Law School Outline- FSU College of Law- Mitchel

I. Relevance: Logical and Policy Based Relevance a. This is the starting point; It is always the threshold question! i. Spend at least one sentence saying why the evidence is relevant in the case 1. Ask: What is the purpose of the evidence? a. Material: evidence must relate to issue or fact that is of consequence in the case. i. What issue is the evidence offered to prove? b. Probative: Probative evidence embraces the test of materiality and something more; Probative evidence contributes to proving or disproving a material issue. i. Does the evidence tend to prove a material issue? b. 2 categories i. Logical Relevance (in Federal Rule 401) 1. Standard of Admissibility - Logically relevant IF the evidence has 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. a. Worry about relevance when the evidence concerns some other time, person, or event involved in the litigation itself. i. General Rule: Evidence must relate to time, event, or person in controversy. 1. E.g.: It may be too remote to be relevant ii. Exceptions to the worry/warning above: 8 situations where evidence is admissible despite above worries; these 8 fall under the rubric of similar occurrences 1. Complicated issues of causation – Complicated issues of causation may often be established by evidence that concerns other times, events, or persons. a. E.g.: person gets sick after eating at fast food place and sees another person in the hospital that has same symptoms and they got sick; can you admit that as evidence? YES, even though it involves other people, it is admissible for cause and effect. 2. Prior accidents or claims NOT admissible Except (1) to show common plan or scheme or fraud (2) When relevant to the issue of damages to the P (3) admit evidence of prior accidents to show that the person/entity had notice of the hazard. a. 2 dimensions that the above exceptions fall: (1) P want to use other times offensive instrumentality 1 3. 4. 5. 6. was used. (2) D wants to use time when P was involved in accident. Where intent or state of mind is an issue a. General Rule: Similar conduct previously committed by a party may be introduced to prove the party’s motive or intent WHEN such elements are relevant. To rebut the claim or defense of impossibility a. Note: Usually Opponent “opens door” Comparable sales to establish value a. Providing the other chattel or parcels were of the same or general description as yours b. The sale took place at about same time period c. The sales took place in about same place Habit evidence a. RULE 406: May ADMITT habit evidence to show person acted in conformity with his habit. b. Habit describes one’s regular response to a specific set of circumstances. c. Habit evidence (1) must be specific detailed conduct (NOT generalized) AND (2) must have recurrence – it must occur often enough to be habitual i. Judge has discretion to decide what enough time to be habitual is. Thus, on EXAM just mention that. d. Character/Disposition: describes one’s disposition in respect to general traits. i. Character/disposition evidence is NOT admissible ii. Prior act evidence evidence the person acted in certain way on prior occasion is NOT admissible to show 2 they acted same way at time of litigated event. 7. Industrial or business routine a. Just like habit evidence for business entities. b. General Rule - The normal routine of the business will be admitted to infer that the company acted in conformity with business routine 8. Industrial custom as evidence of the industry’s standard of care ii. Discretionary/pragmatic/policy based Relevance 1. Rule 403: A trail judge has broad discretion to exclude logically relevant evidence 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. 2. Standard of admissibility: IF its probative value is substantially outweighed by auxiliary considerations (there are 6 auxiliary consideration) i. Danger of unfair prejudice ii. Confusion of issue in mind of jury iii. Misleading the jury iv. Undue delay v. Waste of time vi. Cumulative evidence b. Note: Rule 403 has applicability in almost any place so mention it in almost every EXAM question 3. Situations where the specific conduct might have logical evidence but is NOT admissible for policy considerations a. Liability Insurance i. General Rule: Evidence of liability insurance is NOT admissible to show fault (negligence or otherwise acted wrongfully), or ability to pay. Also, CANNOT admit lack of insurance as inability to pay. ii. 2 EXCEPTIONS to the rule of inadmissibility of liability insurance: 1. To prove ownership and control when ownership and control is disputed 2. For Purposes of Impeachment: Where it is relevant to impeach the credibility of the witness to show interest or bias or motive a. Usually on the EXAM the question will make it seem evidence is NOT 3 relevant BUT you must find if the witness has stake in case and thus has motive - if find this then the evidence is admissible. So LOOK FOR THIS ON EXAM! So look to impeach the witness because they have a motive (because has stake in case) or bias toward the case b. Subsequent Remedial Measure i. General Rule: Subsequent remedial measures are NOT admissible to show negligence or culpable conduct. 1. Policy: Extrinsic policy says we want to encourage D to make repairs after an accident. If we admit the evidence, D will be dissuaded to make the changes or fix things ii. Exceptions: 1. (1) to show ownership and control when the ownership or control is at issue/disputed; 2. (2) To rebut claim that Precaution was NOT feasible (to rebut or impeach feasibility): Evidence of repairs or other precautionary measures made after an accident is admissible to establish feasibility of precautionary measures when such feasibility is disputed--usually to show infeasibility of situation when feasibility is in dispute. a. E.g. bank made of glass and when sun shines the window is invisible and customers run into it and sues; Bank manager says there is no way to avoid the accident. You the P say that before the accident there were other customer accidents and after the injury to the P there is no more accidents, the D says he changed the glass doors. You ask if it was feasible to make changes earlier. THUS, the evidence is admissible because feasibility is disputed iii. General Rule: Subsequent remedial measure are NOT admissible to show negligence or culpable conduct. 1. What about to show strict liability? The Federal Rules say as a general rule to show 4 negligence, defect in product, defect in design, need for warning or instruction, or culpable conduct, or any of the forms of strict liability. BUT the exceptions mentioned above still apply. c. Settlements i. General Rule: Settlements are NOT admissible as any kind of indication of fault, liability or damages. 1. Rule: Offer to settle claim is NOT admissible to prove liability for or invalidity of a claim that is disputed as to validity or amount. 2. Any admissions made during the course of trying to reach a compromise are NOT admissible. a. Limitations on the Rule: i. (1) there must be a claim (there does NOT have to be actual litigation; RATHER the facts have to be mature enough to identify the P); ii. (2) liability and amount must be in dispute to get the protection of the rule – IF NO dispute THEN evidence you admitted liability or the amount is admissible; iii. (3) Offer to pay hospital or medical expenses are NOT admissible. EXCEPTION admission of fact made while making the offer to pay for hospital expenses is admissible (e.g. if you say it is your fault then that is admissible) ii. RULE 410: In criminal cases the offer to cut a plea, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, or evidence of statements made during negotiating such pleas is NOT admissible. c. Character Evidence (broken down into 2 categories: (1) character evidence in civil cases and (2) character evidence in criminal cases) i. We are dealing with use of character as substantive evidence to prove fact in the case ii. Keep in mind these 4 preliminary considerations/questions to ask: 5 1. (1) What purpose do you seek to use the character? a. 3 purposes i. (1) To prove character of a party when character of the party itself is a material issue in the case 1. When a person’s character itself is the ultimate issue in a case, character evidence MUST be admitted. a. Mostly in civil cases, yet it rarely occurs ii. (2) Character as circumstantial evidence to infer conduct at time of event (To serve as circumstantial evidence of how a person probably acted) 1. Never can be proved in civil cases iii. (3) Character to impeach the credibility of a witness 2. (2) What method/technique can you use to prove character? a. 3 possibilities i. Specific acts of conduct 1. Permitted only in a few instances, such as where character itself is a material issue. ii. Opinion testimony iii. Reputation evidence 1. Testimony regarding general reputation in the community is the most common means of showing character. 3. (3) What kind of case is it – civil or criminal? 4. (4) Character for what trait (e.g. violence)? iii. Character Evidence in Civil Cases 1. Rule: NO character evidence in civil cases – more specifically, NO character evidence as circumstantial evidence to infer conduct at time of the litigated event (that is, no purpose #2) a. Exception: IF character of a party is a material issue in the case, then character evidence is admissible. This situation is rare but there are 3 examples: i. Defamation case where truth is a defense ii. Negligent entrustment 1. E.g. the P sues a company because the company was negligent in hiring the town drunk – thus need to show town drunk character iii. Wrongful death case 1. E.g. P want to recover for loss of companionship, thus need to prove the character of her dead husband and the character is admissible because it is a direct issue in the case. 6 b. Specific acts of conduct, opinion testimony, and reputation evidence may be used to prove the character of a party when character is a material issue in the case (the situation where the exception applies). iv. Character Evidence in Criminal Cases 1. In this area, character is rarely a material issue. Thus, we are dealing with purpose #2 listed above. a. Hypo: D is charged with assault on woman. D, at his trial, looks clean cut and a nice guy but the prosecutor has D’s rap-sheet for prior assaults and perjury. Can the prosecution admit the evidence in about the prior convictions? b. RULE: NO bad circumstantial character evidence in any form can be admitted at initiative of the prosecution UNLESS and UNTIL the D takes the initiative to use circumstantial character evidence to infer his innocence in the case. i. How does D prove character? Reputation and Personal Opinion Testimony: A D puts her character in issue by calling a qualified witness to testify (which can be based on personal knowledge) to the D’s good reputation (or that the witness has heard nothing bad) for the trait involved in the case. Under RULE 405, the witness may also give his personal opinion concerning the trait of the D. HOWEVER, the witness may NOT testify to specific acts of conduct of the D to prove the trait in issue. 1. How does the prosecutor respond? There are 2 responses: (1) Prosecutor may respond by cross-examining the D’s own good character witness by inquiring into any specific acts that would tarnish the reputation of the D or affect the witness’s opinion - NOTE the prosecutor can only do these things on Cross-examination; (2) Prosecutor can call his own bad reputation witness (someone to testify that D has a bad reputation). ii. 2nd Exception: IF victim’s character is relevant to a defense by the D, THEN the D can take the initiative and admit bad character evidence-reputation or opinion evidence--of Victim to prove the defense. This does NOT apply to rape cases 7 1. E.g.: D charged with murder and pleads self-defense. So D can bring witness to testify about violent nature of the deceased. a. Prosecution can rebut. i. RULE 404(a): One the D has introduced evidence of a bad character trait, the Prosecution may counter with reputation or opinion evidence of (1) the victim’s good character; OR (2) the D’s bad character for the same trait. 2. E.g.2: H is charged with V’s death. D claims that V attacked him with broken beer bottle and D claims in self defense he shot V. a. At D’s murder trial he calls witness to testify that V had violent reputation in community Admissible b. Prosecutor wants to bring in witness to testify that V has peaceful character – Admissible c. Prosecutor wants to call witness to say D has a bad reputation – Admissible because D opened door by attacking character of V d. D calls witness to testify that D had been in 3 prior brawls – NOT admissible because it is a specific act and cannot admit specific act evidence e. Same as above but want to admitted testimony of D’s state of mind that he knew that V was told V was violent – Admissible because it was communicated to the D and thus admissible to show state of mind 2. Rape Shield Law a. RULE 412(a): In any Civil or Criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior OR sexual disposition of the Victim is generally NOT admissible. i. 3 ECEPTIONS where sexual reputation of Victim is admissible: 8 1. (1) 3rd party was the source of the semen, injury, or other physical evidence; 2. (2) Can show prior acts of consensual sex of the D and the Victim to prove consent in this case 3. (3) IF the constitutional rights of the D require admission of the sexual conduct of Victim. a. The 3 exceptions REQUIRE: (1) notice to the party (2) an in camera proceeding (3) and judge must find that it is not overly prejudice. 3. Recap to show clarity of the General Rule: IF there is some prior act of the D that is relevant for some other reasons than to show the criminal disposition (propensity) of the D THEN it is admissible. i. The evidence is NOT admissible WHEN offered to show criminal disposition BUT can be used/admitted to show other things. Always ask Why the prior crime/act is being admitted! If for some other independent issue in the case then it is likely admissible. b. Admissible IF Independently Relevant (MIMIC Rule): Evidence of other crimes or misconduct is admissible IF these acts are relevant to some issue other than the D’s character or disposition to commit the crime charged. Rule also applies in Civil cases. i. To show Motive ii. Intent or state of Mind where the intent or state of mind is an issue in the case. iii. Where Identity is the issue 1. Specific aspect of Identity Evidence: Modus Operhendi (M.O.) evidence – situation where the D is charged with crime that is distinctive and unusual in nature. a. RULE the Prosecutor can admit evidence that shows the D did the crime before in the same distinctive and unusual way. For this to apply there MUST be the same distinctive element in the crime charged and the prior crime. iv. Common scheme or plan c. With regard to the MIMIC rule, Remember that Rule 403 still applies here. So even though some particular act would be able to show motive, the trial judge still has discretion in 9 II. extraordinary cases where the probative value is substantially outweighed by the prejudice, waste of time, etc. 4. Prior Acts of Sexual Assault or Child Molestation a. RECALL THE GERNAL RULE: NO bad circumstantial character evidence in any form can be admitted at initiative of the prosecution UNLESS and UNTIL the D takes the initiative to use circumstantial character evidence to infer his innocence in the case. EXCEPTION – Evidence of a D’s prior acts of sexual assault or child molestation is ADMISSABLE in a Civil or Criminal case where the D is accused of committing an act of sexual assault or child molestation. i. Note (1) the D does NOT need to open a door; P can admit the evidence in its case in chief; (2) this is disposition evidence; (3) note it says prior acts, there need NOT be a prior conviction NOR prior charge for the acts. Documentary Evidence i. Note: Implicates hearsay doctrine, authentication, and best evidence rule. Thus the EXAM will probably have these 3 things together b. Authentication i. General Rule: A writing is NOT admissible UNLESS it has been authenticated. 1. Proof must be given to show that the writing is what it purports to be. ii. General Rule: Writings are NOT self authenticating. There MUST be testimonial sponsorship. 1. Exceptions (These are Self-Authenticating under RULE 902): a. Certified copies of businesses or public records are selfauthenticating b. Official publications purporting on their face to be from a public authority are self-authenticating c. Newspapers and periodicals are self-authenticating d. Trade inscriptions or labels e. Acknowledged documents – e.g. where a person signs the document twice and the last time he asserts that he signed it and it is valid/genuine f. Signatures on commercial paper according to commercial law iii. Authenticate a writing or a document through direct (D testifies it is his) or circumstantial evidence (e.g.: others say D signed the document) iv. Prove handwriting in 3 ways: 1. Lay witness a. A lay witness who has personal knowledge (familiar with signature/handwriting) of the handwriting of the supposed 10 writer may state his opinion as to whether it is the person’s handwriting. i. Lay witness CANNOT compare between the disputed signature and genuine signature and cannot become familiar with the signature just for the sole purpose of testimony. 2. Expert testimony a. Expert may compare disputed signature/handwriting with verified genuine signature/handwriting 3. Jury comparison a. Jury makes the comparison between the disputed signature/handwriting and the genuine signature/handwriting – acts like handwriting expert. v. Authenticate documents by: 1. Ancient Document Rule: IF a writing is a. (1) 20 or more years old b. (2) regular on its face and c. (3) found in a place of natural custody (where such writing, if authentic, would be kept), THEN it is prima facie authentic and thus admissible 2. Solicit/Reply Doctrine: the writing comes in reply to another document – e.g.: offeror sends offer and he gets acceptance back, thus we assume signature on the acceptance is genuine or the acceptance itself is genuine. vi. Quantum of evidence necessary to authenticate a writing: 1. Sufficient evidence so that a reasonable jury could find that it is genuine/authentic. vii. Photographs 1. Admitting a photo into evidence – proper foundation requires that a witness look at the photo and state that the photo is an accurate presentation of the things that are in it. a. Generally authenticating a photo is very easy 2. Admitting photo into evidence Where there is NO such witness who can verify the accuracy of the picture. E.g.: surveillance camera captures D burglarizing a store. The Picture speaks for itself. a. To get it in the prosecution must lay foundation that includes the camera operates properly, that it was on at the time, and how the film was handled after that. c. Best Evidence Rule i. General Rule: (1) applies ONLY to writings (liberally defined to include films photo, recordings, and x-rays) AND (2) expresses a preference for the original. 1. Rule applies when trying to prove the content of the writing 2. If have reasonable excuse for not having original then the writing can be admitted with testimony to prove the content of the writing. 11 ii. 2 situations when the BER applies: 1. The writing itself creates or destroys a legal relationship that is at issue in the case a. E.g.: deed, contract, will, or divorce decree. 2. Where witness’ sole knowledge comes from a writing. That is, the witness lacks personal knowledge BUT they say they have personal knowledge because they read it somewhat and want to testify about it. This is the most common situation! a. E.g.: police offer takes stand and wants to testify that he found D with letter and he wants to testify to contents of the letter. i. Objection 1 – authentication: The letter is relevant to show the motive of D and thus the relevance does NOT depend on authentications. We only want to know if D had it and D read it. Thus authentication objection will be overruled ii. Objection 2 – hearsay: does NOT apply hear because the letter is offered ONLY to show the effect on D and thus it gave him motive for crime. Objection overruled iii. Objection 3 – NOT best evidence: We want the letter and not have the police testify about the content. IF he has no good excuse for not having the original then objections sustained BUT if have good excuse then police offer can testify to his recollection of the contents of the letter. 1. These 3 objections should be raised on EXAM if question deals with a writing – So ask (1) is it authentic (2) if it is a copy or there is oral evidence of the documents testimony, then object under BER and (3) Hearsay – ask if it is being offered to prove truth of the matter asserted – then see if it fits into a hearsay exception. iii. 2 situations when the BER does NOT apply 1. (1) When the fact to be proved has an existence independent of the writing. a. This is the situation where you want to prove a fact and have witness with personal knowledge of that fact and it is described in the writing. Do NOT have to produce the writing because the witness can testify to the fact. i. E.g.: Issue – Did D make payment? Witness says she saw D pay 10k and gets receipt. Objection under BER because wasn’t the receipt. NO, overruled because want to prove the fact of payment NOT that the writing/receipt exists. 12 III. 2. (2) Collateral Document Exception – BER does NOT apply to minor (collateral) writings involved in the controversy. iv. Modifications to the BER – situation where the original is NOT needed BUT you must produce something similar: 1. Public records: you get copy, not the original 2. Summaries of Voluminous Documents/records: when the original documents are so voluminous that they cannot be examined in court, then the person may prove the contents through a chart or a summary or a calculation PROVIDED THAT (1) the voluminous original material would be admissible in themselves AND (2) those voluminous originals must be accessible by the opponent 3. Rule: Duplicates is Admissible - a duplicate is a counterpart which is produced by some technique that accurately reproduces the original and avoids causal errors (thus, all duplicates apply EXCEPT for handwritten copies) - UNLESS (1) a genuine question is raised about the authenticity of the original OR (2) it would be unfair to admit the duplicate (e.g. when opponent offers copy of 2 sentences of a 200 page contract and they are out of content, then the judge would want the entire K) Witnesses -- Deals with Testimonial Evidence a. (1) Competency of the Witness: witness generally presumed to be competent. BUT, the witness must have the 4 basic testimonial attributes to some degree. i. Basic testimonial qualifications that makes witness competent 1. Perception – witness must observe something 2. Memory – the witness must remember some of something observed 3. Communication – must be able to communicate what was observed 4. Sincerity – witness must demonstrate the appreciation of obligation to tell truth (done through the oath) ii. These are boiled down into 2 real requirements under the Federal Rules 1. RULE 602: The witness must have personal knowledge of the matter he is to testify about; AND 2. RULE 603: The witness must declare he will testify truthfully by oath or affirmation b. (2) Form of Examination of Witnesses - Largely a mater of judicial discretion. i. General Rule: leading questions are generally objectionable. Rationale: the witness, and not the lawyer, should testify. There must be interrogative questions (NOT a leading question which suggest answer to the witness BUT in certain situations you can ask leading questions) 1. Leading questions permitted when: a. Made during Cross Examination b. Asking the witness about preliminary questions dealing with preliminary, non-crucial testimony c. The witness needs aid to respond because they are forgetful, old/frail, a child, etc. 13 d. The witness is under the control of the adverse party, hostile and improperly uncooperative, or an adverse party. ii. When can a witness use a writing in aid of oral testimony? 1. Basic Proposition: Witness is NOT supposed to read testimony from a writing in court because it is hearsay. The Witness must testify from their own contemporaneous recollection of the event. 2. EXCEPTION: 2 situations where witness may use a writing in aid of oral testimony: a. Present Recollection Revived - Refreshing Recollection i. RULE: ANY writing can be used to refresh the recollection of the witness. 1. To use the refreshing recollection the witness has to say she cannot remember ii. RULE: Anything you use to refresh the recollection of witness can be seen by opposing counsel, can be used on cross examination, AND only the opposing counsel can admit it into evidence so jury can see what you used. iii. E.g.: witness on stand has gone deaf with fright and you have a writing. Does the writing have to be reliable? NO because writing is NOT being offered as evidence, rather it is just hear to give the witness a refresher and she will testify after her recollection is revised. b. Past Recollection Recorded - Recorded Recollection (it is listed as an exception to the hearsay rule) i. Where a witness states that she has insufficient recollection of an event to enable her to testify dully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence IF a proper foundation is laid for its admissibility. This use of a memorandum as evidence of a past recollection is frequently classified as an exception to the hearsay rule. The foundation for receipt of the writing into evidence MUST include proof that (5 parts to properly lay foundation: 1. The witness at one time had personal knowledge of the facts recited in the writing; 2. The writing was made by the witness OR made under her direction OR that it was adopted by the witness; 3. The writing was timely made when the matter was fresh in the mind of the witness; 14 4. The writing is accurate (that is, witness must vouch for the accuracy of the writing); AND 5. The witness has insufficient recollection to testify fully and accurately. c. (3) Opinion and Expert Testimony i. Opinion Testimony comes in 2 parts depending on the nature of the witness 1. Lay witness a. Lay opinion is admissible provided (1) the opinion is rationally based on perception of the witness AND (2) the opinion is helpful to the trier of fact. i. With regard to the first element: Rationally based on the perception of the witness means that the witness has personal knowledge and he is offering his opinion ii. With regard to second element: it is possible to meet element one BUT NOT element 2. For example if the witness says the person was negligent and deserves to lose lawsuit would violate the second element 2. Expert Witness a. Can give an opinion NOT based on perception b. Can give an opinion on the expert’s field of study c. 4 basic requirements for expert testimony i. The subject matter must be appropriate for expert testimony 1. Key word is assistance or helpfulness; that is the opinion must be relevant enough to help the trier of fact. 2. 2 requirements of the expert to give opinion: a. (1) Reliability – the methodology underlying the expert’s testimony must be reliable i. Preponderance of the evidence is the standard used to determine reliability b. (2) The expert opinion must be relevant – the opinion must fit the facts of the case. 3. Daubert 5 factors used to consider the reliability of scientific evidence (they are NOT exclusive) 15 a. Is the theory or technique testable AND has it been testable (Prof. says this is an important factor). i. If the evidence is on a kind that cannot be tested or has not been tested then it argues against reliability b. Has the theory or technique been subjected to peer review or publication? i. If not, it cuts against the reliability of the evidence. c. If the evidence concerns a particular known scientific technique, what is the error rate? The higher the error rate then the less reliable. If there has been NO attempt to find the error rate, then it cuts against reliability d. Are there standards that control a techniques operation AND were they applied in this case? If not then it cuts against reliability (admissibility) e. The Frye factor: Whether or not the theory or technique has gained general or widespread acceptance in the particular field BUT should NOT be the only factor considered. i. S. Ct. in Daubert stressed: the Judge should focus on the methods and principles and NOT the conclusions. The evidence must fit the case. ii. Witness must be qualified as an expert 1. The qualifications need NOT be formal or academic. Can be an expert based solely on your experience. iii. Expert must possess reasonable certainty or probability regarding the opinion 1. This means that the opinion should be elicited in a way to alert judge to the fact that it is more than just mere guess work. iv. The opinion must be supported by a proper factual basis. 1. Upon what kinds of case specific facts can the opinion be based? 2. 3 acceptable bases for expert testimony: 16 a. Facts within the personal knowledge of the expert. b. Facts which are supplied to the expert in court by the evidence. i. Usually happens through a hypothetical question. In the hypothetical question you give the expert the facts and then he can give an opinion. All the facts given thru the hypothetical question must be facts that are in the evidence c. Facts NOT in evidence that were supplied to the expert out of court, and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. i. Thus, expert can base opinion on hearsay so long as they are facts that expert rely on in making professional decisions outside of court. d. Learned text or treatise or authoritative article i. The major problem here is with hearsay. ii. RULE: can use the content of the treatise/text/article to impeach or rebut the opponent’s expert. 1. Must establish it is a learned text or treatise in 1 of 4 ways: a. If the opponent’s expert actually relied on that specific text or treatise b. Elicit an admission under cross examination i. This is the usual way to establish that the text is a learned treatise or text. c. You may call your own expert witness and that witness can say that the text is authoritative or reliable d. Judicial notice: if the text is so well known it is in all the libraries in its field, give the judge notice of this and he will say if it is authoritative. 2. 2 limitations: 17 a. MUST have an expert on the stand. That is, the material must be filtered through an expert witness on the stand b. The relevant portion is read into evidence but is NOT received as an exhibit. The actual text or treatise does NOT go to the jury. iii. Federal Rules say do NOT have to wait till the exert takes the stand 1. In other words you can call your own expert and he can say that the book is authoritative and reliable and then can read from the portion of the book. The contents is admissible for the truth of the matter d. (4) Credibility and Impeachment of Witnesses i. Credibility can be attacked at 2 stages 1. Cross examination a. 3 things to remember i. Absolute right to cross-examination any witness who testifies against you ii. Cross examination is limited to the scope of the direct examination 1. Can cross examine on any issues that were raised or impliedly raised in the direct examination iii. Collateral Matters Doctrine: the issue is how far can you go to contradict a witness – sometimes called impeachment by contradiction. It is essentially an application of rule 403 1. RULE: the cross examiner is bound by the answers he gets from a witness as to collateral mattes. That is NO extrinsic evidence is allowed to contradict the witness on collateral matters. a. Collateral Matter: is a matter that is relevant only to show the contradiction. In other words, its only relevance is to contradict the witness. 2. Extrinsic evidence: Anything other than cross examination. ii. Credibility and Impeachment 1. Credibility a. Here the focus (issue) is on the witness’s credibility. b. Accrediting and Bolstering 18 i. General Rule: NO bolstering of a witness’ credibility UNTIL the witness is impeached. 1. CANNOT use prior consistent statement to bolster the witness’s credibility UNLESS and UNTIL there has been an impeachment attack. ii. EXCEPTION: Prior Identification 1. Evidence of any prior statement of identification made by a witness is admissible to bolster the witness’ testimony AND also as substantive evidence that the identification was correct. a. Prior statements of identification made by a witness can come in for its truth (no hearsay problem) and others can testify to it. b. Does NOT have to be a prior consistent statement of identification. 2. Impeachment a. 5 Impeachment Techniques i. Use of prior inconsistent statements 1. MAY use a statement made by the witness on a prior occasion which is inconsistent with a material portion of the witnesses incourt testimony 2. Can use extrinsic evidence when dealing with prior inconsistent statements a. The target witness must have the opportunity to explain or deny the making of the inconsistent statement. 3. NOTE: the prior inconsistent statement does NOT come in for its truth; prior inconsistent statement ONLY comes in to impeach. a. Exception: IF it is prior inconsistent statement given under oath AND it was part of a formal trial, hearing, proceeding, or deposition, THEN the statement is admissible for impeachment and for its truth. 4. Prior inconsistent statement by a party always comes in for its truth. This is because it is an admission and thus it comes 19 in for its truth. Also, there need NO foundation for the admission. ii. Showing of interest, bias or motive 1. May be proved by extrinsic evidence AFTER you lay the foundation and give the witness opportunity to explain the bias, interest or motive. 2. NOTE: do not overlook this impeachment technique. You do NOT need to prove the witness is lying to use this technique. 3. This is the impeachment technique that is a vehicle for getting in evidence that is usually inadmissible. iii. Prior conviction of crime 1. Allow witness to be impeached by showing witness was convicted of a crime. Conviction for what type of crime? 3 parts under the federal rules: a. (1) Crime Involving Dishonesty: Any crime involving dishonesty or false statement. Federal Rule 403 does NOT apply here – that is the judge cannot say that there is no impeachment because of prejudice by cross on the convictions. RATHER impeachment is automatic. What kind of crimes are dishonesty? NOT robbery; NOT larceny. Rather, focus on deceit – larceny by trick, fraud, etc. b. (2) Felony NOT involving Dishonesty: Crimes punishable by more than one year in prison c. The convictions CANNOT be too remote. The general guideline is 10 years from the date of release from prison or the date of conviction. This 10 year guideline applies to crimes of deceit or false statement. i. Must have a certificate of conviction – thus can use extrinsic evidence. Also do NOT need to lay foundation. iv. Specific acts of deceit or lies which may be inquired into on cross examination 20 1. NOTE: we are talking about specific acts that did NOT result in a conviction. 2. Do this by simply asking the witness if they did it. Must have a reasonable basis for asking the question; a. Requirements: Question must be asked in good faith, and you must have a reasonable belief the act was done by the witness, and it has to be an act of deceit or lying. 3. NO extrinsic evidence is allowed (this is the only one where it applies). You must take the answer of the witness v. Bad reputation or opinion for truth or veracity 1. Extrinsic evidence may be allowed because it is the only way it can be done (e.g. the town mouth comes to the stand and tells the target witness is not to be believed). 3. Rehabilitating the witnesses’ credibility a. When can you show good reputation or truth or veracity for your witness? ONLY when there was a direct character attack on your witness (so attacked because of prior conviction of a crime, specific acts of deceit or lies, and bad reputation or opinion for truth or veracity) b. RULE: Prior consistent statement may be used to rehabilitate the witness credibility ONLY to rebut a charge of recent fabrication or improper influence or motive. i. Note that it has to be a pre-motive statement (that is it is before opportunity to fabricate or form motive) ii. Also, the statement comes in for its truth of the matter (it is excepted from hearsay) IV. Privilege a. Rules are based on the policy to protect other societal interests other than truth seeking. b. 3 major privileges i. Attorney-Client Privilege 1. Confidential communications between the attorney and client made during professional legal consultation are privileged from disclosure UNLESS waived by the client or by the representative of the deceased client (this tells us the privilege survives the death of the client). 2. 4 Elements: a. Must have an attorney and a client i. Privilege extends to clerks, summer clerks, paralegals, secretaries, and any necessary mediary 21 ii. As long as you reasonably believe that you are talking to a licensed lawyer, then the communication is protected iii. What if the client is a corporation? S. Ct. has enunciated this test in Upjohn - Factors to be considered; it is a balancing test: 1. Did the employee communicate with legal council with purposes of helping company to secure legal advice and did the employee know that was the purpose (if this one applies you have very good chance that it is covered) IF so, then the communication is protected. 2. Did the employee talk to superiors about it (check this one-make sure it is correct)? IF so, then the communication is protected. 3. Did the communication concern a matter within the scope of the employee’s duties? IF so, covered by the privilege 4. Were the communications considered confidential when made? IF so, then protected. iv. The BoD or its equivalent has the power in deciding whether to assert the privilege. IF there is a dispute between BoD and the managers then the BoD wins. b. Must have confidential communications (includes oral, written and non-verbal communications) i. A communication is confidential IF it was intended to remain between the client and the lawyer and was NOT meant for disclosure to 3rd parties. ii. NO privilege for pre-existing documents OR physical evidence/objects iii. Distinction: the privilege ONLY protects the specific communications between the lawyer and the client; it does NOT protect the underlying facts. iv. Very rarely will identity of the client and the fee arrangements be covered by the privilege. v. Disclosure of confidential information waives the privilege and inadvertent disclosure will waive the confidentiality element. vi. Note: Communications in a jail cell when others are nearby have been held NOT to be sufficiently confidential to be protected. c. Professional legal consultation 22 i. All that is necessary is the client is seeking processional legal advise, NO need for formal agreement or payment. ii. MUST be an intent on part of client to establish a professional legal relationship whether it is successful or not 1. Retainer negotiations are covered by the privilege. iii. Predominately legal advice must be given d. May be asserted either by the client or by the lawyer on the client’s behalf. i. You have authority as a lawyer to assert the privilege and a duty in moist States to assert the privilege for the client UNTIL the client tells you to do so or NOT do so. So the privilege can be asserted without any guidance from the client until he tells you what to do. 3. Exceptions to the A-T privilege a. NO privilege for legal services that were obtained to aid in planning or commission of a crime or fraud or intentional torts. b. NO privilege with regard to attorney’s comments on a will when the will is in dispute. So attorney can take the stand and relate what the term means c. NO privilege when there is a dispute between the client and attorney – e.g. malpractice case and in fee disputes there are no A-T privilege. ii. Physician/Psychiatrist-Patient Privilege 1. The patient has a privilege against the disclosure of confidential information acquired by a doctor while in a professional relationship entered into for purpose of retaining treatment a. Need the physician and the patient who can waive the privilege b. The patient MUST be seeking treatment. i. E.g.: Court ordered doctor visit – NO privilege c. Information must be confidential and it must be useful to treatment 2. When does it apply a. Very seldom. This is because of the Exception: i. Does NOT apply in personal injury cases or any case where the patient puts physical or mental condition at issue. iii. Spousal privilege 1. 2 spousal privileges: a. Spousal immunity privilege: This protects one spouse form being forced to testify at all against the other spouse 23 about anything in a criminal case. One spouse cannot be forced to give adverse testimony against the other in a criminal case. 1. NOTE it does NOT say anything about a confidential communication 2. Does NOT apply to matters before marriage 3. NOTE this privilege belongs to the witness spouse (the one who testifies). Also, if the spouse wants to testify, then the other cannot prevent it. ii. What is required for the privilege: 1. A valid marriage at the time of trial 2. Protects against ALL testimony 3. The holder of the privilege is the witness spouse and NOT the party spouse 4. Applies ONLY in criminal cases iii. EXCEPTIONS 1. Does NOT apply to crimes jointly committed between husband and wife or committed by both the husband and the wife. 2. Does NOT apply where the crime D accused of pimping and pandering. 3. Does NOT apply to crimes involving alien souses. b. Confidential marriage communications privilege: protects against ONLY confidential communications made during the marriage and it applies in civil and criminal cases i. A husband or wife shall not be required, or without consent of other shall not be allowed, to disclose confidential communication made by one to the other during the marriage. ii. Requirements of the Privilege (which are difference between the 2 types): 1. Witness must be married at the time of the protected communication (Do NOT need to be married at the time of trial) a. Privilege outlasts the marriage. 2. Applies to confidences and NOT to testimony. 3. The holder of the privilege is either spouse, NOT just the witness spouse. a. BOTH spouses must agree for the privilege to be waived 24 V. 4. Applies in civil and criminal cases iii. EXCEPTIONS 1. Dose NOT cover communication done in furtherance of crime 2. Dose NOT cover communication made during husband and wife committing a crime 3. Cannot be invoked in commitments proceedings 4. Typically doses not apply in child or spousal abuse cases. 2. Neither privilege applies to disputes within the family (intra family cases): e.g.: domestic assault, incest, child abuse, etc. there is NO privilege. c. 3 EXCEPTIONS that apply to the 3 privileges: i. Future crime or fraud: NO privilege can be used to facilitate future crime or fraud ii. At Issue Exception: NO privilege if the client or patient out the client or communication affirmatively at issue in the case. iii. Privilege waived when there is a dispute between the parties (A-T PRIVLEGE) as to the privilege 1. E.g. suit for malpractice against attorney 2. THIS ONLY APPLIES TO THE A-T PRIVLEGE: Joint client exception: if 2 or more parties communication to a lawyer about a matter of common interest than there is NO privilege between the joint consultation. Hearsay a. 2 common situations of hearsay and the actors involved: (1) Declarant makes the out of court statement and the witness hears it and wants to report it in court; OR (2) the declarant’s writing is presented in court. b. HEARSAY- 2 PARTS i. (1) Definition – is it hearsay? 1. Definition of hearsay: an out of court statement offered for the purpose of establishing the truth of the matter asserted (contained in the statement). a. “Statement” i. “Statement” is an oral or written assertion, OR non-verbal conduct intended as an assertion. 1. Note that IF the statement is NOT an assertion, THEN it is NOT hearsay. ii. To be an “Assertion”, a statement must make some claim that a fact or circumstance exists AND the speaker must intend to make that claim. 1. The key is to look for some factual claim that the speaker intends to convey. b. Ask 3 questions i. Is it an out of court statement 25 ii. Note precisely what the out of court statement is (put quotes around it) iii. Look at what you just noted and ask if it is being offered to establish the truth of what is quoted. 1. If the 3 apply then it is hearsay. 2. Rationale for the Hearsay Rule: Exclude hearsay because it denies the opponent the opportunity to cross-examine the one whose perception, memory and sincerity is really at issue. a. One situation where this rationale may mislead you – where the witness and the declarant are the same person i. E.g.: The Witness wants to testify to their own prior statement. ii. Rule: it is hearsay UNLESS it fits one of the exceptions; that is, a witnesses own prior statements could be hearsay. 3. Statements that are excluded form definition of hearsay: a. Prior Statements by Witness: Certain statements by a person who testifies at the trial or hearing, and is subject to cross-examination about the statements, are NOT hearsay. i. Prior Inconsistent Statements 1. A witness’s prior inconsistent statement is NOT hearsay IF it was made under oath at a prior proceeding or deposition. ii. Prior Consistent Statement 1. A prior consistent statement, regardless of whether made under oath, is NOT hearsay IF it is offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive. iii. Prior Statement of Identification 1. A witness’s prior statement identifying a person after perceiving him is NOT hearsay. b. Statements/Admissions by Party Opponent i. Any statement made by an opposing party can be used against the other party, regardless of whether the statement is against the interests of the opposing party. 1. Opposing Party’s own words are NOT hearsay. 2. Adoptive Admission a. A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission. 26 b. In Criminal cases, 4 elements required for criminal D regarding adoptive admissions through silence: i. (1) the statement was heard and understood; ii. (2) the party was at liberty to respond; iii. (3) the circumstances naturally called for a response; iv. (4) the party failed to respond. 3. Statements of Agents a. Statements by an agent concerning any matter within the scope of his agency, made during the existence of the employment relationship, are NOT hearsay. b. TEST: Whether the statement of the agent was made within the scope of his employment and during the agents employment 4. Statements by Authorized Person a. Similar to statements by agents. 5. Co-Conspirators a. (1) Admissions of one coconspirator, made to a third party (2) in furtherance of a conspiracy to commit a crime or a civil wrong, (3) at a time when the declarant was participating in the conspiracy, are admissible against the other coconspirators. b. Do NOT need a formal charge of conspiracy for this exclusion o apply, RATHER, only need evidence that there was a criminal joint venture. ii. Admission of a party 1. Admission is defined as Declaration of a party offered against a party. It is admitted as an admission of a party. Usually the admission will be inconsistent with the person’s present position at the time of trial. 27 2. An Admission need NOT be based on personal knowledge. 3. An admission can be in the form of a conclusion or opinion 4. 3 categories of situations that do NOT fit the traditional definition of hearsay and thus are NOT hearsay: a. (1) Verbal Act or valid legal acts: the substantive law says that if you say those words you have committed a legal act. The only question is did the Declarant say those words. We do not care about the Declarant’s perception, memory and sincerity. i. E.g.: The Declarant said “I accept your offer”; words of defamation – anyone who hears it can testify at the defamation trial; words of bribery; words of cancellation; words of waiver b. (2) Out of court statement is offered to show effect on the person who heard it or read it. So it is offered to show notice or good faith or to show motive or why a person did or did not act in a certain way. c. (3) Out of court statement which is offered as circumstantial evidence of the Declarant’s state of mind when what is going on in his mind is relevant in the case. i. E.g.: case where D pleads insanity defense. ii. (2) If it is hearsay, what exceptions apply 1. EXCEPTIONS THAT REQUIRE DECLARANT TO BE UNAVAILABLE: i. Declarant Unavailable IF 1. Declarant is exempted from testifying by a court ruling on the ground of the privilege; 2. Declarant persists, despite court order, in refusing to testify concerning the statement; 3. Declarant testifies to lack of memory of the subject mater of the statement; 4. Declarant is unable to be present or testify because of death OR physical OR mental illness; 5. Declarant is absent (e.g. beyond the reach of the trial court’s subpoena) and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. b. (1) Former testimony i. Always involves two proceedings – witness testifies live in proceeding number 1 and in proceeding 2 can the witness testimony be admitted? YES 28 ii. 2 Requirements: 1. There must be a meaningful opportunity to cross examine the witness in the first proceeding; AND a. The issue must be the same in BOTH proceedings b. There has to be at least a partial identity of parties 2. Unavailability of the witness at the second proceeding a. Unavailability is defined as absence from the jurisdiction, death, mental or physical illness. b. NOTE the witness can be on the stand BUT still be unavailable – because they can raise a privilege not to testify or just refuses to testify c. (2) Statement against interest i. It has to be against the interest at the time it was made ii. RULE: It is a declaration of any person now unavailable against that person’s money interest or property interest or penal interest (criminal or civil labiality) at the time it was made 1. Limitation: a. Pertains to statement against penal interest (Criminal trial) – a statement which is offered to help the accused in a criminal case is NOT admissible without corroboration of the trustworthiness of the out of court statement against penal interest. i. This usually comes into play with 3rd party confessions iii. Do NOT confuse this with an admission of a party exception 1. This exception is different in 4 ways: a. The statement against interest MUST be against interest at the time it was made. b. Statement against interest can be made by ANY person c. Personal knowledge is required d. Unavailability is required 29 i. Remember that unavailability is required for 2 exceptions (1) former testimony and (2) statement against interest. iv. TIP: This exception may need to be raised rather than the admission of a party exception – Raise both where appropriate on the EXAM. d. Dying declaration i. Statement made under a sense of impending death ii. Traditional rationale is that a person at a moment of death will not lie because there is no motive to die. iii. 4 basic requirements for this exception: 1. Statement must be made under a sense of impending death (this is state of mind requirement and it is important) a. On the EXAM the Prof. will have to give you the state of mind requirement. Has to indicate that the person knew they are going to die 2. The declarant need NOT die BUT they must be unavailable for trial 3. Dying declaration is admissible in civil cases and homicide cases (NOT all criminal cases) 4. Content limitation – the dying declaration must concern the cause or circumstances of the impending death. e. Statements of personal or family history – statements of the declarant’s family or personal history OR about another family member’s history or other intimate person/family members will be treated as an exception under the hearsay rule. f. Spontaneous statements (UNAVAILABILITY OF DECLARANT NOT REQUIRED) i. Existing state of mind 1. Declaration of existing state of mind when state of mind is at issue ii. Declaration of intent to do something in the future 1. Declaration of present intent to do something in the not too distant future is admissible to infer what was intended was done by the declarant. 2. NOTE: Most of the exam questions will be criminal cases like this hypo: V stabbed and killed and D charged with crime and says he has alibi. Now prosecution call friend of V 30 and he testifies that two days before D died he said he intended to met D on Sunday and have it out with him. iii. Excited utterance 1. 3 Requirements: a. Must be a startling event b. Statement must be made under the stress of excitement from the startling event. c. Statement must concern the facts of the starling occurrence 2. There can be a time lapse between the event and the statement but the question becomes had the stress worn off when the statement was made. 3. On the EXAM look for verbs like screamed, exclaimed, shouted, etc. for clues to the question dealing with excited utterances. iv. Present sense impression 1. Declarant is describing something at about the very moment it is happening. 2. Statement needs to be a description made while perceiving the event. The perception and the statement need to be contemporaneous v. Present physical condition 1. Declaration of present physical condition (e.g. pain, suffering, etc.) is admissible by anyone who hears it. 2. This is admissible because it is like a present sense impression vi. Past physical condition 1. A declaration of past medical history made for the purpose of diagnosis or treatment is admissible even if it is made solely for purposes of diagnosis to give testimony in court. g. Business record exception i. One of the most used exceptions ii. 2 foundational matters that are important: 1. What is the rationale for the exception? The employees have an incentive to be accurate in observing and reporting business facts because they are motivated by there duty to do so or they force being fired 31 2. The employees do NOT have to come to court and testify. Rather the record can testify to anything the employees would be able to testify about live at a trial. iii. Problems with Business Records exception: 1. Is it a business record? This depends on one fact – is the entry germane to the business. a. The entry must be germane to the business. 2. Suppose the entry is germane BUT the information did NOT come from an employee, but rather it came from an outsider. a. NOTE that X the outside is under NO duty to be accurate about his reporting thus the rational for the rule is undermined. b. In Sum we have a double hearsay problem and thus the business records exception is NOT enough and thus you need another exception with the Business recorders exception. c. Hypo: car accident and 30 minutes later cops arrive and he is going to make a report that has 3 parts (1) observations of officer where he records the D’s skid marks from his car; (2) statement of witnesses and officer records the statement of X that says D went through red light; (3) statement of driver and the officer records the D’s statement where he said he ran the red light. Now there people injured sued D and offer the police report as a business record. Police reports are business records. Which entries can be admitted? Entry 1? Yes it is admissible. Entry 2? Is it germane – yes- if called the officer can he testify about what person said – NO thus this CANNOT be admitted so need another hearsay exception and there is none so Entry 2 does NOT 32 come in. Entry 3? Is the entry germane – yes - if called the employee to the stated will they be able to testify about what the D told the officer? – YES because it was an admission. Thus entry 3 is admissible. c. Residual Exception to the hearsay rule – Rule 807 – in extraordinary circumstances where you have an out of court statements that do NOT fit the exception the trial judge may admit it if he finds that it has particular guarantees of trustworthiness. i. There are 5 requirements that must be met in order to get statements in under the Residual Exception: 1. Proponent of statements must give other side adequate notice of intent to use the statement including statements particular and the identity and address of the declarant. 2. Statements must have strong circumstantial guarantee of trustworthiness 3. The statement must go to material fact 4. Must prove the statement is the most probative evidence reasonably available 5. Must show that admission of the statements will NOT be unfair or unjust ii. Make reference to this on the EXAM b. 6th Amendment Right of Confrontation i. The accused has a right in a criminal case to confront witnesses. ii. What does it mean? 1. Crawford case a. RULE: IF you have hearsay in criminal case that you want to admit against the criminal D, AND IF it is considered testimonial hearsay (it is a determined to be a testimonial statement), THEN either the Declarant has to be available for cross examination OR the statement has to have been made under circumstances where the D had the chance to cross examine the declarant. b. Holding: even if the out of court statement fits a hearsay exception (and thus admissible) it should still be excluded by the 6th amendment IF 4 factors exist: i. The out of court statement is offered against the accused in a criminal case; ii. There was NO opportunity for the D to cross examine when the statement was made; iii. There was no opportunity to cross examine at trial because the witness is unavailable; AND iv. The statement was testimonial in nature – testimonial means a statement which is made to law 33 enforcement personnel used for the prosecution or investigation of a crime. 1. What is testimonial evidence? The S. Ct. does NOT give a clear definition. There are some suggestions: Testimonial statements are a. Prior testimony at a preliminary hearing, at a former trial, or before a grand jury b. Statements given to police during interrogations c. Formalized material developed to be used at trial – e.g. affidavits, confessions obtained by police, etc. 2. What is NOT Testimonial: a. Offhand remarks made not to be heard by others b. Offhand remarks to acquaintances c. Statements in furtherance of conspiracy d. Business records. 2. After Crawford, the question is does the framework used before Crawford ruling still relevant for NON-testimonial statements. a. It appears to be yes, use the pre-Crawford framework for NON-testimonial statements 3. IF the statement is NON-Testimonial hearsay, THEN the Roberts line of cases still apply a. Thus, 2 requirements: declarant must be unavailable AND the statement must be reliable. c. The Bruton Doctrine i. The Bruton Doctrine concerns: Where you have incriminating statement (incriminates bother Co-Ds) made by co-D that is admissible against the co-D BUT NOT the other D (one you represent). Are there confrontation clause concerns raised? ii. RULE: IF the confessing D takes the stand AND is subject to cross examination by other implicated Ds THEN there is NO Bruton violation. 1. BUT NOTE: CANNOT force the person to take the stand. iii. Bruton ONLY applies to evidence NOT properly admissible against a D. 34