Law School Outline- Evidence

Evidence outline RELEVANCE o FRE 606b-Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. o Tanner v US- Defendants argued that the district court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during their trial and that the conspiracy indictment failed to charge a crime against the United States. Defendants were convicted of conspiracy and fraud charges under 18 U.S.C.S. §§ 371 and 1341. The court held that the refusal to admit juror testimony was supported by Fed. R. Evid. 606(b) because it allowed a post-verdict inquiry only in cases of substantial, if not wholly conclusive, evidence of incompetency. The protection of jury deliberations from intrusive inquiry outweighed defendants' rights to inquire into the deliberations, especially in light of the insufficiency of non-juror evidence. As to defendants' concerns regarding the conspiracy count, the Court held that a conspiracy to defraud the United States could be effected by the use of third parties. Because 18 U.S.C.S. § 371 covered only conspiracies to defraud the United States or any agency thereof, however, the action was remanded for a determination as to whether the evidence showed that defendants' conspiracy to defraud the utility company involved misrepresentations to the REA.  Under 606b, jurors could not testify about juror misconduct that was not an outside influence. The point of the rule is to protect the deliberative process from investigation. o FRE 401-"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. o FRE 402- All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. o Difference between relevance and probative value o Probative value is the persuasive force that an item of knowledge adds to the sum total of probabilities established by all the evidence. Like a tile in the mosaic once it is on the wall. What does it add to the tiles around it? o Relevance is the tile in a vacuum. Do not look at what it adds to the tiles around it. o US v James-Because the trial court erred in excluding relevant evidence corroborating appellant's testimony, the court reversed the judgment of appellant's conviction. Appellant was convicted of aiding and abetting manslaughter. At trial, appellant argued self-defense and attempted to introduce evidence corroborating appellant's knowledge of the victim's prior violent misconduct. Finding that the only relevant facts concerning the victim's past were the facts appellant knew about, the trial court ordered that the evidence be excluded from the jury's deliberations. On appeal, the court found that the trial court's interpretation of the evidence was too narrow. Because it was necessary to appellant's defense that the jury believe her, the evidence should have been admitted because it corroborated her testimony. Because the crux of appellant's defense rested on her credibility and because the excluded evidence directly corroborated her credibility, exclusion of the evidence was prejudicial and more probably than not affected the verdict. o As a human tendency, people tell the truth. If the victim actually did these things, it makes it more likely that the def is telling the truth that he told her about them. o FRE 104b- conditional relevance-When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. o Cox v State-After his conviction for murder, the defendant contended that his warrantless arrest violated the Fourth and Fourteenth Amendments to the United States Constitution because the police unconstitutionally crossed the threshold of his home by opening the screen door, forcibly prevented him from closing the front door, and reached into the house to pull him out. He also contended that his subsequent confession should have been suppressed under the fruit of the poisonous tree doctrine. The court held even if the arrest was a violation of the federal constitution, the statement was admissible under the rule that where the police had probable cause to arrest a suspect, the exclusionary rule did not bar the state's use of a statement made by the defendant outside of his home, even though the statement was taken after the arrest made in the home was illegal. Because the defendant made his statement outside of his home following the alleged violation, the exclusionary rule did not bar its admission. The court found that the police had probable cause to arrest the defendant when they went to his house, without a warrant, to question him for the shooting.  New charges lodged against def’s friend Hammer might have given def a motive to kill Leonard but only if he had heard of the new charges. o FRE 403- Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. o Phrase by phrase  Although relevant- this rule permits exclusion of otherwise relevant evidence.  Evidence may be excluded- decisions are committed to the judge’s discretion and are reviewable on appeal only for abuse of discretion.  If probative value is substantially outweighed by- friendly towards admission of evidence. If they are exactly offset, the rule grants the judge no discretion to exclude.  The danger of unfair prejudice- relevant evidence is inherently prejudicial, but only unfair prejudice should be excluded.  The danger of confusion of the issues or misleading the jury- distracting the jury from the task at hand  Or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence- sheer waste of time may justify exclusion. o State v Bocharski- Defendant drifter's inculpatory statements, which were properly admissible, were the prime evidence in his conviction of killing a neighbor. Therefore, the high court upheld his convictions of first-degree felony murder and burglary, despite the fact that some of the photographs admitted at trial were both inflammatory and irrelevant. There was no need to instruct on manslaughter as a lesser-included offense, because felony murder had no lesserincluded offenses. The court found, however, that the trial court abused its discretion in conducting sentencing. It permitted defendant to waive his right to present mitigation evidence even though his competence was questionable and the waiver appeared to have been prompted o o o o by frustration with grossly inadequate funding by the county. Furthermore, there were indications that the trial court improperly considered victim impact evidence of family and friends, given in person and included in the presentence investigation report, in sentencing defendant to death.  Nothing suggested that the jurors’ consideration of the evidence was hampered by the objectionable photographs.  Best thing to do is not paint the lily- if you already have a beautiful lily don’t put paint on it. If you already have good evidence, don’t try to add meaningless stuff to it. US v James- see facts in notes earlier. The problem here under 403 is that upon hearing the truth about the victim’s violent past, the jury may be unfairly prejudiced and would tend to operate under the theory that he got what he deserved. Fuhrman tapes- claimed prejudice to the prosecution in criminal case. Rules that limited number of instances on the tape are admissible. Some of the tapes did not pass under 403. US v Myers- Defendant was convicted of bank robbery. On appeal, he contended that the district court committed reversible error when it refused to strike the testimony of alibi rebuttal witnesses whose identities were not disclosed before the trial, admitted evidence indicating that defendant had previously been convicted of armed bank robbery, and gave the jury a flight instruction that lacked sufficient evidentiary support. After review, the court concluded that the government had a continuing duty to notify defendant of the existence of alibi rebuttal witnesses and the district court abused its discretion when it failed to exclude the testimony of those undisclosed witnesses. The district court committed reversible error when it admitted evidence indicating that defendant had previously been convicted of armed robbery. It also erred in instructing the jury concerning the proper use of evidence indicating that defendant fled from FBI agents on two occasions subsequent to the commission of the robbery because there was no support in the record for such an instruction. The judgment and conviction appealed from was reversed.  Evidence of flight  Inference that are drawn  From def’s behavior to flight  From flight to consciousness of guilt  From consciousness of guilt to consciousness of guilt concerning crime charges  From consciousness of guilt concerning crim charged to actual guilt of crime charged.  Case is really about jury instructions  Even though def did flee from agents in California, no inference that he is guilt of the Florida robbery is possible.  The more remote in time the alleged flight from the commission of an offense, the greater the likelihood that it resulted from something other than feeling of guilt concerning that offense. People v Collins- Defendant and his wife were charged with and convicted of second degree robbery in violation of Cal. Penal Code §§ 211, 211(a), 1157. During trial, in an apparent attempt to bolster identification, plaintiff government called an instructor of mathematics as an expert witness and sought, through him, to establish that there was an overwhelming probability that the crime was committed by any couple answering the distinctive characteristics of the defendant and his wife. The witness testified, in substance, to the "product rule," stating that the probability of the joint occurrence of a number of mutually independent events was equal to the product of the individual probabilities that each of the events would occur. Defendant successfully argued that, because trial by mathematics was irrelevant, immaterial, an invasion of the province of the jury, and based on unfounded assumptions so confusing to the jury and defense counsel, its use constituted reversible error.  Problems with the testimony  The math and underlying assumptions hat are being inserted into the equations may be flawed  Each variable is independent  The numbers were arbitrary o US v Jackson- Defendant contended that admission of the contested evidence would unduly prejudice him. In conditionally granting the motions, the court held that the recent state felony conviction for assault could not be used to impeach defendant in the event that he took the stand. The evidence was not admissible under Fed. R. Evid. 609(a) because prior assaultive conduct had little bearing on the likelihood that defendant would tell the truth. At the same time, the knowledge that defendant was a recently convicted felon might have an unduly significant impact on the jury's determination of whether defendant committed armed bank robbery. Exclusion of the evidence was conditioned on defendant refraining from suggesting a pristine background on direct and defendant not present evidence of any assault convictions of any government witnesses. Evidence of defendant's presence in Georgia and use of a false name was inadmissible under Fed. R. Evid. 403 because its probative value was outweighed by possible prejudice. o 403 is always scales- balance of probative value and the unfair factors that would prejudice the def. o Old Chief- The charges against defendant resulted from a fracas involving at least one gunshot. Before trial, defendant moved for an order prohibiting the government from mentioning or offering into evidence any testimony regarding his prior criminal conviction for assault causing serious bodily injury, except to state that he had been convicted of a crime punishable by imprisonment exceeding one year. Defendant also offered to stipulate that he had been convicted of such a crime. The government refused the offered stipulation, and the district court ruled that the government was not required to so stipulate. The government introduced at trial, over defendant's objection, the order of judgment and commitment for defendant's prior conviction. The jury found defendant guilty on all counts, and the appellate court affirmed. On certiorari review, defendant argued that his offer to stipulate rendered the prior conviction inadmissible under Fed. R. Evid. 403. The Court agreed, holding that the district court abused its discretion in admitting defendant's record of conviction because its discounted probative value was substantially outweighed by the risk of unfair prejudice.  A district court abuses it discretion if it spurns such an offer and admits the full record of a prior judgment when the name of nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.  Relevance here was that a federal statute prevented anyone w/ previous conviction from carrying a firearm.  This is not hearsay bc the conviction is just a statement by judge that def was adjudicated- judge’s credibility does not matter, just that he said it bc the evidence is offered as an element of the crime, not under the theory of relevance (it has independent legal significance)  If the def has said he is willing to admit that he has a prior conviction (stipulation) if the govt agrees not to introduce what that conviction is for, you discount the probative value of the evidence (which varies depending on how much it impairs the interest of the govt as to why they are not required to stipulate). Here the govt is left with very little on the probative value side- it did not impair their interest very much, the discount is big, the probative value weight goes down. Therefore it was an abuse of discretion to allow the govt to disclose the nature of the conviction and they should have accepted the stipulation. CHARACTER EVIDENCE o Summary o Identify the issue to be proven o Identify the defense o Identify the evidence to be proffered o Identify the chain of inferences o Identify any problems you may meet under 403 o FRE 404 o (a) Character evidence generally- Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  (1) Character of accused - Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;  (2) Character of alleged victim - Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;  (3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609. o (b) Other crimes, wrongs, or acts  Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. o People v Zackowitz- Defendant was convicted of first degree murder. Defendant appealed, arguing that evidence regarding his possession of guns not involved in the homicide was improperly admitted at trial. The court reversed the conviction and ordered a new trial, holding that, while the prosecution contended it offered the evidence of possession of the guns to impeach defendant's credibility because he had no license for the guns, the evidence was actually used to evidence defendant's murderous disposition. Thus, the admission of the evidence unduly prejudiced defendant. o Modus operandi- present offense matches previous crime in idiosyncratic ways to prove identify (Zorro Z example). According to Fisher, the inference this could not be anyone else’s crime (but usually people just say it is that this is the def’s kind of crime, which in essence is going through the propensity box- saying that def has the character trait of committing this kind of crime)  sexual offenses are themselves idiosyncratic perhaps  US v Trenkler- Defendant was convicted of conspiracy, 18 U.S.C.S. § 371, receipt of explosive materials with knowledge and intent that they would be used to kill, injure and intimidate, and cause damage to real and personal property, 18 U.S.C.S. § 844(d), and malicious destruction of property by means of explosives, 18 U.S.C.S. § 844(i). Defendant contended on appeal that it was error for the district court to have allowed evidence of another bombing to have been presented. The court affirmed the conviction, finding that the district court did not abuse its discretion in determining that the numerous similarities in components, design, and technique of assembly, combined with the similar modus operandi and the closeness of geographic proximity between the two events, sufficiently supported the inference that the same person built both bombs. The held that it was proper to allow evidence of prior acts because the government showed that there existed a high degree of similarity between the other act and the charged crime. The government demonstrated that the two acts exhibited a commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual.  Heuring/Saffor- situations involving sex offenses in the family. Use the term “corroborate” testimony instead of “propensity” or “character trait”. Offenses must be strikingly similar and share unique characteristics. Identity is not usually at issue so you cannot use 404b. o Reverse 404b  US v Stevens- Appellant entered a military base and robbed two officers. Appellant also ordered one of the officers to perform fellatio on him. After the incident, the two victims went to the police, where they identified appellant's photo that was hanging on a bulletin board. Semen samples were also taken from one of the victim's mouth. Appellant was arrested and charged with sexual assault and robbery. Appellant was found guilty and challenged his conviction, arguing that the government failed to preserve the semen evidence taken from the victim's mouth; that the victim's identification of him was unconstitutional; and that the trial court improperly denied his request to introduce an expert witness that another person committed the crimes. The court held that because the government did not exercise bad faith, appellant's due process rights were not violated by the loss of the semen samples. The court also stated that the victim's identification of him at the police station was proper. However, the court concluded that the trial court erred in not allowing appellant's expert witness to testify that another person committed the crime, and the court remanded for a new trial.  Def wanted to introduce testimony of witness who claimed he had been robbed by another man resembling present victim’s description. He did not however identify the def as the assailant. Def claimed that in view of the parallels between the two crimes, one person likely committed both, and bc def was exonerated by the witness, makes it slightly more likely that def did not do the crimes. Ct held that the def’s presentation of reverse 404b evidence would not have degenerated into a mini-trial about whether or not the def had robbed the witness.  Given the apparent closeness of the evidence, it was possible that the admission of evidence about the witness robbery may have swayed the jury toward acquittal. Was not a harmless error.  REMEMBER- in FL called reverse Williams rule- must be mirror images of each other. o Doctrine of chances- brides in the bathtub- Rex v Smith-absolute improbability that the 3 events would befall someone who was innocent.  Imwrinkelreid- not going through PB  Rothstein- is going through PB o The Huddleston standard  Huddleston v US- Petitioner challenged his conviction of possessing stolen property in interstate commerce in violation of 18 U.S.C.S. § 659, on grounds that the trial court improperly admitted evidence of "similar acts" involving petitioner's previous sale of stolen televisions, on the issue of petitioner's knowledge, under Fed. R. Evid. 404(b). The intermediate court affirmed, and on certiorari, the court affirmed the intermediate court's decision, holding that the trial court properly allowed the evidence to go to the jury. The court held that the trial court was not required to make a preliminary finding that respondent had proved commission of the similar acts by a preponderance of the evidence. Rather, the trial court had only to determine that the evidence was offered for a proper purpose under Fed. R. Evid. 404(b), that its probative value outweighed its potential for prejudice under Fed. R. Evid. 403, and that it was relevant. The trial court properly concluded that the evidence was relevant under Fed. R. Evid. 402, as enforced through Fed. R. Evid. 104(a) and (b), because the jury could reasonably have found, by a preponderance of the evidence, that the televisions were stolen.  TEST: preponderance of the evidence  REMEMBER: in FL the standard is clear and convincing evidence, which is more than federal standard. o FRE 405- Methods of Proving Character o (a) Reputation or opinion.  In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. o (b) Specific instances of conduct.  In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.  REMEMBER: cannot use opinion in Florida  One instance is usually not enough to form an opinion of a general character trait.  When asking about reputation, ask “have you heard?” if there is a good faith basis for asking the question  When asking about opinion, ask “do you know?” if there is a good faith basis.  Proof of def’s character  Michelson v US- focuses on 404a and 405a   o Defendant was convicted of bribing a federal revenue agent. At trial on cross-examination of his character witnesses, the prosecutor asked the witnesses if they had ever heard that defendant was previously arrested for receiving stolen goods. Defendant claimed that this question constituted reversible error. The appellate court affirmed and held that the question was permissible but pointed out that the practice had been severely criticized. Upon writ of certiorari, the court affirmed the appellate court decision and thereby rejected the appellate court's invitation to adopt the Illinois rule providing that such questions were improper unless they related to offenses similar to those for which the defendant was on trial. The court held that the cross-examination question was proper because reports of defendant's arrest for receiving stolen goods, if admitted, would tend to weaken defendant's assertion that he was known as an honest and law-abiding citizen. The court found that defendant had no valid complaint at the latitude which existing law allowed to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense. o Lapse in time between arrest or specific instance and today affects relevance and at some point it becomes to gray. But if they have known the def that long, it may not affect it. o Any inconsistency with honesty when there is a good faith basis to ask, you can ask on cross exam with specific instances of conduct. Proof of def and victim’s character is civil cases  Perrin v Anderson- The administratrix argued that the district court erred in admitting testimony concerning the decedent's previous violent encounters with police, a shooting review board report, a statement that the patrolmen would be personally liable, and evidence of pornography in the decedent's home. The court disagreed. The previous violent encounters with police were not admissible as evidence of character but were admissible as evidence of habit (however violence is usually considered a character trait). The limitations on the methods of proving character did not apply to habits. The board report was properly admitted as a record of a public agency. The statement concerning personal liability was proper because the jury needed to know the impact an award would have on the patrolmen to properly assess punitive damages. The great quantity of pornography in the decedent's home, which was readily accessible to his six-year old son, was admissible because it was relevant to the damages sought on behalf of the son. The court did not concluded that accessibility of the pornography diminished the value of the decedent's relationship to his son but only that it was relevant to the nature of the influence the decedent was having on his son. o Can use 404a in civil case if it directly involves facts just like a criminal case. o Under 405a can only use reputation and opinion, so specific acts were impermissible  Securities Exchange Commission v Towers Financial Corp.- The SEC claimed that defendants were involved in a "Ponzi" scheme and that the one defendant made material false representations in furtherance of the scheme. The one defendant sought to call character witnesses at the trial. The SEC claimed that R. 404(a)(1) did not apply to civil trials and precluded the one defendant from calling the character witnesses. The court granted the SEC's motion. The court held that the use of the words "accused" and "prosecution" suggested that the exception under R. 404(a)(1) was limited to criminal cases and that character evidence was not admissible in civil cases. The court also held that the fact that the action involved securities fraud did not make the action a quasi-criminal proceeding. The court further held that the one defendant did not list himself as a witness, that he asserted the Fifth Amendment at his deposition, and that Fed. R. Evid. 608(a) did not apply because it was unlikely that the one defendant would testify at the trial. o Contrary view to Perrin. o FRE 406- Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. o Habit tends to be a specific behavioral response hat is almost unthinking in a specific repetitive stimulus situation. o REMEMBER- in FL, evidence of habit of individual is not in the statute, only routine practice of an organization, which was probably meant to remand the rule of habit to common law. Under the common law, it is generally admissible. Must have specific evidence of the specific behavior on the specific day (corroborative proof) o FRE 413- Evidence of Similar Crimes in Sexual Assault Cases o (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. o (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. o (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. o (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved- (1) any conduct proscribed by chapter 109A of title 18, United States Code;  (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;  (3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;  (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or  (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). o FRE 414- Evidence of Similar Crimes in Child Molestation Cases (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved— o (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; o (2) any conduct proscribed by chapter 110 of title 18, United States Code; o (3) contact between any part of the defendant's body or an object and the genitals or anus of a child; o (4) contact between the genitals or anus of the defendant and any part of the body of a child; o (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or o (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5). o FRE 415- Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.  REMEMBER- Fl has different exception for sexual assault. They have routinely admitted this evidence under modus operandi (identity)  Amendment- FL sec 90.404(2)- “any matter that is relevant” is admissible. Ultimately this will probably not go as far as the words take it if adjudicated.  In re amendment- adopted to the extent it is procedural. If substantive, ok unless declared unconstitutional bc legislature can make substantive rules. If procedural SC can adopt them otherwise they are unconstitutional bc they are procedural. o FRE 608- Evidence of Character and Conduct of Witness o (a) Opinion and reputation evidence of character. o The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. o (b) Specific instances of conduct. o Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. o The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. o FRE 609- Impeachment by Evidence of Conviction of Crime o (a) General rule. o For the purpose of attacking the credibility of a witness,  (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and  (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. o (b) Time limit. o Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.  Evidence of bias is not an attack on character but on believability. Cannot use it to support evidence of good character.  REMEMBER- in Fl cannot attack honesty w/ specific instances of conduct on cross exam. If permitted, prior convictions or inconsistent statements may be use to attacked their credibility  Cannot buttress the character of a witness unless it has been attacked  Def as the witness  US v Brewer- probative value of prior kidnapping conviction on the issue of def’s truthfulness should he take the stand, does not outweigh the prejudicial effect of such conviction could have on the jury. Admission of the other 3 convictions should sufficiently serve the purpose of impeaching the def’s credibility (those do pass the probative value outweighing the prejudicial effect test)  US v Brackeen- Appellant allegedly robbed three different banks on three separate days. In first robbery, appellant acted in close proximity to an accomplice, and surveillance photos showed accomplice pointing a pistol at bank teller. In other robberies, appellant was unarmed and apparently acted alone. Appellant was charged with aiding and abetting armed bank robbery in violation of 18 U.S.C.S. §§ 2, 2113(a) & 2113(d) (1988), and two counts of unarmed bank robbery in violation of 18 U.S.C.S. § 2113(a) (1988). District court allowed prosecution to impeach appellant with guilty pleas to unarmed bank robberies because such crimes were per se "dishonest" under Fed. R. Evid. (FRE) 609(a)(2). The appellate question was whether bank robbery necessarily involved "dishonesty," as that term is used in FRE 609(a)(2). Court reversed and remanded for new trial, holding that, in accordance with congressional intent, bank robbery was not per se a crime of "dishonesty" under FRE 609(a)(2). o REMEMBER- fl disagrees with the case, saying that theft crimes in general involve dishonesty.  FL SC said in passing that 403 applies to FL rule 90.610 but there are no cases actually dealing with it.  On cross exam, if you ask specific questions about the conviction, they can explain it within reason.  If inadmissible under 403/404b, not necessarily inadmissible under 609 bc it is a difference scale.  The more similar the previous conviction is to the present charges, the more likely the jury will go through the propensity box (once a thief always a thief)  Bias of witness- if not an attack on credibility, cannot call witness to testify for good character  Contradiction of prior statement- cannot be used to impeach unless they have a character trait of lying which would need more than this one instance. o Extrinsic evidence o Cannot use it in collateral matters. Must be something substantive to the case that falls under one of the exceptions for use of extrinsic evidence. RELIABILITY (Hearsay) o Recognizing hearsay o Identify the witness (the who) or the thing (the what) offered as evidence. o Identify the informational cargo (IC) of the testimony or the contents. o Figure out whether the IC contains words or conduct made or created by someone out of the trial (declarant) intended to assert or communicate expressly or impliedly some fact, emotion, belief, prediction, or any other state of affairs, and state precisely what they are if they are there. o Figure out what material facts in the litigation the IC is being offered to prove and identify the inferences that are necessary to connect the IC to the material fact. o Decide whether in order for the inferences to work, is it necessary for the assertion(s) contained in the IC to be true (meaning accurately perceived, remembered, narrated, and sincerely described or relation by the declarant). If so, then the evidence is hearsay and inadmissible unless there is an exception, bc the assertion was not subjected to the truth testing mechanism of crossexamination at the time it was made. o FRE 801- The following definitions apply under this article: o Declarant must be available! o (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. o (b) Declarant.  A "declarant" is a person who makes a statement. o (c) Hearsay.  "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. o (d) Statements which are not hearsay.  A statement is not hearsay if- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; OR o Tome v US- focus on 801(d)(1)(B)- Petitioner was charged with sexual child abuse of his daughter under 18 U.S.C.S. § 1153, et. seq. During trial, the court admitted certain witness statements, notwithstanding the fact that they were introduced after charges of recent fabrication had been made. Petitioner appealed the admission of these statements and the appellate court affirmed. Petitioner appealed on writ of certiorari. The question submitted to the court was whether out-of-court consistent statements made after an alleged fabrication, improper influence, or motive arose, were admissible under Fed. R. Evid. 801(d)(1)(B). Due to division of federal appellate courts, the Court accepted. The Court reversed and remanded the appellate court order because it found that Fed. R. Evid. 801(d)(1)(B) only permitted the introduction of consistent, out-of-court statements to rebut a recent fabrication, improper influence, or motive charge, when those statements were made prior to the time the charges of recent fabrication, improper influence, or motive arose. o Chamberlain v State- the consistent statement only has to come before one of the charges by the opposition to be admissible. o Commonwealth v Weichell- focus on 801(d)(1)(C) Mass. SC case. The court affirmed defendant's conviction for murder in the first degree. The evidence, challenged by defendant, included a composite sketch and out of court statements made by an eyewitness that also testified at trial and identified defendant in court. The court held that the sketch, which was not shown to be prepared under suggestive circumstances, was admissible as substantive evidence of identification. The court could not see any reason for excluding the out of court statements made concerning the sketch. The court found that the evidence admitted to prove motive, including evidence of considerable animosity between the victim and defendant, was relevant, and it was up to the jury to weigh the probative value. Evidence that other persons possessed a motive was properly excluded when it was   remote. Other evidentiary rulings made by the trial court concerning photographs were not erroneous. The court held that the verdict was supported by the weight of the evidence and the court saw no reason to grant a new trial or direct the entry of a verdict to the contrary. The judgment was affirmed o US v Owens- focus on 801(d)(1)(C)- Defendant, who was already incarcerated, was accused of attacking an correctional counselor and brutally beating him with a metal pipe. The correctional counselor suffered a fractured skull that resulted in a loss of memory. However, the correctional counselor was able to identify the defendant but could not do so at the trial. The defendant was convicted and he appealed on the basis of the Confrontation Clause and Fed. R. Evid. 802 right to confrontation. The lower court upheld the defendant's challenges and the government appealed. The Court reversed the judgment, holding that neither the Confrontation Clause nor Rule 802 was violated by admission of an identification statement of a witness who was unable, because of a memory loss, to testify concerning the basis for the identification. The Court found that successful cross-examination was not a constitutional guarantee. The Court noted that out-of-court statements were not inherently less reliable because of the possibility of suggestive procedures.  If there is good faith memory loss, testimony from the preliminary hearing may be admissible, but there must have been similar motive by the opposing party in cross-examination during the prior statement. (2)Admission by party-opponent. The statement is offered against a party and is o (A) the party's own statement, in either an individual or a representative capacity or o (B) a statement of which the party has manifested an adoption or belief in its truth, or o (C) a statement by a person authorized by the party to make a statement concerning the subject, or o (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or o (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.  The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).  Mahlandt v Wild Canid Survival Center- The case involved a civil action for damages arising out of an alleged attack by a wolf on a child. The focus on appeal was the correctness of three rulings that excluded conclusionary  statements against interest. Two of them were made by a defendant, who was also an employee of the corporate defendant; and the third was in the form of a statement appearing in the records of a board meeting of the corporate defendant. On appeal, the court ruled that relevant evidence was usually prejudicial to the cause of the side against which it was presented, and that the prejudice which concerned the court was unreasonable prejudice. The court held that Fed. R. Evid. 403 did not warrant the exclusion of the evidence of defendant employee statements as against himself or defendant corporation. Focus on 801(d)(2)(c and d). Bourjaily v US-Defendant was charged with conspiring to distribute cocaine. The government introduced, over defendant's objection, out-of-court telephone statements. The trial court held that such statements satisfied Fed. R. Evid. 801(d)(2)(E) as being the statements made by a coconspirator during the course and in the furtherance of the conspiracy. On appeal, the Court held that in making a preliminary factual determination under Rule 801(d)(2)(E) as to whether the conspiracy existed and that defendant and the declarant were members of the conspiracy, the trial court could examine the hearsay statements sought to be admitted. The Court further rejected any suggestion that the admission of statements against defendant violated his rights under the Confrontation Clause of the Sixth Amendment. As the requirements for admission under Fed. R. Evid. 801(d)(2)(E) were identical to the requirements of the Confrontation Clause and because the statements were admissible under the Rule, there was no constitutional problem. The Confrontation Clause did not require a trial court to embark on an independent inquiry into the reliability of statements that satisfied the requirements of Rule 801(d)(2)(E). Also focus on 104a- Questions of admissibility generally- Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. o Judge must find all three factors in co-conspirator exception exist by a preponderance of the evidence. In doing this, he may look at other evidence that is not admissible (see 104a). He may rely on the assertion at issue but not alone. o REMEMBER: There is no counterpart to 104a in FL. Case law disagrees w/ this case in that they do no require proof of conspiracy by independent evidence. (from Romini). There the court also accepted the POE standard but limited it to admissible evidence only in regards to coconspirator admissions. o FRE 803-The following are not excluded by the hearsay rule, even though the declarant is available as a witness (availability immaterial): o (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.  REMEMBER in FL this exception says unless circumstances indicate untrustworithiness. This is known as the Chancellor’s Foot. o (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. o (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.  Yetter calls this the Barbara Streisand provision bc it is about “Feelings”  Mutual Life Ins. v Hillmon- Plaintiff sought recovery from three separate defendant insurance companies who issued life insurance policies on her husband. Plaintiff claimed that her husband was killed in an accidental shooting and his body was buried following an inquest. Defendants claimed that the body was that of the deceased's travelling companion and not the deceased himself. The United States Supreme Court found that exclusion of defendants' introduction of the travelling companion's letters to his fiance for the purpose of establishing his intent to accompany the insured was error. The Court indicated the expressed intentions were verbal acts reliable for proving a then existing state of mind from which a jury could decide reliability. The Court found that the lower court's allocation of only three peremptory challenges among defendants was error because defendants each had the right to three challenges and consolidation for purposes of judicial economy did not divest them of their individual rights.  See also Shepard v US- were the statements admissible on the grounds that the declarant had a then existing mental condition contrary to suicide? o (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.  US v Ironshell-Defendant appealed his assault with intent to commit rape conviction, challenging evidentiary rulings and the failure to instruct the jury on an assault charge, and alleging that the Major Crimes Act, 18 U.S.C.S. § 1153, violated the U. S. Const. XIV equal protection clause. The court ruled that the victim's statements to a doctor regarding what happened were admissible under Fed. R. Evid. 803(4) because they were pertinent to diagnosis and treatment, and statements to a police officer an hour after the assault were admissible under Rule 803(2). The U. S. Const. amend. VI confrontation clause was not violated because the statements had sufficient indicia of reliability. Denial of the instruction on the assault by striking charge was proper because it required physical contact and was not a lesser included offense. The Act did not violate equal protection because defendant was entitled to an instruction on a state child molestation charge, but declined.  REMEMBER: in FL the declarant may be the person seeking the advice OR an individual who has the knowledge of the facts and is legally responsible for the erson who is unable to communicate the facts. The FRE is silent on this issue, but some case law interprets it similar to FL.  State v Jones- the Reinville court reasoned that in cases of child abuse, the general rule that statements of fault or identity do not meet the requirements of the exception should not apply bc statements made by abused to a physician naming a member of the abused’s family as the abuser is reasonably pertinent to treatment. However, the Jones court held that in light of the legislative history rejecting the expansion of this exception, it rejected the Reinville incorporation into FL law and found these types of statement to be controlled by FL sec 90.803(2)- excited utterance. o (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  Johnson v State- Texas Appeal Ct case- Appellant was convicted of capital murder for the shooting death of a man, and was sentenced to death. On appeal, appellant raised 53 points of error, including allegations regarding the sufficiency of the evidence, and the admission of extraneous evidence. The previously recorded statement of a prosecution witness was read into the record after the witness indicated that he had no recollection of the events in question. The court held that the statement was admitted without proper predicate under Tex. R. Evid. 803(5). The court held that the trial court committed an additional error requiring reversal when it admitted evidence of two prior extraneous offenses of which appellant had been acquitted. The court reversed appellant's conviction and sentence and remanded for new trial. o (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. o (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or o o o o o o o o o o nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. o (18) Learned treatises. To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. o (19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. o (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. o (21) Reputation as to character. Reputation of a person's character among associates or in the community. o (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. o (23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. o FRE 804- Hearsay Exceptions; Declarant Unavailable o (a) Definition of unavailability.  "Unavailability as a witness" includes situations in which the declarant- (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or  (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or  (3) testifies to a lack of memory of the subject matter of the declarant's statement; or  (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or  (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.  A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. o (b) Hearsay exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:  (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. o US v Dinapoli- Appellants sought review of their criminal convictions under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1962 (1988). The court refused to allow into evidence the grand jury testimony of two defense witnesses who invoked the privilege against self-incrimination at trial under Fed. R. Evid. 804(b)(1) because appellee prosecutor had different motives when examining the witnesses at the two proceedings. On appeal, the court was reversed. On further appeal, the court reversed again, holding that in assessing similarity of motive, the party that resisted the offered testimony at trial must have had, at a prior proceeding, an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. Appellee's motives in examining the witnesses before the grand jury and at trial were not substantially similar because appellee had no interest in showing the witnesses' testimony to be false before the grand jury. o Lloyd v American Export Lines, Inc.- civil suit-This lawsuit resulted from an altercation between a crewmember and an electrician on their ship. Electrician filed an action against the ship and alleged negligence under the Jones Act, 46 U.S.C.S. § 688 and unseaworthiness under general maritime law. The ship joined the crewmember as a third party defendant and crewmember counterclaimed against the ship for negligence and unseaworthiness. The electrician did not proceed in his case and his complaint was dismissed. After a trial on crewmember's counterclaim, the jury found the ship had not breached its warranty of seaworthiness, but was negligent. Both parties appealed. On appeal, the court determined competent evidence was erroneously excluded and reversed the case. In particular, the court held Fed R. Evid. 803(22) governed the admissibility of a party's record of conviction. Here, the court erred in refusing to accept a Japanese judgment of conviction against crewmember because the evidence was a final judgment.  Usually if you were not a party at the previous proceeding, the evidence will not be admissible against you as you didn’t have a chance to examine the declarant at the earlier proceeding. (unless a predecessor in interest)  (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.     o Shepard v US-Defendant was convicted of the murder of his wife by poisoning with bichloride of mercury. The trial court admitted evidence of a conversation between the wife, then ill in bed, and her nurse. The wife asked the nurse to bring a bottle of whisky that would be found upon a shelf, and said that this was the liquor she had taken just before collapsing. She asked whether enough was left to make a test for the presence of poison, insisting that the smell and taste were strange, and that her husband had poisoned her. On appeal, the court reversed. Homicide could not be imputed to defendant on the basis of mere suspicions, though they were the suspicions of the dying. To let the declaration in, the inference had to be permissible that there was knowledge or the opportunity for knowledge as to the acts that were declared. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. o See US v Barrett below o Williamson v US-Defendant was convicted of three drug charges. At trial, a witness whose testimony ultimately led to defendant's arrest, refused to testify despite being held in contempt. The Court found that the witness was unavailable and admitted hearsay evidence by a police officer of the witness's statement that included statements incriminating him and defendant, under the exception to the hearsay rule for statements against the interest of the declarant. Defendant's conviction was affirmed on appeal. The Court reversed, holding that the statements against interest of the declarant exception to the hearsay rule did not allow admission of nonself-inculpatory statements, even if they were made within a broader narrative that was generally self-inculpatory. (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) [Other exceptions.][Transferred to Rule 807] (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. o US v Houlihan- Defendants were convicted of various drug, racketeering, and murder offenses in violation of 18 U.S.C.S. §§ 924, 1959, 1962, and 21 U.S.C.S. §§ 846, 848. On review, defendants argued that the district court denied them their right to confrontation, failed to dismiss alternate jurors after deliberations began, and committed various discovery errors. The court held that because defendants were responsible for murdering a witness, they could not object to the admission of the witness's statement on confrontation grounds. The court held that it was error not to discharge the alternate jurors when deliberations began, but that the error did not prejudice defendants. The court held that there was insufficient evidence and reversed the convictions as to one defendant on three related counts. The court vacated the convictions on a conspiracy count as to two defendants and held that they constituted double jeopardy because defendants were convicted of the same conduct in a continuing criminal enterprise count. o FRE 613- Prior Statements of Witnesses o (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. o (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).  US v Barrett- Appellant was convicted of various crimes arising from the theft and sale of a collection of postage stamps taken from a museum. At appellant's trial, the trial court refused to admit the evidence of three defense witnesses who could provide exculpatory testimony. Appellant sought review of his conviction, and the court vacated and remanded for a new trial. One of the witnesses that appellant sought to present would have testified that he had a conversation with a co-conspirator who admitted that he but not appellant was involved in the theft. The co-conspirator who made the statement died prior to appellant's trial. The court agreed with appellant that the testimony could be admissible as a statement against interest pursuant to Fed. R. Evid. 804(b)(3). Where a declarant was unavailable as a witness, a statement made by him that exposed him to criminal liability and offered to exculpate the accused was admissible provided that the statement was proven to be trustworthy by corroborating circumstances. The trial court never inquired into the trustworthiness of the statement before deciding to exclude it from the evidence.  US v Ince- Defendant challenged his conviction for assault with a dangerous weapon, contending that it was reversible error to admit his alleged confession in order to impeach the credibility of a government witness. The court reversed the conviction and remanded the case for a new trial. The court considered three factors in determining whether it was highly probable that the admission of the confession affected the conviction: (1) the centrality of the issue affected by the error; (2) the steps taken to mitigate the effects of the error; and (3) the closeness of the case. The identification of the defendant was the only controverted evidence in the case and it was probable that the jury was unable to follow the district court's instruction on impeachment by prior inconsistent statement or apply it to the testimony, particularly when the prosecutor in closing argument asked the jury to accept the confession as true. Because the tainted evidence was a confession and the first trial ended in a deadlocked jury, the court concluded that the case was sufficiently close that the erroneous admission of defendant's alleged confession was not harmless under Fed. R. Crim. P. 52(a).  If impeachment takes the form of prior inconsistent statement, 403 may make it inadmissible to impeach where its probative value on credibility of the witness is substantially outweighed by the danger that the jury will consider the matter asserted for its truth. The application of 403 to these facts is particularly forceful.  Fletcher v Weir- The inmate was arrested and tried for a stabbing death at a nightclub. The record did not indicate that he had received any Miranda warnings after his arrest. At his trial for intentional murder, the inmate took the stand in his own defense and claimed that he had acted in self-defense. The government cross-examined him as to why he had failed to tell that to the arresting officers. The inmate was convicted. He filed a petition for a writ of habeas corpus after his conviction was affirmed by the state supreme court. The district court granted his writ, which the appellate court affirmed, concluding that the inmate was denied due process of law when the prosecutor used his postarrest silence for impeachment purposes. On certiorari, the Court held that, in the absence of Miranda warnings, it was not a violation of due process to allow the government to cross-examine the inmate on his post-arrest silence when he chose to take the stand. In reversing, the Court concluded that a state was entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence impeached a criminal defendant's own testimony.  This case is based on the relevance theory that inconsistency between the silence (seen as a past “statement”) and the testimony makes the witness’s direct testimony slightly less credible. For this purpose, evidence of the past statement is not hearsay bc the theory of relevance does not require the prior statement to be true. There should be jury instructions limiting consideration for the assertion as true.  An “I don’t remember now” answer of a witness is only inconsistent with a previous statement of the witness giving a detailed account where there is good evidence that the loss of memory is feigned.  REMEMBER: In FL case law, silence of the accused when confronted with law enforcement preceding arrest is inadmissible against them, bc it is protected by the FL privilege against self-incrimination. o FRE 612- Writing Used to Refresh Memory o Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either- (1) while testifying, or  (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,  an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. o