Law School Outlines - Evidence_intro

EVIDENCE – FALL 2000--PROFESSOR HORNSTEIN I. Introduction to the Court Process a. Stages of Litigation i. ii. iii. iv. Initial Client Contact Fact Investigation Discovery Pleadings 1. In framing your pleadings keep in mind that they often determine what evidence can be admitted. Filing More Discovery & Investigation Pre-Trial Motions 1. Motions “in Liminea” 2. Pretrial motions on the admissibility of evidence Pre-Trial Conference Trial Post-Trial Motions Judgment Appeal Execution of Judgment v. vi. vii. viii. ix. x. xi. xii. xiii. b. Stages of Trial i. Jury (De) Selection: Jury selection is one of the most important stages of the trial. 1. Venire: initial group of potential jurors 2. Voir Dire: getting information from the jury a. One Method: Lawyers conduct the voir dire b. Second Method: The judge conducts the voir dire. The lawyers can submit their questions to the judge so the judge can ask the jury. 3. You bump potential jurors by challenging them a. Challenge for (True) Cause i. Categorical bias/prejudice that a statute specifies as cause. ii. The judge has no discretion. 1 b. Challenge for Cause i. Personal bias/prejudice by the juror that could affect his/her ability to render a fair verdict. ii. The judge has discretion. c. Preemptory Challenge i. The lawyer can dismiss a juror without having to explain his/her reasons. ii. Few restrictions except an attorney can’t strike jurors on the basis of race and gender. ii. Opening Statements 1. Overly important stage because the jurors start to take sides after the opening statements. 2. The lawyer says what he/she is going to prove. a. Tell the story coherently and concisely. Make vivid descriptions and use sensory language. b. Assure the jury that you are a worthy guide. You are honest and competent. 3. Principles of Primacy and Recency a. Start with your story, then introduce yourself. b. Reveal some of the weaknesses in your case. i. Why: It builds trustworthiness ii. When: In the middle of your statement. Put your strongest points in the beginning and the end. iii. Types of Weaknesses 1. Evidentiary Weakness: e.g. less credible witness 2. Source Weakness: e.g. boring documents 2 c. Never reserve your opening statement because it doesn’t give jurors the opportunity to root for you. iii. Plaintiff’s (or State’s) Case in Chief iv. Defense Motion for Directed Verdict (Denied) v. Defendant’s Case in Chief vi. Plaintiff’s (or State’s) Rebuttal Case vii. Cross Motions for Directed Verdicts (Denied) viii. Closing Arguments 1. Should be drafted before the first day of trial. 2. It tells you what you need a. You know when to conclude your examination and cross-examination. ix. Requests to Charge 1. Lawyers can ask that certain language be used, which the judge may or may not use. 2. The judge can also use his own language x. Jury Poll 1. Judge goes through the jury poll by poll 2. If you represent the defendant always ask for this. xi. Motion for JNOV or New Trial xii. Entry of Judgement c. Examining Witnesses i. Witness 1 1. Direct Examination a. One of the most important stages. b. Prepare your witnesses. c. The witness is the star not the lawyer, which makes it difficult. d. Introduce exhibits, if any. Do it crisply, cleanly, and move on. 2. Cross Examination 3 a. Prepare your witnesses b. Witness doesn’t get to say anything but YES c. Tell a story that the witness affirms. 3. Redirect Examination 4. Recross Examination ii. Witness 2 1. Same process as above d. Making Objections i. Successful Objections must be: 1. Specific 2. State the Correct Grounds 3. Timely ii. Rule: Everything is admissible in the absence of an objection. iii. Before you object to the admission of evidence you should: 1. Have a reasonable chance of winning your objection. a. Otherwise it really irritates the judge. 2. Never just object to something simply because the evidence is inadmissible a. It reduces your credibility with the jury. It looks like your hiding something. iv. Let the judge know in pre-trial conference about possible evidenciary difficulties. 1. Judges hate making difficult evidence rulings in a split second. v. General Objection (objection without grounds) 1. Treated like no objection at all in most courts. 2. It will not preserve an issue for appeal. 3. BEFORE 1995 in Maryland you could make a general objection because there were no codified rules of evidence. 4. TODAY in Maryland the rules are codified. But you can still make a general objection unless the judge requires it. 4 In many instances you may be required to state specific grounds. Relevance e. In General i. FRE 401; 5401 MD 1. Rule: In order to be admissible the evidence must be relevant. Irrelevant evidence is inadmissible. 2. Most of the other rules cover the inadmissibility of evidence. 3. There is a bias toward admissibility unless you can find a reason to keep it out. ii. Relevance: Evidence is relevant if it makes the proposition for which it’s offered ANY more or less likely than it would be without the evidence. 1. Relevant is a relational concept. It describes the relationship between evidence and the proposition for which the evidence is offered. 2. Evidence can be relevant but need not be sufficient evidence. To demand sufficiency for each piece of evidence would make it impossible to prove a case. iii. Materiality 1. Materiality has to do with the relationship between the proposition and some matter properly provable in the case. 2. Rule 401 a. Materiality = “of consequence to the determination of the action.” 3. Materiality is determined by the law and the pleadings a. Your pleadings will be determined by what you want to prove and what evidence you want to keep in or out. 5 4. Direct evidence is always relevant to the proposition for which it is offered. But if that proposition is not “of consequence to the determination of the action,” the evidence is not material. iv. Types of Evidence 1. Direct Evidence: Evidence which if you believe it establishes the proposition for which it’s offered. a. Example: A guard said no one crossed the snowy field. b. Direct evidence is always relevant to the proposition for which it is offered. 2. Circumstantial Evidence: You must make one or more inferences from the evidence to establish the proposition for which it’s offered. a. Example: Fresh tracks in the snow. b. Circumstantial evidence is relevant if it makes the proposition for which it is offered any more or less likely than it would be without the evidence. 3. Probative Value a. Unlike relevance, which is an all or none concept, the probative value of evidence may vary. b. If the probative value is zero the evidence is irrelevant to the proposition for which it is offered. c. Evidence may be relevant to more than one proposition. v. Rule 403 1. Though relevant, evidence may be excluded for any of the following reasons: a. Time Constraints b. Confusing for the Jury c. Unfair Prejudice 6 i. Evidence may be unfairly prejudicial because the jury will give it substantially more weight than it deserves. ii. Evidence may also be unfairly prejudicial because the jury will use it for an improper purpose. d. REDUCING PREJUDICE: One way to reduce prejudice of this type is with limiting instructions (See FRE 105) 2. Balancing the Factors a. It is only when the consumption of time, jury confusion, or unfair prejudice substantially outweigh probative value that the evidence should be excluded. vi. Everything in the Rules of Evidence flows from Rules 401, 402, 403 f. Conditional Relevance and Authentication i. Conditional Relevance: FRE 104(b) 1. The relevance of a piece of evidence (E) may depend on the existence of some other fact (F). 2. Question: How sure do we have to be on the existence of that other fact? 3. Answer: If the jury could reasonably find F, the relevance question is for the jury. If it were not irrational for the jury to find F then the court will let E in. ii. Real or Demonstrative or Illustrative Evidence 1. Real evidence is the actual items a. It impacts the jury enormously. 7 iii. Authentication: FRE 901 1. Authentication is a particular kind of conditional relevance in which the fact (F) on which relevance depends is that the evidence is what it is claimed to be. 2. In such instances, the proponent must lay a foundation sufficient to allow a jury to find that E is what it is claimed to be. 3. There are three ways to authenticate REAL EVIDENCE (E): a. Show that E is unique OR, i. I.E. one of a kind ii. Example: Mona Lisa b. E was made unique OR, i. Example: Glock 9 with police officer’s initials and date carved in the butt. c. Chain of Custody i. Example: Cope testifying to his possession of a cocaine bag since he arrested the drug courier. 4. Authenticating Illustrative or Demonstrative Evidence a. Examples i. You lost the murder knife and you want to introduce a copy of the knife. ii. Photograph of the body 1. The body is real evidence, but the photograph is illustrative evidence. b. Rule: You must show the evidence is authentic and that there is a similarity of condition (i.e. the evidence is representative). 8 c. The Process i. Step 1: Have the exhibit marked for identification. (e.g. State’s Exhibit #1) ii. Step 2: Authenticate the exhibit at trial through a witness. iii. Step 3: Offer the exhibit into evidence 1. If the other side does not object or their objection is overruled the evidence comes in. iv. Step 4: Ask permission to show the evidence to the jury 1. This is called, “Publishing the Exhibit.” 2. Publish the exhibit at the end of your direct examination. d. Authenticating a Letter i. Letters must be authenticated through outside evidence. ii. Steps in Letter Authentication 1. W who saw the letter signed, OR; 2. W familiar with the writer’s handwriting, OR; 3. Expert comparison with exemplar, OR; 4. Circumstantially (e.g. peculiar knowledge) a. Example (Problem 11-4): Person A knew the exact defect with her toaster. 9 e. Authenticating a Phone Call i. You need outside evidence to authenticate (like the letter). ii. Example #1: Incoming Call 1. Nothing beyond caller’s claim. iii. Example #2: Outgoing Call 1. Self ID plus phone number listed as Zolton’s phone number. 5. Self-Authenticating Evidence: FRE 902 a. Rule: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for certain exhibits (see FRE 902 for details). b. Example: A newspaper is self-authenticating. This is the chronicle for that date. 6. Original Documents Rule (Best Evidence). a. Rule: If you are going to prove the contents of a writing or recording you must produce the original UNLESS you can’t. (i.e. documents/recording were destroyed or lost. No legal requirement to introduce the most probative evidence. b. Reasons for the Documents i. You need to bring in the documents for their own value. ii. You want to draw an inference from the contents. c. History behind the rule i. At the Rule’s inception (1800s) it made good sense. The Xerox machine did not exist. ii. But now things are different. 10 1. The Xerox machine does not make mistakes. It makes perfect documents. iii. The Rule still stands. However duplicates are just like the originals unless their accuracy is questionable in some way. d. Distinction between proving something that happened to be recorded and proving the contents of the recording. i. The Original Document Rule (Best Evidence) applies to the latter situation. e. If the proponent purposefully destroys the recording/document, the evidence can’t come in. f. The Rule also applies to inscribed chattels (e.g. wedding ring with inscription). i. Question: When do you have to bring in the inscribed chattel? ii. Answer: It depends on how feasible it is to bring it in. g. Relevant but Inadmissible i. Subsequent Remedial Measures: FRE 407 1. Rule: Subsequent remedial measures though relevant are not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. 2. HOWEVER, subsequent remedial measures can be used to show control/ownership and the feasibility of precaution. ii. FRE 408-410 1. Rule(s): Agreements to provide remedial measures, offers to settle the case are not generally admissible to prove liability. 11 2. Reasons: a. They jury may overemphasize the evidence. b. It would discourage settlements. 3. Statements of Fact during settlement conferences are not admissible. However, statements of fact outside the settlement conferences are admissible to prove liability. 4. FRE 409: Offers to pay medical/hospital expenses are not generally admissible to prove liability. 5. The Straight Offer to Pay Expenses a. This offer is admissible to prove liability. h. Character & Habit i. Character Evidence 1. Ask what the evidence is offered to prove? 2. Is evidence regarding a person’s character relevant in deciding whether that person acted a certain way? ii. FRE 404(a): Character is not admissible to show conduct on a particular occasion. 1. Reason: Juries tend to overuse the evidence. 2. Exceptions: a. If you are a defendant in a criminal case you can introduce character evidence to show you are less likely to have committed the crime. It’s witness himself/herself. Example: A Supreme Court justice will be more persuasive than a regular joe. i. NOTE: It’s not what the witness says. b. FRE 404(a)(1): If the D opens the door to his own character, P may use D’s character to show D’s conduct to rebut. c. FRE 404(a)(1): D may use the victim’s (V’s) character to show V’s conduct. (Assuming it’s relevant.) 12 d. If D opens the door to V’s character, P may use evidence of V’s character to show V’s conduct to rebut. i. ON December 1st this becomes the law: If D opens the door to V’s character to show V’s conduct P may use evidence of the same trait of D’s character to show D’s conduct. e. Rule 404(a)(2) i. 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 1st aggressor. iii. Proving Character: FRE 405 1. Two Ways to reach the person’s character a. Method #1: Offer evidence of the person that shows reputation in the community. i. If you are seeking to prove character through reputation in the community be sure to state the relevant community. ii. Reputation is circumstantial evidence of character. b. Method #2: Call a witness who knows the person. 2. Prior Specific Acts a. Rule: Prior specific acts are not admissible to prove character. b. Policy Reasons: The problem with specific acts is that P and D could keep calling rebuttal witnesses. 13 c. Exceptions: FRE 405(b) i. Specific acts may be used if character is in issue. ii. 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. iii. Examples: 1. Defamation Case: You are trying to prove reputation not character. 2. Defense of Entrapment: You must show lack of predisposition and … This is character. 3. Negligent Entrustment: You must show the entrustee is a negligent person AND D knew about it. d. FRE 405(a): On cross-examination, inquiry is allowable into relevant specific instances of conduct. i. P is using the specific acts to impeach the credibility of the character witness. In this instance P is not trying to prove character. ii. Example: 1. W testifies that Zolton is a peaceable person (reputation). 2. P cross-examines. “Were you aware that (or did you know) Zolton put his cat in the microwave? iii. P must have a good faith basis when inquiring about the act. 14 e. FRE 404(b): i. Rule: Evidence of specific acts is not admissible to prove character but it is admissible for other purposes (e.g. proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). iv. Doctrine of Chances 1. This comes up in the dead spouse in the bathtub example. v. Common Scheme or Plan 1. Rule: Evidence can come in to prove a chain of events. 2. Requirements: a. There must be a strong connection. b. There must be a series of acts designed to achieve a common goal. 3. Example: Seven heirs between you and family fortune. You kill off the heirs one by one to get the family fortune. Getting the family fortune is the common plan. vi. FRE 412: Rape Shield (See pp. 413-415) vii. FRE 404(b): Notice must be given to the opposing party. viii. Habit: FRE 406 1. Rule: Evidence of habit can be used to prove conduct. 2. Difference between Habit and Character: a. Habit: The simpler, regular, and virtually standard the behavior the more likely the court will see it as habit. b. Character: The more complex and general the behavior the more likely a court will see it as character. 3. The difference between character and habit is sometimes difficult to draw. 15 Testimonial Evidence i. In General i. Definition: Evidence that comes through the testimony of witnesses. Most evidence comes in this way. ii. An attorney’s job is to familiarize the witness with the workings of the courtroom. iii. Pre-Trial: see notes j. Mode of Interrogation i. Direct Examination 1. General Information a. Use action words. b. Remember the primacy & recency principles i. Put your strong points at the beginning and at the end. 2. Leading Questions a. Rule: Leading questions suggest to the witness the desired answer. For this reason you can’t ask leading questions on direct examination unless an EXCEPTION exists. b. Exceptions i. Preliminary Matters: e.g. name, profession, etc. ii. Matters not in Dispute iii. Inconsequential Matters iv. Witnesses with Communication Difficulties: e.g. very young, very old v. Forgetful or Reluctant Witnesses vi. Adverse Party vii. Hostile Witness viii. Directing the witness to new matter (“headlining”) 16 c. Present Recollection Refreshed i. A witness who cannot recall the event is not competent to testify about it. ii. Rule: A witness may have her recollection refreshed by anything (e.g., writing, object, etc.) that triggered the recollection. The witness may then testify from refreshed present recollection. iii. Procedural Safeguards: 1. The thing used to refresh recollection is not itself evidence. a. I.E. it does not have to be authenticated, etc. 2. Opponent is entitled to inspect, cross-examine on and/or introduce in evidence the thing used to refresh recollection WHILE the witness is testifying. 3. The court MAY permit opponent to inspect, cross-examine on and/or introduce in evidence the thing used to refresh recollection before witness testifies. iv. You can refresh recollection only when the witness says: “I don’t remember.” Or to develop the witness’s testimony. ii. Cross-Examination 1. General Information: a. You are entitled to ask leading questions on cross. If fact, ONLY ask leading questions. 17 b. Get your questions from what you need for closing. Don’t ask one too many questions. c. Never give the witness the opportunity to explain his/her answer. d. It is permissible to ask a question you don’t know the answer to IF the answer isn’t important. e. See notes from 9/20/00 for more information. 2. Scope of Cross-Examination a. Rule: The opponent may cross-examine on matters covered in the direct examination and on matters related to witness credibility. b. The court may permit cross beyond the scope of direct, but only “as if on direct.” i. In this situation you cannot ask leading questions (unless an exception exists in direct examination. c. MD Rule: Confessions i. In federal court and other states the admissibility of confessions is an issue for the judge. ii. In MD, the defendant is allowed to testify to the voluntaryness of the confession to the jury. If the jury doesn’t believe the confession to be voluntary they can disregard it. Rule #1 also applies. d. If the defendant testifies then he is subject to cross on everything. k. Opinions: Lay & Expert i. Lay Witnesses 1. Testimony a. Witnesses should testify to the facts. 18 b. Fact & Opinion; “News NOT Editorials” c. The line between fact and opinion is sometimes difficult to draw. i. The closer to perception it is the more likely we are to call it fact. 2. If the jury is as capable of drawing the inference as the witness’s inference, we want the witness to testify as to the specific facts. 3. When the witness is in a better position to draw the inference than the jury, the court will allow the witness to testify in more general terms. 4. Witnesses can testify in the form of opinion if: a. Basis is first hand experience. b. AND, it’s helpful to the fact finder (jury). ii. Expert Testimony: FRE 702 1. Rule: Experts are allowed to testify in the form of opinion if certain requirements are met. 2. Requirements a. Appropriate Subject matter i. Matters the jury is not familiar with. b. A foundation must be established i. You have to qualify the witness as an “expert.” 1. Education 2. Training 3. Instruction 4. ETC. ii. The witness’s testimony is relevant to the appropriate subject matter. c. An appropriate basis must be established i. Personal Knowledge 19 ii. Facts in Evidence iii. Fact’s not in evidence on which experts reasonably rely. 3. After this (assuming W passes all three conditions) the expert witness can testify. 4. NEVER ACCEPT A STIPULATION OF EXPERTISE a. You can’t list the witness’s qualifications which will bolster your witness’s credibility. 5. Qualifying the Witness a. Old Way: Asking the witness a hypothetical question based on the facts. 6. Cross-Examining Experts a. You can use the normal challenges for challenging credibility. i. Basis, expertise, opinion by itself, etc. ii. “Is there a possibility you are mistaken?” b. Focus on the more narrow area of expertise. (Subspecialties) c. Challenge the witness based on the lack of expertise with the victim or D (depending on the case). iii. Scientific Evidence 1. Old Rule (Frye Test): The evidence is admissible if it is generally accepted in the scientific community. a. Problems with this test: It’s a very high standard to meet. Many new scientific principles would not get in. 2. New Rule (Daubert v. Merrrel Dow Pharm.) a. Weighing of Factors: The judge weighs the reliability factors and determines whether or not the evidence is admissible. 20 i. On appeal from trial court’s ruling, the standard is abuse of discreation. b. This is the rule for federal courts and some state courts. States are still free to follow the Frye Test. c. Reliability Factors i. Testability of Theory or Technique ii. Peer Review/Publication iii. Rate of Error iv. Acceptance in Relevant Community d. Maryland Rule: MD still follows the Frye Test. It’s the Frye-Reed Standard. l. Competency i. FRE 602: To be competent a witness must have personal knowledge. If the following factors aren’t present the witness’s statement does not make the proposition W testifies to any more likely. W’s statement becomes irrelevant. The judge makes the final determination of the witness’s competency. 1. W must have perceived the event. 2. W must have recollection of the event. ii. Federal Courts: There are no more categorical exclusions for competency. 1. Exceptions a. The judge trying the case. b. Jurors iii. Maryland Rules 1. A convicted perjurer can’t testify unless it’s the defendant. 2. Dead Man’s Act: a. Rule: A person testifying against a witness who has died cannot testify. b. Reason: To protect the dead person’s estate in creditor claims. 21 iv. Direct Evidence: “There is an inference after all.” 1. If the witness says P (proposition), the P is more likely to be true than if the witness did not say P. 2. In the very rare instances in which W’s statement does not make P more likely, the witness is incompetant. 3. Incompetency is to direct evidence as irrelevance is to circumstantial evidence. v. FRE 603: A witness must take an oath or affirmation to tell the truth. It’s legal assurance designed to awaken the witness’s conscience to the importance of telling the truth. m. Impeachment & Rehabilitation i. Direct evidence requires an inference of belief: 1. If W says P, then P is more likely to be true than if W had not said P. 2. Credibility: It’s the probative value of W’s testimony. 3. The inference of belief is really two inferences: a. That the statement/evidence accurately reflects the belief of the witness. b. That the belief of the witness accurately reflects the facts. i. ii. The jury determines the credibility of the witness 1. Factors they use: a. Demeanor b. The Adversary System: Cross-Examination iii. Testimonial Weaknesses 1. W’s belief may not accurately reflect the facts (proposition) for two reasons: a. W may not accurately perceived the facts accurately. b. AND/OR, W’s memory may be faulty. 22 2. W’s statement(s) may fail to reflect W’s belief for two reasons. In either case the credibility of W is diminished: a. W may by lying (insincerity). i. Impeachment is a way to test “sincerity.” b. W’s statement may fail to convey W’s meaning. i. Example: W says one thing but means something else. a 3. Summary of Testimonial Evidence a. Sincerity b. Narration c. Perception d. Memory 4. NOTE: It’s more effective to impeach a witness on perception and memory rather than on sincerity. No juror wants to see someone humiliated. 5. Most of the evidence law on impeachment deals with sincerity. a. Reasons i. To prevent witness badgering. ii. There are more ways to show people are lying. iv. Cross-Examination: Cross-examination allows the jury to assess the probative value of the inference of belief by testing the testimonial weaknesses. v. Impeachment by Contradiction 1. It will be more or less probative depending on what the facts are. a. Example: Q: “Isn’t it true the light was green not red.” A: “Now that you mention it, yes, it was green.” 23 2. Rule: On impeachment by contradiction you may introduce extrinsic evidence if the matter is not collateral. If it’s collateral the evidence it’s inadmissible. a. What’s Collateral? i. It’s not collateral if it’s important. ii. It’s collateral if it’s not important. b. If W makes an unimportant fact important, you can introduce extrinsic evidence. i. Example: Jewish man recalls the accident because that was the very first day he ate bacon. ii. If W makes the fact a lynchpin or cornerstone of his testimony it’s no longer collateral. c. It’s possible for evidence to be not independently admissible AND not collateral. vi. Impeachment: Sincerity 1. Five Categories of Sincerity Impeachment a. Bias, Interest, Prejudice, and Corruption b. Prior Convictions (of the Witness): FRE 609 c. Prior Acts: FRE 608 d. Prior Inconsistent Statements e. Character (for veracity) of witness 2. Bias, Interest, Prejudice, & Corruption a. You can inquire on cross about the facts given rise to: bias, interest, etc. i. If W admits the facts the impeachment is done. ii. If W denies the facts extrinsic evidence is permitted (“Bias is never collateral.”). b. No foundation required. 24 c. Extrinsic evidence is permitted. i. You don’t have to inquire on cross in order to introduce extrinsic evidence. d. There is no specific rule on “bias.” FRE 402 is the closest thing to limiting the inquiry. So there are few limitations on what you can introduce. i. NOTE: In some state courts you must inquire of the witness about bias before introducing extrinsic evidence. 3. Prior Acts (for which there is no conviction): FRE 608 a. Inquiry on Cross is permitted. i. Good Faith Basis required. 1. You can’t make up stuff and ask the witness about it. 2. You must have reason to believe. a. Via documentation, an informant, etc. b. You don’t need to prove it beyond a reasonable doubt. ii. It must be a prior act relevant to credibility. 1. Example: You can’t bring up the fact that W previously kicked a dog. b. NO extrinsic evidence i. You must accept W’s answer. c. The rule is silent in terms of time limit i. Example: Can you use a prior act from 20 years ago? It depends on the probative value versus the prejudice (FRE 403). d. MD 5-608 is similar to FRE 608 but it’s somewhat clearer. 25 4. Impeachment By Prior Conviction: FRE 609 CONVICTION Crimen Falsi WITNESS Anyone WEIGHING None-always admissible NET Felony NOT Crimen Falsi Anyone BUT the Criminal D. FRE 403 Felony NOT Crimen Falso Criminal D. Probative Value > Prejudice Conviction over Anyone 10 years old even Crimen Falsi (notice required) Probative Value >> Prejudice (Must Substantially Outweigh) Misdemeanor NOT Crimen Falsi Anyone NONE— Always Prohibited a. In the real world a trial judge probably won’t follow this. It’s just not practical. b. Not sure whether or not to put D on the stand because D has a prior conviction. i. Ask for a Motion in Liminea. If it’s denied don’t let D testify. c. D testifies but no evidence of character. 26 i. Prior conviction is used only to impeach credibility. 1. The closer the conviction deals with truthfulness the more probative it is. 2. The more the prior conviction is similar to the current crime the more prejudicial it is. ii. Examples PRIOR CONVICTION Embezzlement CURRENT CHARGE Murder The prior conviction deals with truthfulness (high probative value). Prejudice is not likely because the prior conviction is not related to the current charge. PRIOR CONVICTION Murder CURRENT CHARGE Murder Low probative value because the prior conviction isn’t a crime of dishonesty. There is a very high amount of prejudice. PRIOR CONVICTION Perjury CURRENT CHARGE Perjury High prob. Value and high prejudice. The court could go either way. 5. Prior Inconsistent Statements a. Inquiry on cross-examination permitted. i. You MUST inquire on cross. b. Extrinsic evidence allowed only if the matter is “not collateral” and the witness is given an opportunity to explain. 27 Hearsay n. Defined under FRE 802: Hearsay is an out of court statement offered to prove the truth of the matter contained in the statement. Hearsay is not admissible unless an exception exists. i. It’s anything said by a person NOT on this witness stand before this jury in this court. ii. If evidence depends on the credibility of someone who can’t be cross-examined it’s hearsay and therefore not admissible, subject to exceptions. iii. What do we mean by a statement? 1. A statement is an assertion or non-verbal conduct intended as an assertion. 2. A statement is offered for its truth when its probative value depends on the credibility of the person who made the statement (declarant)—the inference of belief. a iv. Questions to Ask 1. Ask: I want to examine the out of court declarant. What can I accomplish? 2. Ask: a. Is the statement hearsay? b. If it is hearsay does an exception exist? v. Multiple Hearsay 1. There can be hearsay within hearsay. An exception must exist for each statement. 2. That further inferences may be drawn from an out-of-court statement does not affect its hearsay character so long as the truth of the out of court statement is a necessary link in the inferential chain. o. MD Rule i. If the statement is written and signed OR if it is recorded verbatim, the statement is admissible. 28 ii. The federal categories also apply. p. Non-Hearsay i. Verbal Acts 1. A verbal act is an utterance that changes a legal relationship. It matters who said the statement and that the witness heard the statement. 2. Example: Zolton makes an offer to buy Magda’s watch. Tom witnesses Zolton’s statement. 3. Some out of court statements are offered for their effect on the listener. Their probative value is not dependent on an inference of belief. ii. Basis of Inference 1. Some out of court statements are offered as a basis for an inference, but not the inference of belief. iii. Impeachment 1. Prior inconsistent statements may be offered to impeach W’s credibility. They are not hearsay. q. Prior Statements of Witnesses: Not Hearsay i. If the statement falls in one of the following three categories, the statement is not hearsay AND it can be offered for its truth. 1. Prior inconsistent statements given under oath or penalty of perjury. 2. Prior consistent statements offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. 3. Statements of identification made by the witness after perceiving the person. ii. Prior Inconsistent Statement: FRE 801(d)(1)(A) 1. Availability of declarant required 2. If W is testifying and I want to introduce a prior inconsistent statement by that statement, such prior 29 inconsistent statements are always admissible on crossexamination to impeach them. This PIC statement is excluded from hearsay because it is not being offered to prove the truth of the statements. They are only offered to prove lack of credibility. They are being offered to impeach. 3. The rule does not require that the declarant was subject to cross-examination on that statement, unless the Prior Testimony Rule is used, which does require him to be subject to cross-examination. 4. Under this rule, the critical factor is the ability to crossexamine NOW and that W is testifying NOW. 5. As long as the prior statement was made before the motive to falsify, then it is admissible, even if it was made later in time than the prior inconsistent statement. iii. Prior Consistent Statement: FRE 801(d)(1)(B) 1. Not Hearsay 2. Availability of the declarant required. 3. If the claim is that the present test is the result of a recent fabrication, then the proponent of that W can seek to rehabilitate him with a prior consistent statement. 4. As long as the prior statement was made before the motive to falsify, then it is admissible, even if it was made later in time then the prior inconsistent statement. iv. Statements of Identification made after perceiving the person. 1. Not Hearsay 2. Availability of the declarant required. 3. If W is on the stand and subject to cross-examination and the question is one as to the identification of a certain person, a prior statement of such identification might be admissible. 30 4. The typical situation arises in a criminal case in which W identified D in a lineup, and then recants at trial. The prior ID comes in for its truth. 5. There is no requirement for inconsistency. The prior ID can be used simply to strengthen the test. It just must be a statement that is made by W after perceiving the person to be identified, and that W is now on the stand subject to cross. r. Party Admissions FRE 801(d)(2): Not Hearsay i. Admission by party opponent ii. The statement offered against a party and falls into one of the following five categories will not be hearsay and is admissible. iii. Five Categories of Party Admissions 1. Personal Admission a. No barred if offered against the declarant. b. Anything a declarant says that the opposing party uses against him. 2. Adoptive Admission a. The party against whom the statement is being offered has adopted the statement as his/her own. b. The declarant in the adoptive admission situation is not the party adopting the statement. c. Need to Show: i. The opposing party heard and understood the statement. ii. AND, they agreed with it or behaved as if they agreed to it. d. If the silence of the party can be construed as assent the party has adopted the statement. 31 i. Example: If I say, “D you are a thief!” and D is a party and says nothing he has assented to my statement and adopted it. ii. In a police interrogation, situation silence will not be construed as assent. 3. Vicarious Admission by an Agent authorized to speak a. A corporation can’t make a personal statement because it’s not a living person. A corp. can only act through agents. b. Acts of agents within their authority are attributable to the principle. So statements of the agent should also be attributable to P if made within his authority. c. Within his/her authority means: i. That the agent was actually authorized by P to make these statements; ii. AND, such statements are admissions of P—this is called a “Speaking Agent.” 4. Vicarious Admission by an Agent concerning matter within his/her scope of agency a. Attributed to the principal. b. Example: Zolton gets out of the truck (after he hit P) and says to P, “I’m Zolton and I work for Mother Truckers. I fell asleep at the wheel.” c. Can you use the disputed statement itself as evidence to prove the relationship? i. The Supreme Court said yes: 1. It can be used to prove the agency between Zolton and the company (bootstrapping). ii. MD Rules: It remains unclear. 32 5. Co-Conspirator Admission a. Need to Show these Elements: A statement made by a conspirator in furtherance of the conspiracy is attributable to all other conspirators. b. Conspiracy (the crime) need not be charged. c. The conspiracy involved need not be proved beyond a reasonable doubt. i. They question is: “Is there sufficient evidence?” s. Exceptions: Unavailability Immaterial i. Present Sense Impression: FRE 803(1) 1. Definition: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 2. Two requirements a. The statement describes or explains the event. b. AND, the statement occurs contemporaneously with the event. 3. The problems are usually about how contemporaneous the statement has to be. 4. How do we lay the foundation? a. Call a witness. b. Through the statement itself c. Circumstantially ii. Excited Utterances: FRE 803(2) 1. Definition: 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. 2. Reasoning: The reason for the rule is that if you’re under stress you’re less likely to lie. 33 3. A foundation must be built a. Exciting Event (P2) b. Statement relates to exciting event c. Statement made while the declarant is under the stress of excitement. 4. Foundation can be established by: a. Witness b. Circumstantially c. Statement itself 5. If the utterance begins, “Oh my God! …” it’s most likely an excited utterance. iii. Physical & mental state: FRE 803(3) 1. Definition: 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. 2. Statement of then existing intention a. A statement of then existing intention offered to prove that the intention had been carried out. i. The statement looks forward not backwards b. Ask: i. Whether the statement looks to present existing facts (Not a hearsay exception) ii. OR, if the statement is future-looking (forward-looking) 34 c. Sometimes the declarant’s state of mind can serve as the basis for a further inference: i. Example: A statement of intention to prove the intended act was done. iv. Medical Diagnosis: FRE 803(4) 1. Definition: 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. 2. Looks like statements of present physical state. 3. These statements can look backwards but cover a narrower scope. The statement must have been made for the purpose of diagnosis or treatment or contemplation of treatment. 4. The statement made to the physician need not come from the declarant. A third party can make them. a. You could always get the jury to see the statements are unworthy of belief. b. The statement could still come in under an expert opinion. v. Past recollection recorded: FRE 803(5) 1. Definition: 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. 35 2. How to deal with the forgetful witness? a. Under present recollection, notes refreshing memory can’t come in. b. But under FRE 803(5) the notes may be read in. 3. Foundation needed (Requirements): a. Declarant testifies b. Declarant once had knowledge c. Declarant has insufficient memory to testify fully and accurately. d. Declarant made or adopted record. e. Record made or adopted while fresh in declarant’s mind. f. Record is accurate. 4. The notes that record the recollection are not admissible. BUT, the content of the notes may be read to the jury. a. Reason: Testimony that the jury can take with them (tangible evidence) would be given more probative value than live testimony. b. NOTE: When you read past recollection recorded into the record, read it in a way that keeps the jury’s attention. vi. Business & public and similar records: FRE 803(6) 1. Elements of Foundation (Must satisfy all): a. Record was made at or near time of the event recorded. i. Evidence of habit or routine practice (FRE 406) of the business satisfies this. b. Personal knowledge of maker or other source of information with business duty to report c. Record made in regular course of business. d. Regular practice to make record 36 2. Reasoning: Because the records are routine the courts base the trustworthiness of the records on the routine. 3. NOTE: The records are inadmissible if the source or circumstances of preparation indicate lack of trustworthiness. 4. MD Rules: a. In Maryland, this foundation can be laid without a witness if the records are certified by a person with knowledge. b. Certification must be done correctly to satisfy the rule. 5. Fed. Rules: After December 1, 2000 the foundation can be laid without a live witness through proper certification a. FRE 902(11) vii. Public Records: FRE 803(8) 1. Foundation Elements: a. Activities of the Office or Agency b. OR, report of matters observed pursuant to legal duty (but not observed by law enforcement in criminal cases) c. OR, factual findings of legally authorized investigations (but not against criminal defendants). d. Inadmissible if source or circumstances of preparation indicate lack of trustworthiness. viii. Other exceptions (Not on the Exam) 1. Absence of entry in records of regularly conducted activity: FRE 803(7) a. Arguably not hearsay at all, but an exception exists anyway. 2. Learned Treatises: FRE 803(18) a. Past Rule: You could use prior texts to impeach. 37 b. Present Rule: If the treatise is brought to the attention of an expert witness upon crossexamination or relied upon by the… c. Purpose: Changes the balance in favor of parties with fewer evidentiary resource. E.G. injured plaintiff versus big insurance company. t. Exceptions: Unavailability Required i. Grounds of Unavailability: FRE 804(a) 1. Privilege: Declarant has a right not to tell you. 2. Refusal to Testify 3. Lack of Memory 4. Death, Physical or Mental Illness a. You can be competent under FRE 601 and still be unavailable. 5. Absence and the inability of the proponent to secure declarant’s attendance by reasonable means. ii. Prior testimony: FRE 804(b)(1) 1. Rule: 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. 2. Elements of Foundation a. Prior testimony made under oath b. At trial, hearing or deposition c. Subject to cross-examination by current opponent when made. 38 3. Grand jury testimony is never admitted under FRE 804(b)(1) because the declarant is not subject to crossexamination. iii. Dying declarations: FRE 804(b)(2) 1. Definition: 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. 2. NOTE: The declarant doesn’t have to be dead. He/she only has to be unavailable. 3. Reasoning for the Rule: Dying is such an important event that one is unlikely to trivialize it with a lie. 4. Elements of Foundation a. Declarant is unavailable b. Homicide or civil case c. “Consciousness” of impending death when the statement was made. d. The statement concerns the cause or circumstances of what declarant believed was impending death. 5. How do you establish “consciousness” a. The statement itself b. Calling for last rights c. The wounds or injury (mortal injury) d. Statements made by the declarant that look to the future. i. Example: “I’ll be a better person.” ii. These tend to negate the “imminency.” 6. MD Rules: Maryland also permits dying declarations for attempted homicide. 39 iv. Declarations against interest: FRE 804(b)(3) 1. Definition: 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. 2. Different from Party Admissions a. S against I requires the declarant to be unavailable. b. S against I must be against declarant’s interest when it was made. 3. Elements of Foundation a. Declarant is unavailable. b. When the statement was made it was against the declarant’s interest. 4. Interest a. Proprietary b. Pecuniary c. Penal d. CA allows statements against social interest. 5. If the statement is used to exculpate an accused, the statement must be corroborated. a. Reason: It’s designed to prevent people from taking the rap. 6. Problem: Parts of a statement can be against the declarant’s interests and parts can be self-serving. 40 a. Solutions: i. Treat the statement as unitary. ii. Treat the statement as severable. iii. Parce the statement and admit the parts only so far as it’s against the declarant’s interest. b. Can’t simply look at the content of the statement. Look at the context in which the statement is made. c. U.S. Supreme Court and MD say: i. Parce the statement. 41 f. Residual Exception: FRE 807 a. Rule: If you have a hearsay statement and it’s not within any of the specified hearsay statements but it is trustworthy and necessary it can come in. b. Requirements under the Rule: i. Statement not specifically covered by other hearsay exceptions. 1. The “near miss” problem 2. Question: How do we deal with a statement that almost fits under the rules? ii. Circumstantial guarantees of trustworthiness equivalent to 803 and 804 exceptions 1. Problems: It’s different from exception to exception. 2. Corroborating circumstances don’t count. iii. Statement is evidence of a material fact. 1. Means the matter is important. iv. Statement is more probative than other evidence that proponent can produce. v. Admission of the statement will serve the general purposes of rules and interests of justice. 1. One could construe this as giving the trial courts wide discretion. vi. Pre-trial notice to the opposing party 1. You have to provide the notice for the knowledge you have. a. Example: If you have the declarant’s address you must provide it. 2. The burden is on the opposing party to prove prejudice through lack of notice. c. MD Rules: The state rule is pretty much the same as the fed rule. 42 Privilege u. Rule: Courts shall recognize privileges according to the principles of the common law. i. Privilege says we won’t look at its probative value. The courts won’t hear it and won’t allow it to become public. ii. This rule exists to protect communication. iii. Problem: Any time a piece of evidence is excluded for privilege, we are losing truth. v. Qualifying Relationships for Privilege i. Attorney-Client ii. Marital iii. Clergy/Penitent iv. Psychotherapist-Patient-Client v. Other Relationships? 1. Doctor/Patient 2. Accountant/Client 3. Parent/Child w. NOTE: The judiciary can’t create new qualifying relationships. i. If this is a state law case the court should look to the state law on qualifying relationships. x. Requirements for Privilege i. Communication ii. Confidentiality 1. If you tell anybody outside the protected relationship privilege doesn’t apply. iii. Claimed by OR on behalf of the holder 1. The client NOT the lawyer can waive the privilege. y. Exceptions i. In a marital relationship when one of the spouses acts against the other. 43 Judicial Notice: FRE 201 z. Adjudicative Facts: Facts you need to establish in the particular case. aa. Rule: A judicially noticed fact must be one not subject to reasonable dispute in that it is either i. Generally known within the territorial jurisdiction of the trial court. ii. OR, capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. bb. “Your honor, no one would reasonably dispute this.” i. Example: 12 inches in a foot. ii. It’s common knowledge and readily verifiable. Substitutes for Evidence 44