A. Basic Relevancy: 1. Is evidence relevant? -401 a. Does it go to a fact of consequence? -must be related to an element of the claim or defense or credibility or damages b. Does it make that fact of consequence more/less probable than without the evidence? 2. If evidence is relevant, is it's probative value SUBSTANTIALLY outweighed by the danger of unfair prejudice, confusion, misleading the jury or wasting time? B. Special Relevancy Rules -evidence is relevant, but as a matter of policy, Congress has decided it should be kept out 1. Civil cases -can't introduce to prove liability: a. Subsequent remedial measures -407 1. Policy = if you fix something, it shouldn't come back to haunt you 2. Can get in evidence of remedial measure that occurred prior to accident 3. Applies to subsequent remedial measures by this , not by any third parties b. Settlements & statements made during negotiations -408 1. Policy = encourage settlement to free up court docket 2. Total exclusion of evid of compromise/settlement offers a. Must be dispute as to liability or amount (formal lawsuit not required) 3. Can't call other party who settled w/as witness to prove liability, but can use settlement offer to show bias of witness a. If judge lets it in for bias, request a limiting instruction b. Some jurisdictions let you use info from settlement negotiations to impeach witness' prior inconsistent statements c. In criminal trial, if admitted guilt in plea negotiations, it can't be used to impeach the witness (Udeagu) 4. Just because something was brought up in settlement negotiations, it's not excluded if it was otherwise discoverable c. Payment/offers to pay medical bills -409 1. Policy = encourage benevolence 2. Only excludes offer to pay; any accompanying statements/admissions of liability may be admissible! d. Liability insurance -411 2. Criminal cases -can't introduce to prove guilt a. Withdrawn pleas or statements made during plea negotiations -410? 1. Policy = encouraging open communication to clear up dockets 2. Plea negotiations only encompass prosecutor or his agent, i.e. someone who had authority to make a plea agreement 3. One person's statements made in plea negotiations may be used against someone else 4. Criminal can knowingly & voluntarily waive these protections C. Character Evidence 1. Inadmissible to prove that a person acted in conformity with his character on a particular occasion -404(a) a. Exceptions: 1. If criminal offers evidence of his good character for propensity purposes, π may offer character evidence in rebuttal -404(a)(1) a. In most juris, applies only in criminal cases (Ginter) b. In some juris, can admit propensity evid. in civil cases which are akin to crim cases 2. If criminal offers evidence of the victim's character, π may offer character evidence in rebuttal (e.g. in selfdeffens cases) -404(a)(2) a. Victim's violent outburst outside courtroom may be admissible to show ’s violent propensity pr his state of mind at time of incident, bolstering 's self-defense claim (Keiser) 1. 's knowledge of victim's propensity to violence isn't required 2. Such evidence may only be presented as reputation or opinion evidence, NOT specific acts a. Can use specific acts if it’s an element of the charge b. In homicide case, if offers evidence that victim was first aggressor, π may rebut with evidence of victim's peaceableness (Hicks) 1. 's mere mention of victim's nature in opening statements didn't constitute introduction of character evidence at trial 3. Evidence of the witness's character may be used to show truthfulness/untruthfulness -404(a)(3) **** Note: rules are relaxed in bench trials (Moorhead) b. Rule 404(a) doesn't apply if character is an element of the claim or defense 1. If character is in issue, Rule 405 provides that it may be proved by evidence of opinion, reputation or specific conduct 2. Examples a. Criminal -entrapment b. Civil -negligent entrustment, defense of truth in defamation action 2. Person's conduct/state of mind can't be proved circumstantially by use of character evidence a. Character evidence may be circumstantially used to prove something other than conforming conduct 1. Admissibility of such evidence is determined by Rules 401-403 b. in criminal case may offer evidence of his good character to support an inference that he acted in conformity with that good character & so didn't commit the crime "Putting character in issue" 1. Character evidence must relate to a character trait pertinent to the charge a. Family man -no b. Law-abiding -yes, but leaves the door wide open for rebuttal questions about any character trait c. Good moral character is a pertinent trait in criminal cases d. Honesty -yes in bribery/receiving stolen goods, but not in drug dealing or agg. assault e. Truthfulness, yes in robbery, burglary, theft, perjury & insanity defenses, but not in assault, kidnapping or carrying a concealed weapon 2. may offer the character evidence through witnesses, but may not offer evidence of specific acts 3. π may then rebut the evidence by: a. Cross-examination of 's witness b. Calling rebuttal witness for π 4. 404(b) test (Jones): a. Evidence must be relevant to an issue other than the 's character b. Sufficient proof for jury to find that committed the extrinsic act c. Probative value of evidence can't be outweighed by undue prejudice (Rule 403) 5. Witness who testifies to 's good reputation may be questioned about 's prior criminal acts on cross, but only to the extent the impeaching questions have a substantial impact on the witness' credibility (Wooden) a. Impermissible to ask guilt-assuming hypos of witness who testified re: 's good character, because this strikes at the heart of the presumption of innocence 3. Communicated character evidence -'s knowledge of victim's violent character contributed to 's reasonable belief that the use of immediate force was necessary to protect himself a. Rule 404(a)(2) not implicated because character evidence is being used to show 's state of mind, not victim's conformity to character 4. Evidence of other crimes/wrongs is inadmissible to show conformity with character, but may be admissible for other purposes (e.g. proof of motive, opportunity, intent, knowledge...) -404(b) a. Danger that jury will use evidence to convict because he is a bad person is limited by: 1. Rule 404(b)'s command that such evidence only be admitted for a non-character purpose 2. Rule 402's relevancy requirement 3. Rule 403 4. Use of limiting instructions to the jury (Rule 105) b. Other wrong need not have been criminal 1. May also have occurred after incident in issue 2. Evidence of prior drug use generally not sufficient to show motive without: (1) proof of significant habit; (2) proof of insufficient financial means to support that habit c. Admissibility of evidence of other crimes is a question of conditional relevancy, which is governed by Rule 104(b) 1. May even apply to prior acquittals, because standard of proof governing admissibility under 404(b) is preponderance of evidence 2. Mere evidence of arrest, without any showing of the underlying act/circumstances, isn't probative of intent, knowledge, etc. under 404(b) d. Evidence must bear on an issue in the case 1. Some courts require clear articulation of how the other crimes evidence fits into a chain of logical inferences 2. Generally, can't offer to stip to an element of the crime merely to prevent π from presenting evidence of other crimes e. Most probative when primary issue in dispute is party's state of mind f. May be used to illustrate modus operandi theory crime/perpetrator share distinctive characteristics that evince a "signature quality" 1. Applicable only if identity is an issue a. Can't rely on inference based on mere character (Jones) 2. Reviewed under abuse of discretion standard a. Error is harmless when there is overwhelming evidence of 's guilt g. Must be balanced under Rule 403: 1. Strength of the evidence of the other crime 2. Need for the evidence a. If π can do without this extrinsic evidence, or show it via alternative means, it should 3. Proximity in time of the other crime a. If 's witnesses testify to knowing him for 30 yrs. & testified on direct that he was arrested 20 yrs. earlier, cross about 's arrest 27 yrs. before trial isn't too remote (Michelson) 4. Degree of similarity of the other crime 5. The efficacy of a limiting instruction h. In criminal trials, upon 's request, π must give reasonable notice of any other crimes evidence to be introduced 5. Character may be proved by reputation, opinion, or specific instances of conduct -405 a. Ways character may be relevant: 1. Character in issue -person's character is a material fact that under the substantive law determines the liabilities & rights of the parties (Dahlen) a. Character is an element of offense (rare) b. Claim of self-defense doesn't put character in issue, but 's knowledge of victim's aggressive character may be admissible 2. Character used circumstantially to prove conduct a. Most common, but generally inadmissible under Rule 404(a), with 3 exceptions b. Circumstantial character evidence may only be shown via reputation or opinion, NOT by specific instances of conduct 1. Specific instances of conduct MAY be addressed on cross of a reputation/opinion witness only to test the knowledge/credibility of the witness a. Phrased by asking witness: "Have you heard" 1. If witness answers "No," the extent of his knowledge is called into question 2. If witness answers "yes," the witness' standard for characterizing a reputation as "good" is challenged b. Limitations to prevent the danger of prejudice inherent in inquiry into specific bad acts of on cross of character witness: 1. π must have good faith, factual belief that incidents inquired about are of a type likely to become a matter of general knowledge/reputation in the community 2. Incidents inquired about must be relevant to character traits involved at trial c. Reputation/opinion witness must be qualified by showing sufficient acquaintance with the: 1. Person about whom he's testifying 2. Community in which he's lived/worked 3. Circles in which he's moved ****** Negative reputation evidence after the incident is generally tainted by gossip!! d. Some courts hold that where the central issue in a civil case is akin to a criminal case, character evidence may be admitted 6. In a negligent entrustment case, because the competence & fitness of the driver are issues of fact, evidence of prior specific acts are admissible re: the drivers [in]competence & the employer's knowledge of that [in]competence (Maynard) 7. In its case-in-chief, π may introduce evidence of 's nickname only if it would aid in the identification of the or it directly relates to the proof of the acts charged a. Nickname suggesting bad character & testified to by policeman implies was involved in criminal activity & is more prejudicial than probative (Williams) 1. Gov't can't offer propensity evid in its case-in-chief, even in criminal trials D. Forms of evidence: 1. Spoken testimony 2. Writings 3. Tangible objects 4. Demonstrative F. Formula: 1. B Best Evidence -1000s 2. A Authentication -900s 3. R Relevance -400s, 600s, 701-04 4. P Privilege -state law 5. H Hearsay -800s G. Motion in liminie -used before trial to keep out evidence 1. Can also use it to get evidence in, but then the other side is warned of your case H. Objections to form of evid -1. How question is phrased a. Can't lead on direct, but should lead on cross 1. Policy = direct witness is recounting her own experience, so lawyer shouldn't have to lead b. Repetitive use of leading Qs causes opponent to object & look to jury like he has something to hide c. OK to lead in preliminary matters or in order to develop testimony (e.g. of a child, hostile witness, or opposing party/anyone identified with him) d. McKenna -cross is limited to the subject matter of direct & to matters that affect the witness' credibility 2. Making objections to preserve error -can either make objection in open court or ask to approach bench & make objection outside of hearing of jury a. Objections must be timely 1. Before question is answered OR 2. If answer is objectionable; object immediately & move to strike a. Can't move to strike question only because it's not evid. b. If witness blurts out answer to question before you can object, note "for the record" that you object b. Continuing objection -objection to entire line of questioning; no need to object to each question c. Need to be correct & specific about reasons for objecting d. If objection is sustained, attorney can enter an "offer of proof" indicates to court reporter what evidence would've shown 1. Jury leaves so witness can testify 2. Production of written statement from witness 3. Make it part of record to preserve for appeal I. Competency 1. Established if (very low threshold): a. Witness takes & understands oath or its equivalent b. Witness perceived (firsthand) something important to the case c. Witness recalls & can communicate what she perceived d. Exception: Dead Man's Statutes 1. Can't testify about communication/transaction with dead or insane person 2. Child witness must understand what it means to tell the truth & the importance of it 3. KEEP COMPETENCY & CREDIBILITY SEPARATE 1. Fact that kid lied a lot in the past DOESN'T affect competency jury will assess credibility a. Judge determines admissibility/competency b. Jury determines weight of evidence/credibility II. Relevancy A. Requirements -401: 1. Goes to a fact of consequence (look to substantive law) a. Relates to element of claim or defense OR b. Relates to witness credibility 2. Probative value -Makes that fact of consequence more or less probable a. Baseline = does the evid have ANY tendency to make the FoC more/less probable than without the evidence? B. Inquiry: 1. What is the evidence offered to prove? 2. Who is offering it? 3. What form is it in? C. Conditional relevance -104: court allows you to promise to connect evid together later in trial 1. If you don't follow through, judge will strike it & be very mad D. Even if evid. is relevant, can still argue it's prejudicial 1. Low probative value 2. Danger of jury giving it greater inference than warranted E. Doesn't have to be fact in dispute to be relevant background info OK F. Limitations: 1. 403 -relevant evid may be kept out if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or that it's wasting time or is cumulative a. Balance weighted in favor of admissibility b. Discretionary! III. Expert evidence -A. Demonstrative evidence/experiments -can't make it too similar to actual event, but must conduct test under conditions as close as possible to actual event B. Re-enactment -must be almost identical 3 uses for character evid: 1. propensity inference person acted in conformity w/their trait a. Only comes in in civil cases in jurisdictions with the "akin to criminal cases" rule 2. Non-propensity inference -always comes in in civil cases a. Intent b. State of mind -admissible in civil or criminal cases 3. character is "in issue," i.e. is an element of claim or defense a. Admissible in civil or criminal cases witness can only testify to things they have firsthand knowledge of policy = character evidence is excluded not because it's irrelevant, but because of the danger of unfair prejudice Criminal can get in propensity character evid because it tips the balance in his favor a. State can rebut with contrary character evid b. NOTE: in some jurisdictions, evid of good character alone is enough to create reasonable doubt π can't admit propensity evidence of her own good character (Moorhead was wrong!) Dahlen -evid of π's prior violence used to go to 's state of mind a. Way to get in pertinent character trait of victim b. Only allowed in jurisdictions which allow propensity evid in civil cases akin to criminal cases c. Can only talk in generalities for propensity purposes Q: Can you win the case without proving the fact/evid? A: If not, the fact is essential & should be admitted Michelson -in criminal case can offer evid of his good character for propensity purposes cross of character witness can test his knowledge of 's reputation, e.g. "Did you know was convicted of rape?" a. If not, you're a bad character witness b. If so, you're a liar can only introduce propensity character evid by reputation or opinion testimony a. Policy = efficiency b. Once character evid is in for propensity purposes, you can test it on cross by specific instances of conduct c. Propensity evid must be re: pertinent trait & on cross you must confine it to specific acts that test the witness' knowledge about the trait they testified to 1. Prosecutor must have good faith belief that incident really happened & that it was the type of incident the witness should've known about a. Policy = cross is designed to test the accuracy/credibility of the witness & can't be used for a fishing expedition Keiser -when introducing evid of victim’s violent nature for propensity purposes, 's knowledge of that propensity is irrelevant a. It would be relevant if being offered to show 's state of mind b. If specific act occurred after incident, it can't be offered to show state of mind If put on propensity evid, π can: a. cross 's character witness about specific acts b. use its own character witness to rebut 's witness (but testimony would be limited to opinion/rep) 404(b) -non propensity character evid must actually be something that's a genuine controversy, i.e. "in issue" Jones -can use character evid to show identity? For propensity purposes, may put on evid of pertinent trait of or victim in order to even out the scales a. π can put on propensity evid of homicide victim IF puts on evid that victim was first aggressor Four ways propensity character evid may come in: 1. "In my opinion, F is a lying SOB" 2. "I know F's rep in the community & he has a rep for being a lying SOB" 3. "F is a lying SOB" -improper form 4. "I saw F & my wife outside the motel, but F later denied it" -improper form In GA, can use character evid in civil cases if charge is based on criminal case or moral turpitude 404(a) is only for propensity purposes 404(b) applies to all bad acts, not just prior acts or criminal acts -generally used only for rebuttal -identity: use prior bad acts it show ID via illustrating a signature/modus operandi to crime OR to connect a person to the scene -bad act has to connect up to what’s at issue in the trial Hearst -evid of subsequent criminal activity offered to prove absence of duress is OK because it goes to the weight of the evid., so the jury can sort it out Old Chief -agreed to stip to fact that he’s convicted felon; gov’t wanted to submit evid. of crime he was convicted of court holds that gov’t had to accept stip because it want to ’s status if there’s any non-propensity purpose, it doesn’t have to be labeled under 404(b) -e.g. only needs to be enough evidence that the jury could’ve found it was said -have to give other side notice so they can try to keep it out or minimize its impact _ can be intorduced by specific acts, npt just opinion/rep habit = particular response to a particular situation -admissible because of its high probative value -most commonly comes up in business practices -Is the conduct the type that could be a habit? -Is there enough evidence that the person in issue possessed the habit? -the more specific/regular/semi-automatic it is, the more likely it is to get in Halloran -conduct can constitute a habit if you can show enough instances of it & is in complete control of all the circumstances e.g. 30/50 -no 50/50 -yes Counterargument = conduct involved too much of a volitional-thinking process Rule 412 -Rape Shield statute -eliminates CL tradition of interrogating rape victims about their sexual past -probative value is so low & harm is so high -applies in civil or criminal cases EXCEPTIONS: In crim cases: 1. prior sex between the victim and the accused to show consent 2. showing an alternative source of semen or injury 3. ’s constitutional right to fair trial would be compromised In civil cases -only if its probative value outweighs the risk of prejudice to any party & harm to the victim ** balance is against admissibility R 413-15 in child molestation and sex crime cases, OK to introduce prior sexual conduct/propensity evid. of accused in federal trial authentication -act of proving something is what you say it is -real evid. If offered to prove this is THE OBJECT used -may need a chain of custody or show that it’s in substantially the same condition -demonstrative evid. fair & accurate representation of what it purports to illustrate & helpful to jury -handwriting -must be familiar with it before litigation a. Different for voice ID? -xray or complex genetic evid. -machine working the way it was supposed to and was operated by someone who knew what they were doing & evid. not altered -authentication by context? 902 -self authenticating (birth cert., gov’t records) Best evid. only applies when you’re trying to prove the contents of a writing -if you don’t have the original, ask if the duplicate is adm. -if you don’t have the original, & its production is excused under 1004, you can introduce any type of secondary evid. -2 ways it comes into play: (1) substantive law says you need to see what’s in the writing (e.g. K, will) (2) as a tactical choice, party decides to prove an issue through a writing (although other means are avail.), so have to produce actual docs -if evid. too voluminous, can sometime introduce summaries a. all underlying docs must be admissible & made available to opponent 701 -lay witness can give opinion as long as it’s rationally based on her perception & helpful to jury -OK to testify re: ’s intent 602 -lay witness must have personal knowledge -applies to opinions & factual testimony -rare for a judge to not let in an opinion because it’s not helpful ultimate issues problem = jury must necessarily decide it to decide case -relates to an element of the case -law witness or expert can give an opinion on an ultimate issue IF it’s helpful to the jury -Can’t say “In my opinion, you should find negligent” -If too much legal terminology used, less likely to be admissible can be an expert based on knowledge, skill or education -kind of knowledge you need depends on the type of testimony you’re going to give, so watch how you characterize it 1. Qualify expert 2. Will expert opinion help the trier of fact a. Not helpful if it’s unreliable b. Not helpful if issue is one of common knowledge 3. Unlike a lay witness, expert can base her opinion on any type of info that’s reasonably relied upon by other experts in her field a. The evid. it’s based on doesn’t have to be adm. 4. Don’t have to ask expert how they came up with the opinion, just what it is to the extent the evid. relied upon by the expert is inadm., you can’t get in the inadm. evid. thru the expert unless its probative value in explaining the expert’s testimony is not outweighed by its prejudicial effect. Daubert -expert testimony must be reliable & relevant Balancing Test -1. Can it be tested? 2. Peer review 3. Potential error rate 4. Extent of acceptance within the scientific community 5. Standards governing the methodology ***This test has actually made it more difficult to get expert evid. in Kuhmo -Daubert factors may be used to assess non-scientific evid. -language of the rules includes “other knowledge” -no clear line between “science” and “other” -std. of review = abuse of discretion Judge can decide if application of methodology is too unreliable for the jury to get it in Ways to keep expert out: 1. Not qualified (either generally or because the opinion goes beyond their expertise) 2. Not helpful a. Common knowledge b. Reliability 1. Methodology 2. Application of methodology c. Not relevant tot he facts of the case 3. Stating a legal conclusion Collins -math probabilities were applied incorrectly and distracted the jury (403 problem) -evidentiary foundation problem because they pulled the stats out of the air can get in expert opinion of ultimate issue IF expert isn’t telling the jury how to decide the case or isn’t stating a legal conclusion -experts can give their opinion right up to the line, e.g., “Did X conform with the standard of care” is OK, but “X was negligent” isn’t!! -exception: 704(b) in criminal case, expert can’t give opinion on whether had the requisite mental state -OK to generalize about what other people can do lay opinion comes in if it’s rationally based on the witness’ perception & is helpful to the jury -not helpful if so many underlying facts were already laid out for the jury to make its own inference lay or expert witness can give an opinion on an ultimate issue but can’t give mere legal conclusion or use legal terms of art judge is the gate keeper to make sure the expert is minimally qualified -his opinion must be relevant & reliable (in methodology & application to current case) -if his opinion falls within the range where reasonable experts would differ (credibility issue), judge has to let it in IF IT’S NOT BEING OFFERED TO PROVE THE TRUTH OF THE MATTER, IT ISN’T HEARSAY!! underlying idea = we want the speaker on the stand talking about what they know, so we can cross-examine them -absence of speaker at trial makes it difficult for the jury to determine: 1. if the speaker misperceived the event 2. If the speaker had a faulty memory 3. Can’t test the sincerity of the speaker 4. Narrative ambiguity -can’t find out what the hearsay witness really meant reliability problems of statements make them excludable -“ out of court stmt” means in this court, right here, right now -declarant has to be a person ***Key question = do you need to have the declarant on the stand for cross in order for the statement to be probative THREE THINGS THAT AREN’T HEARSAY: 1. Independent legal significance/Legally operative words -irrelevant what the speaker meant, fact that he said is in what’s important a. As long as there’s evid. that the jury COULD believe that the declarant said what the witness said he said it gets in -doc can be hearsay because it’s a written assertion -includes words spoken to create an agency relationship -verbal parts of acts have legal significance -Anfield -in perjury trial based on inconsistent stmts to the grand jury, not hearsay at trial because it’s going to prove the perjury, not the truth of what’s inside the stmts a. It’s not hearsay if, in a perjury or slander case, it’s just offered to prove that you said it, not that it’s true 2. Stmts which put someone on notice -Vinyard -evid of pervious complaints of slippery surface not hearsay because it was only offered to prove had notice -key = is it the kind of thing that would tell a reasonable person to investigate? 3. Evid. offered to show its effect on the listener’s or on their state of mind -to prove committed manslaughter, testimony that wife had affairs isn’t hearsay because it’s not offered to prove that she did, just its effect on ’s state of mind -Betts -stmts of child to foster mom that step-dad killed her brother & would kill her mom too not hearsay because offered to prove the mental state of a child in custody proceedings If it’s only probative if it’s true, it’s hearsay!! -doesn’t matter if the listener believed it was true unless we’re offering it to show that the listener’s belief is correct Assertions: 1. Conduct -nothing is an assertion unless the declarant is consciously doing an act intended to convey a particular message a. Common signals, e.g. nodding head b. Physical responses to questions -e.g. pointing to robber c. Conduct used as code -e.g. thumbs up means I have my own ride -low risk that someone is lying when their conduct is non-assertive 2. Words a. Express assertions -saying exactly what you mean b. Implied assertions -make a point by implication, so long as the implication is one a reasonable person would understand is being made -Stephenson -cop asks woman to give him the clothes wore on the nite of the murder woman says nothing, but hands over blood stained shirt = hearsay -silence may sometimes be an assertion if a reasonable person would be expected to protect that the stmt was wrong/untrue -res gestae -gets in even though it’s hearsay to explain what happened -machines & animals can’t be declarants -if you can come up with another thing it’s being offered to prove (that makes a difference to the case), you can overcome the hearsay obj. 801(d) -statutory exemptions 804 -unavailability exceptions 803 -general exceptions theory = there’s enough indicia of reliability that it’ll come in THREE HEARSAY EXEMPTIONS: gets in as substantive evid. if testifies & is subject to cross 1. prior inconsistent stmts. always OK to impeach, but problem when you’re trying to get it in for substantive purposes To be non-hearsay & substantive: 1. Declarant must be testifying at trial & subject to cross about the stmt 2. Stmt must be inconsistent with the declarant’s trial testimony a. Any important difference = inconsistency b. If witness claims not to recall, judge must determine whether she’s lying; if he believes her honest lack of memory, her prior stmt isn’t inconsistent 3. Stmt must’ve been given under oath at prior trial/hearing where it’s the norm to make a written, verbatim record, swear the witness & take testimony 2. prior consistent stmt -not allowed in just to bolster witness’ credibility a. If there’s an implication/charge that witness fabricated his testimony or has an improper motive AND the prior consistent stmt was made before the alleged motive to fabricate, it can come in to rebut the charge that he made it up 1. Look at the tone of what’s being said on cross 2. In GA, if declarant testifies, his own out of ct. stmts aren’t hearsay 3. prior ID -must have declarant avail at trial & subject to cross & perceived the person they ID’d -in criminal trials, you have the right to confront witnesses, but all you get is an opportunity for cross, it doesn’t matter if it doesn’t turn out favorably for you -under hearsay rule, lack of memory doesn’t prevent from being subject to cross all you have to do is be under oath & answering questions NO implied assertions by conduct must be express because an implication drawn from conduct can be unintentional/unreliable Confrontation clause (6th Amd.) -in all criminal proceedings, the accused has the right to confront witnesses against him a. Allows for truth-testing b. Lets jury see demeanor of witness -no conflict with enumerated hearsay exceptions because these exceptions are firmly rooted in history & have sufficient guarantees of trustworthiness, so no need to cross a. 807 is only possible problem 801(d)(2) -if your opponent said it, he needs to live with it * who is offering it is key can only be offered against a party on the other side -does not need to be incriminatory Types: 1. Adoptive admission (Beckham) -very narrow category -adopts stmt thru his actions, making it an admission by party opponent a. Jury can decide credibility -Look at context!! a. Did the party hear the stmt they’re allegedly adopting? b. Was it within his knowledge? c. Was it the kind of situation where he was likely to respond in a particular way? 2. Admission by authorized agent -what an attorney says may be an agency admission against his client a. Doesn’t apply to alternative pleadings or info & belief b. Binding judicial admissions -can’t offer contrary evid. (e.g. complaint, answer or request for admissions) c. Evidentiary admission -person who made the statement can give contrary evid (e.g. interrogatories, motions) 3. Admission by employee/agent re: matter within the scope & existence of their employment/agency a. doesn’t matter to whom it was said or where, so long as it’s within the scope of employment -while declarant doesn’t have to be named in the suit, a party can only offer his stmt against an opponent -guilty pleas are considered party admissions when offered in the corresponding suit a. Nolo & convictions don’t count -doesn’t matter who the stmt hurts or helps, just that it’s made by a party opponent 4. co-conspirator adm -one conspirator can speak for the while group a. Must prove the existence of the conspiracy b. Must prove the stmt was made during the conspiracy c. Must prove the stmt furthered the conspiracy (conspiracy ends at arrest) -Bourjaily -judge must find by preponderance of the evid. 1. Can use the stmt itself as evid. of conspiracy, but need more 2. Conspiracy doesn’t actually have to be charged a. If the state wants to admit the stmt, they can’t charge all coconspiirator together because it’s a violation of the confrontation clause to admit a confession which inculpated a co-& a limiting instruction would be insufficient (Bruton) 804 -most difficult to get in under because declarant has to be unavail. a. not as reliable as the 803 exceptions -unavail. if: 1. Witness is claiming privilege against testifying a. Must claim privilege at trial & it must be adjudicated that the privilege exists 2. Witness has lack of memory re: subject matter of stmt a. If you can remember generally what happened, but not the specifics, you’re probably not unavail. 3. Death or physical/mental illness a. But, you’d probably take the depo of a sick person 4. Witness isn’t at trial & opponent can’t get him there via subpoena or other reasonable means Rule 804 exceptions: 1. Former testimony at another hearing, trial, or depo comes in if the party against whom it’s offered (or in a civil action, the predecessor in interest), had an opportunity & similar motive to develop the testimony a. Policy = stmt was under oath (truthful) & the other party had a chance to test its truth b. Exculpatory grand jury testimony doesn’t come in because the prosecutor didn’t have the same motive in grand jury (probable cause) as in trial (beyond a reasonable doubt) c. Conflicting views of predecessor in interest: 1. Narrow -only if the substantive law says you are 2. Broad -encompasses those with similar motive to develop testimony (majority view) d. In depos, as a tactical matter, you may not want to cross the witness to you can spring the question on them later at trial you still had an opportunity for cross 2. Dying declarations -comes in if declarant believes her demise is imminent & stmt concerns the circumstances of her death a. Comes in even if declarant didn’t die, so long as she believed she would b. OK in civil trials for any purpose 3. Stmts against interest -made by a non-party a. No need to be party opponent b. Must be against interest when made!! c Reliable because you wouldn’t have said it if it weren’t true d. Stmt may be self-serving and mostly neutral to speaker (Williams) 1. Only the parts against interest are admissible, so the stmt must be severable 2. Entire stmt is inadmissible if it’s too intertwined e. Need corroborating evid. if it’s a stmt against interest offered to exculpate a criminal 1. Burden on criminal is higher than state’s burden 2. Factors relevant to trustworthiness: (a) relationship between and declarant (b) timing of stmt & party to whom it was made (c) whether there’s evid. that the stmt was made to curry favor with the authorities 803 exceptions -unavailability not required 803(1) -Present sense impression -describes/explains any event prompting it, made while declarant is perceiving it or substantially contemporaneous to it a. Trustworthy because no time to fabricate b. Talks about what IS happening, not what happened 803(2) -Excited utterance -relates to a startling event/condition & made while declarant was under the stress of the event a. Policy = reliable because no time to fabricate b. No contemporaneousness requirement; several hours gap may be OK so long as declarant was in a continuous state of excitement 803(3) -Then existing mental/physical/emotional condition a. Reliability comes from the fact that you’re saying it while you’re feeling it b. The more backward looking it is, the less likely to be adm. c. Doesn’t cover stmts concerning the cause of the feelings because that’s in the past d. Includes stmts of intent to do something in the future ______________________________________________________________________________ ________________ hearsay analysis: Is it hearsay -if not, STOP -if yes: Can it get in under any of the 801 exemptions (prior inconsistent, prior consistent, prior ID)? -if yes, STOP if not: Can it get in under 803? -if yes, STOP if not: Can it get in under 804? -if yes, STOP if not, it’s inadmissible hearsay ______________________________________________________________________________ ________________ 807 -catch all exception (rare for evid. to come in under this) 1. Must first give notice to other party 2. Must be circumstantial guarantees of trustworthiness (text 604-6) 3. Must be more probative on point for which it’s offered than any other evid. which the party can get 4. Getting it in serves the interests of justice 806 -hearsay declarant can be impeached like any other witness Stmts for medical diagnosis/treatment a. Describes medical history b. Describes past/present symptoms c. Generally explains what caused injury as long as it’s reasonably related to diagnosis 1. Doctor doesn’t need to know how you fell, just that you twisted your ankle (Rock) d. Stmt doesn’t have to be made to doctor & doesn’t have to be made by patient herself e. OK even if doctor is retained solely for purposes of litigation f. Policy = people don’t lie to their doctors because they want to get well state of mind (offered for its truth) -must be relevant/in issue a. Stmts under past tense don’t come in; present or future tense do -shows declarant intended to do something & acted in accord with that intent/followed through with his plans (Hillmon) -Rule 403 is always a check (text 675) -no backwards looking stmts (Shepard) a. This was actually a past act by someone else Business records -can’t get in contents until you get the actual report into evid. -part of regular business activity a. Reliable because people make business decisions based on the contents of these records -made contemporaneously with event -person making record has firsthand knowledge of info going in -if it incorporates stmt by someone not under business duty to report, may have a double hearsay problem & need to find another exception (e.g. social worker reports that mom said kid was burned) -doesn’t come in if opponent can show: 1. Lack of trustworthiness of source 2. Lack of trustworthiness of circumstances surrounding prep 3. Report was written in anticipation of litigation 4. Report was made by someone with an interest in the outcome of the litigation Public records -policy = assume public servants do their jobs well & without bias -matters observed or factual findings (in crim cases doesn’t apply to police officers/law enforcement personnel due to confrontation clause problem) -Factual findings encompass the opinions/conclusions based on those findings, provided they’re trustworthy (Beech Aircraft) 612 -Present memory revived if witness doesn’t remember, try to jog their memory (Baker) -not evid itself, just an aid but other side gets to see it & might enter it into evid. to call your bluff 803(5) -past recollection recorded -if witness’ memory can’t be jogged, but witness made a record at or near the time of the event about something they had knowledge of, when the matter was fresh in their memory -OK to read it into evid. but it’s not received as an exhibit -e.g. Chris’ evaluation was adopted by him because he signed it Learned treatise -written by authority in field & relied upon, so it’s trustworthy -content can be used if it’s called to the attention of an expert witness on cross OR if the expert relied on it during direct AND if it’s recognized in the field or by judicial notice as a reliable authority -read into record if used as substantive evid. when witness takes an oath, their credibility is automatically called into question -must always have a good faith basis for asking questions extrinsic evid. = anything other than the testifying witness’ stmt impeach witness’ character for truthfulness by: 1. Use a form not covered by the Rules: a. Perception (e.g. not wearing glasses) b. Memory c. Communication (i.e. not saying what you mean or don’t understand what you said) -cant imply witness is lying due to religious beliefs -can only use evid. of drug addiction if you can show it affected their perception/memory d. Bias 2. Criminal convictions -applies to any witness a. Relevant because if he broke the law before, he’s likely to do it again b. Presumption of adm if release of? conviction is over 10 years old c. applies to serious crimes & crimes of dishonesty 1. Can introduce extrinsic evid. d. can’t appeal a judge’s denial of ’s motion in liminie to keep out a prior conviction (Luce) e. If makes a tactical choice to bring out conviction on direct in order to take the sting out of it, cant appeal a motion in liminie ruling (Ohler) Spectrum: Crimes clearly deceptive Gov’t must satisfy Crimes not clearly deceptive always comes in balancing test always stays out 3. Prior bad acts to go to truthfulness -can get in the act, but not the fact of arrest/charges a. Cant introduce extrinsic evid. ; must accept what witness says 4. Character witness as to truthfulness a. Must be rep (familiar with community) or opinion (enough interaction with ) witness b. Once rep/opinion testimony is given, witness can then be crossed re: specific acts c. Witness’ character for truthfulness must’ve been attacked? d. Cant introduce extrinsic evid. ; must accept what witness says collateral = doesn’t go directly to any element of case?? policy = prevent mini-trials?? -for prior bad acts/contradiction on a collateral matter -Cant introduce extrinsic evid. ; must accept what witness says If there’s a conflict as to whether to use evid. under 608 or 609, 609 controls if it’s a conviction under 609, you cant prove it with prior bad acts under 608 a. Cant give details of conviction, just name of crime, when/where conviction was imposed & length of conviction prior inconst stmts -when used as impeachment, must go to untruthfulness a. Stmts just need to differ from each other b. Technique: impeachment by omission (i.e. made stmt earlier, but left out key details if it was true, you would’ve said it upfront) c. Inability to recall is inconsistency only if the judge believes you d. If you want to introduce the actual prior stmt as extrinsic evid., you have to give the witness an opportunity to explain/deny it 1. If you’re just asking about it, you don’t need to show the witness the stmt, but you have to show it to opposing counsel upon their request e. Ways to contradict witness: 1. If witness is on stand, get her to contradict earlier testimony 2. Put on other contradicting evid. if testimony isn’t re: collateral matter, you can probably use extrinsic evid. -if a collateral matter destroys the credibility of a witness’ entire testimony, the judge has discretion to allow extrinsic evid. ***be careful in direct because you can open the door to things on cross!! bias = relationship which leads witness to lie/mislead -e.g. belonging to a prison gang goes to bias; no need to show he adopted all tenets of group, just that he belonged (Abel) -bias is never a collateral matter, so you can always use extrinsic evid. to impeach a. Most courts require that you first question witness re: bias -bias alone isn’t an attack on credibility rehabilitation = repairing the harm to witness’ credibility calling a character witness on cross is OK only if witness was attacked (within court’s discretion) -cant use prior const stmts to bolster testimony a. OK to use if witness is accused of lying now? b. Not same criteria for impeachment as for substantive, i.e. doesn’t have to be premottiv to fabricate Rule 106 -Rule of completeness -stops lawyers from giving jury only 1/2 of the story/misconstruing evid. -e.g. if attny reads stmt from depo out of context & leaves jury with wrong impression, opponent can ask judge to have the attny read it in context 803(8) -in crim cases ministerial tasks (breathalyzer reading) get in because no stake in the outcome??? Privileges -strictly construed because they keep relevant evid. from jury -not in Rules -state law of privileges governs in diversity actions; federal CL governs in Federal Q cases 1. Spousal privileges a. Confidential communications -any confidential communication with spouse during marriage 1. Policy = protect sanctity of marriage 2. Extends past divorce 3. Recognized in all states b. Testimonial -witness-spouse has right to testify or not against defendant-spouse (Trammel) 1. Policy = if spouse is willing to testify, marriage isn’t worth saving anyway 2. Doesn’t apply after divorce c. Exceptions 1. Neither privilege applies if one spouse is charged with a crime against the other spouse or a crime against the minor child of either 2. If spouses are joint-participants in future or on-going criminal activity, confidential communications privilege doesn’t apply a. Policy = effective law enforcement b. Doesn’t apply to past crimes or stmts made when conspiracy is over c. Circuits are split on whether the testimonial privilege applies to joint-participants 1. Some say that marriage of criminals isn’t worth saving 2. Some say that marriage may be solid despite criminal activity 2. Attorney-client -applies to all confidential communications necessary for giving legal advice on the matter for which legal advice is sought a. Client may choose to invoke it or waive it b. Policy = allow attny to have all relevant facts to prepare case c. fact that you consulted attny, how much you paid or other collateral issues aren’t covered d. If client asks accountant to explain it to her attny, it’s privileged? e. Disclosures to spouse or codon’t destroy privilege f. Person must have reason to believe the attny is actually going to represent them before privilege attaches g. Exceptions: 1. Crime-fraud -client cant use attny to commit/facilitate future crime/tort 2. Waiver -final & for all purposes; cant be revoked a. Disclosure to third party (purposeful or in situation where privacy not expected) b. Express c. accident -circuit split 1. Some hold privilege is waived if not zealously guarded 2. Some hold that the privilege remains if reasonable precautions were used/attempts were made to rectify Corporations -a. Control group test -any employee who has ability to control decision can invoke privilege b. People attny needed to talk to factors: -scope of employee’s responsibility -did employee know he was being consulted for purposes of giving legal advice? -did employee know it was supposed to be confidential? -Did corporate higher-ups initiate attny consulting with low-level employees? -Did the corporation keep it confidential (i.e. no internal memos) work product priv -attnys mental processes are most likely confid. in shareholder derivative suit -priv doesn’t apply if π can show good cause to access communication] physician-patient priv -covers all communications made for purposes of medical diagnosis/treatment -waived to the extent you put your medical condition in issue -extends to psych & licensed social workers (Jaffee) 501 -courts can define new priv by interpreting the CL in light of reason & experience Priest-penitent -should be free to get advice/solace from your spiritual counselor a. must show it was confid & that it was in their capacity as spiritual advisor priv against self-incrimination -civil or crim -fed or state -any witness at any time the gov’t tries to compel testimony -only person to whom it belongs can raise it judicial notice -some things are so indisputable or some sources so unimpeachable that the judge can just take notice they exist -sua sponte or at party’s request -fact can’t later be disputed at trial