i) Who wins, son or oreo cookie research insts – will lost presumed revoked (a) If NOT in fridge then presume revoked if not there then revives oreo will and they get all the dough (b) What if kid can show E that the fridge will buried in back yard – then might be act to revoke too!! Go back and forth on this one?? 14-17 – Rambo blow up dept store and buildings – chardged with trespass etc (i) He is 6, if rebuttable pres exists the kid under 7 is presumed incapable of commiting felony, what to overcome presumption (a) Can have rebuttable presumption that operates against state, can be FULL rebuttable presumption (b) Cant have full rebutablle prebumpgion against D, its permissive!!
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6.

7.

8.

9.

(c) State has to show – that hes CAPABLE of committing acts!! (1) If can offer any E to show he is capable that rebuts the presumption (ii) What is diff in amt of evid they have to show if shifts burden of persuation to gov’t (a) Need to show beyond rx doubt that incapable of committing crime!! (iii) What must show if considered to be CONCLUSIVE – conclusive presumption cannot be overcome!! (iv) What if permissive presumption -- Jury not requited to infer from his age that incapable of committing crime 14-18 – OK stat provides anyone found in hotel room is constructively found to possess any drugs found in open area of room (i) J in room, charged with unlawful prossession of weed (ii) How should judge instruct jury? (a) PERMISSIVE presumption – can infer but not required to with his presense with weed in open area that he was in possession of it (iii) If says I was stopping by to chat, what effect? (a) Does it BURST like rebuttable?? NO!! if you had rebuttable and D was able to offer contrary evid it would leave case, no rebuttable shite in crim shite…cury CAN but not required to draw! (iv) Is it const? olster case – so long as given permissive effect, treated as inference, then its constitutioinal 14-19 – if blah blah presumed to be sane unless satis blah blah to show INSNAE, if D meet this then goct has to prove sane beyond Rx doubt (i) How much need to offer to overcome presumption of inanity? Presumed sane unless satis BOPresumption – rebuttable presumption, how much evid need to dislodge -- ANY credible evidence!! If offers a scintilla of evid, then presumption of sanity is overcome (ii) What does gov’t have to do?? (a) Have to prove Beyond Rx Doubt that D is SANE!! 14-20 – J left merced – when he returned there was huge crater in trunk and sides bahsed in, aid I dunno looks same as when brought, presumption of goods damaged in baliees possession blah blah blah assume fed rules apply (i) J needs to prove that the car was in good condition when he brought it in!! (ii) If they say, looks same as when brought it, presumption exists and that controls case, J wins!! (iii) What if jury decides that basic facts are NOT proved, who wins? Parking lot!! 14-21 – jenny mail pymt to CC co and they say never got it and sued for damanges including huge late fee – she says properly address, stamp and mailed – pres that its recd if all that done (i) Presumption apply here? Yes, Applies here!!
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(a) Instruct jury, if you find propertly address, stamped and mailed, MUST find it was rec’d!! (ii) Balh blah (a) Preumspoin no longer in effect, D met burden, no counter evid (b) What if no records but failed bc didn’t place stamp? (1) If not stamped, no presumption!1 10.14-22 – S charged with possession of firearm, guest of occupant, firearm in unlocked drawer in nightstand – person found in hotel room with firearm is presumed to blah blah (i) Crim case, should be permissive (a) Jury MAY but not req to find she constructively possess firearm!! 11.14-23  car on steep hill crached into one at bottom, breakes didn’t work, emma hold keys to car – owhip of car presumed from possession of key (i) How she burst bubble – anything to show its not her car!! (ii) Now has to prove by preponderance if both shift

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