I. WHO REGULATES EVIDENCE 3 Rule 103 – Regulation of evidence 3 II. RELEVANCE 3 Rule 401 – Relevant Evidence-3 Fact of consequence-3 Rule 402-Evidence which is not relevant is not admissible!! 3 Rule 104 (b)-Evidence can be admitted conditionally. 3 III. UNFAIRLY PREJUDICIAL EVIDENCE 4 Rule 403-Unfair Prejudice 4 IV. EXAMINATION AND IMPEACHMENT OF WITNESSES 4 Rule 601 – competency – 4 Rule 602 – lack of personal knowledge-4 Rule 605 – judges are not competent to testify 4 Rule 606 – a juror can not testify 4 Rule 607 – anyone may impeach a witness. 5 Rule 609 criminal convictions 5 Rule 608 – evidence of character and conduct-5 Rule 613 – Prior statements of witness-5 Rule 611 – mode of interrogation 6 Rule 612 – writing used to refresh memory 6 Rule 615 – Exclusion of witnesses. 6 Extrinsic evidence is allowed for 6 V. BASIC HEARSAY RULES 6 Rule 801-Hearsay definitions 7 VI. OFFERING STATEMENTS FOR NON-HEARSAY PURPOSE 7 VII. WITNESS PRIOR STATEMENT EXEMPTIONS 8 801 (d) (1)(A) Prior inconsistent statements for truth 8 801 (d) (1)(B) Prior consistent statements for truth 8 801 (d) (1)(C) Pretrial identification 8 VIII. PARTY ADMISSION EXEMPTIONS 9 Rule 801 (d) (2) Admission by party opponent 9 801 (d)(2) (A) Straight admission 9 801 (d) (2) (B) Adoptive admission 9 801 (d) (1)(C) Authorized Admissions 9 801 (d) (1)(D) Employee Admissions 10 801 (d) (1)(E) Co-conspirator Admissions 10 IX. AVAILABILITY OF DECLARANT INMATERIAL EXCEPTIONS 10 Rule 803 Hearsay exceptions – availability of declarant immaterial 10 803 (1) Present sense impressions 10 803 (2) Excited utterances 11 803 (3) Presently existing state of mind, feeling or belief 11 803 (4) Medical Diagnosis 11 803 (5) Past recollection recorded 11 803 (6) and (7) Business records 12 803 (8) and (10) Public records 12 X. DECLARANT UNAVAILABLE EXCEPTIONS 12 Rule 804-Hearsay Exceptions-declarant unavailable 12 Helen Eastwood Page 1 1/30/08804(b)(1) statements given under oath 13 804(b)(2) statement at time of imminent death 13 804(b)(3) statement against interest 14 XI. RESIDUAL HEARSAY 14 Rule 807 Residual Exception – 14 XII. CONFRONTATION CLAUSE 14 XIII. CHARACTER EVIDENCE 15 Rule 404-Character evidence not admissible to prove conduct 15 Rule 405 – Methods of proving character 15 Rule 412-Relevance of alleged sexual predisposition (sex offense cases) 15 Rule 413-Evidence of similar crimes in sexual assault cases (criminal only) 15 Helen Eastwood Page 2 1/30/08EVIDENCE OUTLINE SUMMER 2002 I. WHO REGULATES EVIDENCE The judge has the responsibility of regulating the evidence presented at trial, to make determinations on what can come in and what has to stay out. Role of the Jury-to weight the evidence and make a decision about the facts and decide how law applied to facts. Attorney’s role-make accurate and specific objections to help with appeal Rule 103 – Regulation of evidence a) error -may not be based on a ruling which admits or excludes evidence unless a substantial right of party is effected 1) and an objection has been made in timely manner 2) or there is an offer of proof that the ruling which excluded evidence had been provided with apparent context within questions asked b) record of offer and ruling c) hearing of jury-inadmissible evidence should not be heard by jury d) plain error-clear error affecting substantial rights. STANDARD OF REVIEW ON APPEAL-plain error or abuse of discretion-must be based on an error that effects a substantial right II. RELEVANCE Rule 401 – Relevant Evidenceaan evidence with a tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. -chains of inferences can be made to show that a piece of evidence is relevant. Fact of consequenceaa an element of the cause of action, claim or defense b) the credibility of witness c) background facts Rule 402-Evidence which is not relevant is not admissible!! Rule 104 (b)-Evidence can be admitted conditionally. If a reasonable jury could find by a preponderance of the evidence that the fact exists. Other evidence must tie the fact in at a later point in time. If not tied in excluded. Knapp v. State – plaintiff said he acted in self-defense. He claimed that he had heard that the man who he killed had injured someone else. Here the fact could not be tied in because the plaintiff couldn’t remember or identify who had given him the information about the man he killed. Helen Eastwood Page 3 1/30/08III. UNFAIRLY PREJUDICIAL EVIDENCE Rule 403-Unfair Prejudice Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Examples of evidence generally found unfairly prejudicial probability evidence-because often not accurate People v. Collins – probability expertise regarding identification of perpetrator was excluded because it was found to be unfairly prejudicial. scientific evidence-not allowed unless the situation is substantially similar to what it intends to recreate. Frye v. US-test = whether the subject matter was scientific knowledge, whether the technique has been tested, whether it has been subjected to peer review or publication, known rate of error, standards controlling the operation exist and have been maintained, is the test generally accepted in the field. Daubert-looks at whether scientifically valid and reasoning properly applied. Kumho Tire Co. – extends Frye test to technical expertise. evidence of excessive violence – lose your lunch standard similar occurrences, happenings and events-only allowed in accidents-to show causation of dangerous instrumentality, to show course of dealings in contracts, to show value of items, to show usage in an industry. Generally should be avoided because prejudicial and only substantially similar situations should be included. Old Chief v. US evidence of prior criminal convictions should not have been admitted because it was unduly prejudicial when an admission existed. IV. EXAMINATION AND IMPEACHMENT OF WITNESSES Rule 601 – competency – witnesses must be competent to testify. --foundational requirements = a) know what means to tell the truth and b) possess relevant information. All witnesses are presumptively competent Rule 602 – lack of personal knowledgewitnnesse must not testify if they lack personal knowledge of the matter -purpose to exclude hearsay and speculation. -experts may testify without personal knowledge Rule 605 – judges are not competent to testify in trial as a witness when presiding over a trial. Rule 606 – a juror can not testify as a witness in a trial where they are sitting as witness. They may be called to testify on the question of whether extraneous prejudicial information or improper influence was used to make a decision Rule 607 – anyone may impeach a witness. Helen Eastwood Page 4 1/30/08(You may impeach your own!) – To impeach must show that witness testimony is untrue or inaccurate. Types of impeachment: a) contradiction-says different things at different times. If denies saying contradicting facts no extrinsic evidence may be used to prove. b) bias-shows has been influenced, prejudiced or predisposed against or for a party. Rule 609 criminal convictions – impeachment by evidence of conviction of a crime may come in if the crime was punishable by imprisonment in excess of one year and if the probative value of admitting the evidence outweighs the prejudicial effect to the accused, and evidence for the conviction of a crime of dishonesty may be admitted regardless of punishment. criminal convictions-crimes of dishonesty and felonies punishable by more than a year in prison may come in. Stale convictions (more than 10 years old since date of conviction or release from incarceration) and juvenile convictions are excluded. *Always be aware of 403 (b) (unfairly prejudicial) some felonies might not be let in for this reason. Felony convictions when defendant in criminal trial is testifying are only allowed if their probative value outweighs prejudicial effect. Look at similarity of prior crime (if very similar likely jury will use it against defendant), the importance of defendant’s credibility, the nature and date of crime and significance of defendant’s testimony overall). Convictions may be proven with extrinsic evidence. US v. Brackeen – said robbery was not a dishonesty crime and formed narrow interpretation using only cases where there has been deceit or fraud. Rule 608 – evidence of character and conductaa the credibility of a witness may be attacked only regarding truthfulness. b) on cross examination specific instances of conduct may be brought in if probative to truthfulness of witness Rule 608 (b) prior untruthful bad acts-no conviction required, looks only to witnesses ability to speak truthfully. E.g. fraud, obtaining property under false pretences, perjury etc. Only may ask about the act not any convictions related. No extrinsic evidence allowed. Rule 608 (a) – another person may be used to testify that a witness has a reputation for untruthfulness e) testimonial capacity-looks at perception, memory, narration and sincerity-both intrinsic and extrinsic evidence may be used. Rule 613 – Prior statements of witnesscca be examined even if not written. The contents need to be disclosed at request or disclosed to opposing council. prior inconsistent statements-two statements are needed. If at trial something is said that is different from something that was said before trial then that second statement can come in to contradict the first. However, if at trial the person said that they didn’t remember then the inconsistent statement can not come in against them. Rule 611 – mode of interrogation – a) court should exercise control over mode and order of interrogating witnesses. b) Cross examination is limited to subject matter of direct examination and issues of credibility. c) Leading questions can only be used on direct as necessary to develop the witness’ testimony-ordinarily Helen Eastwood Page 5 1/30/08leading questions should be permitted on cross. --common objections 1) Leading questions-suggest an answer 2) Asked and answered 3) Compound questions 4) Questions assuming facts not in evidence 5) Argumentative questions 6) Questions calling for speculation 7) Non-responsive answer 8) Narrative answers Rule 612 – writing used to refresh memory either while or before testifying. The other party may have writing produced, has the right to cross-examine and to introduce in evidence portions which relate to testimony of witness. Anything may be used to refresh the memory even if not related to the facts of the case. Rule 615 – Exclusion of witnesses. At the request of a party the court shall order witnesses excluded so that they can’t hear others testimony. Exceptions to this rule include-parties, an officer or employee of a party which is not a natural person designated as its representative by its attorney, or a person whose presence is shown by a party to be essential to the presentation or a person authorized by statute. Extrinsic evidence is allowed for 1) bias 2) fact at issue 3) testimonial capacity 4) convictions of crime 5) reputation or opinion about truthfulness of another witness Extrinsic evidence is not allowed for 1) contradicting on a collateral fact 2) showing a witness’ prior inconsistent statement on a collateral fact 3) offering a prior bad act relating to witness’ truthfulness V. BASIC HEARSAY RULES HEARSAY MATRIX 1. Does evidence constitute an out of court statement? 2. If so, what is statement offered to prove? 3. If statement is for a non-hearsay purpose is that purpose relevant? 4. If statement is offered for truth, are any of the exceptions available? Theory-preserves the right to cross-examine, addresses concerns about hearsay including --sincerity, perception, memory and communication difficulties. Helen Eastwood Page 6 1/30/08Rule 801-Hearsay definitions a) Statement-oral or written assertion or nonverbal conduct if intended to be an assertion b) Declarant-a person who makes a statement. ONLY PEOPLE ARE DECLARANTS!! -machinery is not a declarant since can not assert c) Hearsay-a statement made outside of court and offered to prove the truth of the matter asserted (A declarant makes an out of court oral, written or non-verbal statement offered to prove the truth of the matter asserted) Implied assertions-Wright v. Tatham – In a will contest the nephew tried to show that uncle was incompetent at time wrote will. His estate in defense offered letters were written to the uncle to prove that the uncle was sane. The House of Lords excluded the letters as hearsay. *Not good law under 801 because the letters were not written with the intent of proving the uncle was sane. US v. Zenni – The prosecutor offered evidence that when police answered telephone the person on the other end asked about booking bets. The phone calls were offered as circumstantial evidence that the callers believed they were calling Zenni-a bookmaker. The court held that the statements were admissible because the people calling were not making assertions. Sub-assertions-if any part of a statement has an assertion then the statement is hearsay. Invisible assertions-when the declarant talks about their own perceptions but their own perceptions were based on assertions by someone else. Attributed assertions-statement made by one person and therefore also attributed to conspirator. Hearsay truths-Paraphrasing is still hearsay Hearsay can exist when the witness is the declarant If the inference depends on the truth of the statement then the statement is hearsay. Statements made in presence of police officer are still hearsay. VI. OFFERING STATEMENTS FOR NON-HEARSAY PURPOSE Theory – some statements are relevant even if the truth of the matter asserted does not matter. Remember to beware of RELEVANCE and UNFAIR PREJUDICE!! Common non-hearsay uses 1. offered as evidence of speaker’s state of mind – if declarant’s belief is a material fact or if the belief is circumstantial evidence for the behavior of the declarant 2. offered as evidence of state of mind of person who heard a statement– if declarant’s belief is a material fact or if the belief is circumstantial evidence for the behavior of the declarant 3. offered as verbal act or words of independent legal significance— if the assertion is direct evidence of a material fact 4. offered to contradict or impeach in court testimony— to show credibility issues with a witness Helen Eastwood Page 7 1/30/085. offered to provide context and meaning— to help describe the general story of what occurred VII. WITNESS PRIOR STATEMENT EXEMPTIONS Rule 801 (d) Prior statements which are not hearsay – (1) – the declarant testifies at the trial or hearing and is subject to cross-exam concerning the statement and the statement is a) inconsistent and was given under oath subject to perjury at a trial, hearing, or other proceeding or in a deposition or b) is consistent with a declarant’s testimony and is used to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive or c) is one of identification of a person after perceiving the person. Theory – it makes sense to admit statements where the other party had an opportunity to cross examine already. Also statements are being made under circumstances where it is likely that they will be accurate. Mini-trials can take place so that the judge can determine if the evidence should be admitted. Proponents offer evidence supporting that the foundational elements have or have not been met. Foundational requirements 801 (d) (1)(A) Prior inconsistent statements for truth a) statement is inconsistent with prior statements b) it is made under oath Foundational requirements 801 (d) (1)(B) Prior consistent statements for truth a) statement is consistent with prior statements b) it is made under oath c) the other party has attacked the credibility of the witness Steps-1) X testifies 2) cross examination attacks X’s credibility saying that the testimony is fabricated 3) re-direct X’s attorney offers extrinsic evidence of a prior consistent statement made before the alleged fabrication Tome v. US – statements are allowed to rebut an express or implied charge of recent fabrication or improper influence so long as statement was made before alleged fabrication. In this case statements to child’s physician allowed. Foundational requirements 801 (d) (1)(C) Pretrial identification a) a witness testifies at trial and is subject to cross exam b) the witness’ pretrial statement identifies the person c) the pretrial statement is made with personal knowledge (having seen the person) **pretrial id is generally admitted as prior inconsistent statement without having to prove the other party had attacked the credibility of the witness. US v. Owens – Owens challenged the pretrial identification of himself since at the time of the trial the person who identified him could no longer remember. Court found that prior the statement was admissible because the foundational requirements were met. Helen Eastwood Page 8 1/30/08VIII. PARTY ADMISSION EXEMPTIONS Rule 801 (d) (2) Admission by party opponent – the statement is offered against a party and is A) the party’s own statement (either through individual or representative capacity), or B) a statement of which party has manifested an adoption or belief in truth, or C) statement by a person authorized by the party to make a statement concerning the subject or D) a statement by the party’s agent or servant concerning a matter within scope of agency or employment during existence of the relationship or E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Need to prove that the declarant had authority to speak regarding the subject. Principles-1) a party can’t offer party’s own out of court statement into evidence as an admission 2) any statement can qualify even if at the time it didn’t seem like it was against party’s interest at the time 3) it doesn’t matter when the statement was made Theory-people should be held responsible for what they say and are responsible for protecting their own legal rights. When a statement is a straight admission-the person is in court and can be cross examined. For vicarious statements there is usually a continuing relationship so the person can be brought in to be cross examined. Foundational requirements 801 (d)(2) (A) Straight admission a) offered against the party who made it b) regardless of the capacity in which it was made Foundational requirements 801 (d) (2) (B) Adoptive admission a) circumstances must show that the party heard the statement b) the party must have understood the statement c) the subject matter of the statement has to have been within party’s personal knowledge d) under the circumstances a reasonable person would have denied the statement had it not been true. e) the statement is being offered against the party who made the statement Foundational requirements 801 (d) (1)(C) Authorized Admissions a) the declarant had speaking authority (often implied through agency law principles) b) the declarant’s statement was within the authority c) the statement is being offered against the party who made the statement Foundational requirements 801 (d) (1)(D) Employee Admissions a) the statement is being offered against the party who made the statement b) the declarant was the adversary’s agent or servant c) the statement concerns a matter within the scope of employment or agency Helen Eastwood Page 9 1/30/08d) the statement was made during employment Foundational requirements 801 (d) (1)(E) Co-conspirator Admissions a) the statement is being offered against the party who made the statement b) the declarant was the defendant’s co-conspirator c) the statement was made during the course of the conspiracy d) the statement was made in furtherance of the conspiracy Bourjaily v. US -Lonardo made arrangements to buy cocaine from an FBI agent and told the agent that he had a friend who wanted to know more about the quality. The supreme court said that Lonardo’s statements could be used for truth of matter as an admission against Bourjaily. Here the court found that the prosecutor had to prove by a preponderance of the evidence that a conspiracy existed not beyond a reasonable doubt. **After this decision congress added that the statement itself wasn’t enough to prove that there was a conspiracy. IX. AVAILABILITY OF DECLARANT INMATERIAL EXCEPTIONS Rule 803 Hearsay exceptions – availability of declarant immaterial 1. Present sense impression-statement made while declarant was perceiving or immediately thereafter 2. Excited utterance – a statement related to a startling event while person under stress from event 3. Then existing mental, emotional or physical condition-a statement of the declarant’s then existing emotions, sensations, physical condition but not statements of memory or believed unless dealing with a will 4. Statements for the purpose of medical diagnosis or treatment 5. Recorded recollection-a memo or record concerning a matter about which the declarant once had knowledge but now can’t remember 6. Records of regularly conducted activity-business reports 7. Absence of entry in records kept in accordance with the provisions of paragraph 6 8. Public records and reports 10. Absence of public record or entry **PARTY MAKING HEARSAY ASSERTION HAS THE BURDEN OF PERSUADING THE JUDGE BY A PERPONDERANCE OF THE EVIDENCE THAT THE FOUNDATIONAL ELEMENTS EXIST! Theory-the exceptions all relate to situations in which the writers of the federal rules of evidence felt that the declarant was likely to be telling the truth and that the statements are therefore trustworthy. Foundational requirements 803 (1) Present sense impressions a) the statement describes or explains an event or condition b) the statement is made while the declarant is perceiving the event or shortly thereafter ** event does not need to be starling or unusual! Foundational requirements 803 (2) Excited utterances a) the statement relates to a startling event or condition b) the declarant makes statement while under the stress of the event Helen Eastwood Page 10 1/30/08c) the declarant has first hand knowledge of the event Foundational requirements 803 (3) Presently existing state of mind, feeling or belief a) presently existing b) state of mind, feeling or belief related only to the inside world of the declarant-eg. I am afraid of X. Other parts of the statement can be kept out-eg. because he carries a gun. c) statements where the declarant is describing a memory or belief is not allowed in for truth of matter. Hillmon-court extended state of mind to include letters written by the declarant stating that he planned to go West with the plaintiff’s husband (who she is claiming is dead). Pheaster-court extended state of mind to include statements to others regarding the fact that he was meeting X at the parking lot at a certain time. The statement was used to show that X was in the parking lot. Annunziato – court extended state of mind to include the reason behind the state of mind. Somebody called me and demanded money and I plan to send it to them. Foundational requirements 803 (4) Medical Diagnosis a) statement was made for purpose of medical diagnosis or treatment b) statement describes 1) declarant’s medical history, 2) the declarant’s past or present symptoms, pain or sensations, 3) the inception or general character or cause of the declarant’s pain c) the matters are reasonably pertinent to the diagnosis or treatment US v. Tome -statements by the child to the medical physician but not a caseworker were admissible as evidence. Foundational requirements 803 (5) Past recollection recorded a) the declarant is testifying as a witness in the case where the statement is offered b) the declarant at one time had personal knowledge of the matter about which the declarant is asked c) the declarant presently has insufficient information to testify accurately about the matter-(forgotten the info) d) the declarant set forth the matter in a written memo or record or had adopted another person’s written memo or record e) at the time when the declarant made or adopted the written memo the matter was fresh in witness’ memory f) the declarant testifies that the written memo or record is accurate. **The written document is not received into evidence but only read into evidence to prevent to great a weight being placed on the evidence by the jury. Only if the adversary uses the document is it received into evidence. Foundational requirements 803 (6) and (7) Business records a) a business entity seeks to offer into evidence a memo, report, … b) the information in the written material was entered at or near the time that the events referred to Helen Eastwood Page 11 1/30/08in the material occurred c) information contained in the written material was provided by people with personal knowledge d) information contained in the written material relates to an activity which the business regularly conducts e) it is a regular activity of the business to prepare such written material (7)-if records have left out information that is normally recorded this is also admissible. Palmer v. Hoffman – RR was sued for wrongful death. Sought to introduce a document made as an accident report. Court held that it was inadmissible because was only made for purpose of litigation and not as part of everyday business practice. **Today these types of reports are generally allowed* Foundational requirements 803 (8) and (10) Public records a) prepared by public employee during course of business b) the record does not have to be part of a regular procedure 803(8)(A)-written records regarding internal affairs e.g. purchasing office’s receipts and disbursements 803(8)(B)-materials observed by public servants who had an official duty to observe and report them. **IN CRIMINAL CASES POLICE REPORTS CAN NOT BE USED WITHOUT THE DECLARANT ON THE STAND IN ORDER TO PROTECT 6TH AMENDMENT RIGHTS. 803(8)(C)-factual findings from an authorized investigation 803(10)-if records have left out information that is normally recorded this is also admissible. Beech Aircraft Corp. v. Rainey Court extended the admission of opinions from an authorized investigation. Court found that it was too difficult a task to attempt to separate the facts from the opinions. *Statements made to the investigator can not be admitted themselves only the conclusions made from those statements. X. DECLARANT UNAVAILABLE EXCEPTIONS Rule 804-Hearsay Exceptions-declarant unavailable a) Definition of unavailable 1) exempted by ruling of court due to privilege 2) persists in refusing to testify concerning subject matter even after ordered by court 3) testifies to lack of memory of subject matter 4) is unable to be present because the declarant is dead, or has existing physical or mental infirmity 5) is absent and the person wanting to admit the evidence has been unable to get the person to the court through subpoena etc. Under FR of Civil Procedure 32 (a)(3) the following make a declarant unavailable so that deposition testimony may be admitted -dead -more than 100 miles from place of trial -unable to attend because of age, illness, or imprisonment -the party has not been able to procure the person’s attendance with a subpoena Helen Eastwood Page 12 1/30/08Gordon v. D&G Escrow – the standard for having a person determined absent is very high! You must have looked very hard for the missing person. Need to show perservering and untiring efforts to secure attendance. b) the following can be admitted if the declarant is deemed unavailable 1) Former testimony given under oath at same or different proceeding if the party against whom the testimony is offered had a chance or similar motive to develop testimony through direct, cross or redirect examination. 2) Statement under belief of impending death if the statement refers to the cause or circumstances of what the declarant believed to be causing impending death. 3) Statement against interest – if at the time of the making of the statement the declarant knew it was against his or her pecuniary or proprietary interest and that a reasonable person in the declrant’s position would not have made the statement unless believing it to be true. Exposes the declarant to liability. Theory – Reluctant to admit this evidence unless it is the only option to do without the evidence altogether. Foundational Requirements 804(b)(1) statements given under oath a) testimony given at a qualifying hearing or deposition b) the party against whom testimony is offered had an opportunity and similar motive to develop testimony *In civil cases – a declarant’s former testimony is admissible if it is offered against a party whose predecessor in interest had an opportunity and similar motive to cross-examine the witness. US v. DiNapoli-When two witnesses became unavailable because they invoked the 5th amendment. The defendants tried to admit grand jury testimony but it was not allowed because there was not evidence that the prosecutor wanted to prove the falsity of the witnesses assertions and if the testimony was admitted that would be what they wanted to do. Therefore the motives were different. Foundational Requirements 804(b)(2) statement at time of imminent death a) the statement was made when declarant thought death was imminent b) the statement concerns the cause or circumstances believed to be causing death c) the dying declaration is used for prosecution of homicide, or civil action. Not allowed in non-homicide criminal cases. Foundational Requirements 804(b)(3) statement against interest a) statement must be contrary to declarant’s pecuniary or proprietary interest b) tends to subject to criminal or civil liability c) tends to render invalid a claim by declarant against another * Can be from any time as long as at the time it was made it was made against their interest. Need Helen Eastwood Page 13 1/30/08to evaluate and present evidence regarding interest of statement. Need to beware of neutral vs. against interest statements. Willamson v. US – Supreme court found that statements made to police upon arrest were both exculpatory and inculpatory. Court held that only those statements that were self incriminating could be used against the co-conspirator. Remanded to the lower court to determine whether each of the statements was inculpatory or exculpatory. XI. RESIDUAL HEARSAY Rule 807 Residual Exception – covers hearsay that does not meet one of the exceptions but has similar guarantees of trustworthiness. Foundational Requirements807 a) must be equivalent trustworthiness b) the statement is offered to prove a material fact c) the statement is more probative than any other evidence might be d) the interests of justice will be served e) pretrial notice Near miss argument is not accepted. Evidence may still be admitted even if it barely missed one of the other exceptions or exemptions. XII. CONFRONTATION CLAUSE Defendants in criminal trials have the right to confrontation. Hearsay may only be admitted against a defendant without the witness on the stand when the evidence has a strong indicia of reliability and the hearsay rule is firmly rooted. Supreme Court has held that the hearsay rules all of 803 and most of 804 rules are firmly rooted. 804 (b) (3) is not firmly rooted at least as concerning the admittance of accomplices statements. If a statement is firmly rooted one does not have to present evidence that it has an indicia of reliability nor that the defendant is unavailable. If a statement is not firmly rooted e.g. 807 you have to show both that the witness is unavailable and that the testimony has an indicia of reliability. The indicia of reliability must come from the circumstances surrounding the making of the statement and not from circumstantial evidence. Idaho v. Wright – Court held that can’t use corroborating evidence to show that a statement is trustworthy. Statements made by a child against her father and testified to by a doctor were not allowed. The father needed to have a right to cross-examine the witness and court felt that the way the questioning took place by doctor was not trustworthy. Other evidence could not be used to show that the child’s evidence was truthful. Dissent-corroboration of the statements by other evidence should be allowed. Lilly v. Virginia – court held that could not use full statement of an accomplice which included parts that inculpated another and exculpated himself even when some of his statement was self inculpatory. Court said that need to go through and identify which parts of the statement are truly against his interest. Some of court felt that-None of the statement should come in because when an accomplice is Helen Eastwood Page 14 1/30/08testifying he is doing so to try to take the blame off of himself. XIII. CHARACTER EVIDENCE Rule 404-Character evidence not admissible to prove conduct a) generally evidence of character or trait of character is not admissible for proving the actions of a person at a particular point in time except: 1) Evidence offered by the accused that is pertinent to the case, then the prosecution can rebut the same and evidence offered by the accused about a victim, then the prosecution can rebut the same about the defendant 2) Evidence offered by the accused about the victim, then prosecution can rebut the same. Also prosecutor may offer evidence of peacefulness of victim to rebut evidence that they were the aggressor. 3) Impeachment evidence b) evidence of other crimes are not admissible to show that someone committed an act. They can be used to show, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, requires notice unless court excuses pretrial notice on good cause. Rule 405 – Methods of proving character a) reputation or opinion-where evidence of character is admissible then testimony about reputation and opinion are allowed. Cross –exam allows questions about specific instances of conduct. b) specific incidents of conduct-are allowed where character or trait of character is an essential element of the charge, claim, or defense. Rule 412-Relevance of alleged sexual predisposition (sex offense cases) a) generally inadmissible evidence for sexual predisposition 1) evidence offered to prove that alleged victim engaged in other sexual behavior 2) evidence offered to prove the alleged victim’s sexual predisposition b) exceptions-1) in a criminal case A) to prove that someone other than defendant was the source of the semen, injury or other evidence B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused to prove consent C) evidence which would violate rights of the defendant. 2) in a civil case always excluded unless the probative value substantially outweighs the harm to the victim and of unfair prejudice to either party Rule 413-Evidence of similar crimes in sexual assault cases (criminal only) a) evidence of defendant’s commission of another offense or offenses of sexual assault may be considered for its bearing on any matter to which it is relevant Rule 414 – same as 413 for criminal child molestation Rule 415-same as 413 for civil cases of sexual assault and child molestation Theory-character evidence is not very trustworthy because it is not predictive, it can change over time, people may have different values about character, character can be developed without much evidence. Helen Eastwood Page 15 1/30/08