Evidence - Milich Fall 2003 Page 1 of 93 Evidence I. Background Information A. Trial Stage 1. Lawsuit has survived challenges to arrive at trial. i. Summary judgment 2. True disputes are reserved for trial. 3. Trial Components i. 1 – Pick Jury a. Voir dire – put the jury on their oath and ask them fundamental questions. ii. 2 – Opening Statements a. Nothing that lawyers say at this point is evidence. b. Lawyers are not allowed to disclose information that they do not reasonably believe will be admissible at trial. c. Lawyers are not allowed to argue at this point d. Essentially, this is the ―movie preview‖ or ―teaser‖ iii. 3 – Direct Examination of Prosecution Witnesses iv. 4 – Cross-Examination of Prosecution Witnesses v. 5 – Re-direct Examination of Prosecution Witnesses if needed vi. 6 – Re-cross Examination of Prosecution Witnesses if needed vii. 7 – This can go on. viii. 8 – Prosecution rests. ix. 9 – Sufficiency Challenge x. 10 – Defense Witnesses as #3-7 above xi. 11 – Drafting of jury instructions. xii. 12 – Closing Arguments a. Where counsel is allowed to argue their case to the jury. b. Most attorneys start with a closing statement in forming their case. c. Work backwards to fill in the blanks. d. The only real rule about closing statements is that you cannot argue anything that has not been admitted and is in the record. 4. Importance of examination of witnesses is to gather information – not really to win the case in front of the jury. i. Lawyers are not allowed to ask the witnesses questions that the jury is going to answer. 5. Every piece of evidence does not have to be strong – a linking of circumstantial evidence can be very strong. B. History of Trials 1. Trial by Champion 2. Trial by Ordeal 3. ~ 13th Century i. King‘s courts begin to become more prevalent.
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Evidence - Milich Fall 2003 Page 2 of 93 ii. First ―jurors‖ were investigators and fact-finders. They would report to the arriving circuit judges. iii. Writ of Attaint – writ of a party that feels they have been wrongly convicted against a jury. a. If writ was satisfied, the penalty was the loss of property. iv. Began to change to a system where court investigated and brought evidence to the jury. v. Rules of evidence begin to become more important. 4. ~ 16-17th Century i. Mid-16th Century – subpoena power ii. Judges could control the trial. iii. Required swearing of an oath. iv. Begin to open door to use of counsel. v. Typical for judge and jury to ask questions of jury. vi. At this point there was no provision for defense counsel. a. Idea of defense attorney has not yet appeared. vii. Rules of Evidence Begin – Factors a. Class Consciousness – jurors were not as educated and filtering of evidence was thought to be necessary. b. Policy Objectives – competition to have the most fair trial procedures among the various societies. c. Need for Efficiency Relevance A. Relevance is evidence with any tendency to make existence of any fact more or less probable. B. Introduction 1. Early English law had doctrine of legal relevance – evidence had to be strong so that juries would not be swayed be weak evidence. 2. Modern rules have abandoned legal relevance and have adopted logical relevance i. If a piece of evidence has any tendency whatsoever to prove or disprove party‘s point, it is relevant. ii. Judges in U.S. never comment on evidence. 3. Presumptions Regarding Jury i. Part of community ii. Understand community iii. Impartiality and fair-mindedness C. Probative Value of Evidence - Two things must be evaluated 1. Persuasive force of the evidence itself for the point for which it is offered. 2. Need for evidence on that point. i. Whether it is cumulative evidence (part of much more evidence) or the only evidence relating to that issue. D. Direct Evidence 1. Evidence that does not require any inference. i. Testimony that someone saw another take money.
Evidence - Milich Fall 2003 Page 3 of 93 E. Circumstantial Evidence 1. Evidence that requires an inference. 2. Testimony that person saw money in back room and then walked out and saw defendant enter and exit room. When he returned, money was gone. 3. Strength of inferences determines the strength of the circumstantial evidence. F. Occasionally, a trial judge will exclude evidence on the basis of remoteness – evidence is too far removed in space or time from the proposition that it is offered to prove. G. Georgia Comparison to Federal Rules 1. Courtroom Handbook on Georgia Evidence The Georgia and Federal Rules are substantially the same. Both define "relevance" broadly and favor the admission of evidence generally, leaving questions of the evidence's strength or weakness to the jury. H. FRE 401 1. Rule 401. Definition of "Relevant Evidence" "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 2. Evidence is not kept out because it is weak. 3. ―Any tendency‖ is the threshold. 4. It is not the judge‘s job to keep out evidence because it is weak. However, there still is a role for the judge in determining whether the case is legally sufficient. 5. Judge still has the role to determine if legal sufficiency has been met. If not, the judge can issue a directed verdict (civil) or acquittal (criminal). 6. When we are thinking about irrelevant evidence, there are two kinds i. Truly irrelevant evidence that causes no harm ii. Irrelevant evidence that causes harm by prejudice to the jury or some other similar problems. 7. FRE 105 – Limited Admissibility Rule - basically says that when evidence is admissible for one purpose but inadmissible for another (homosexual driver example), it is admitted subject to a limiting instruction if requested or a FRE 403 analysis. i. Limiting instructions are difficult to construct in such a manner that will be of a great deal of help. 8. United States v. Foster i. FRE 401 indicates that evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence is admissible as relevant. Evidence is either relevant or it is not. I. FRE 402
Evidence - Milich Fall 2003 Page 4 of 93 1. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. J. FRE 403 1. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 2. If evidence is admissible for one purpose but inadmissible for another, the FRE 403 balancing test can be requested. i. If probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ii. Balance of Probative Value against Unfair Prejudice a. Determine persuasiveness b. Determine need c. The key to unfair prejudice is ―unfairness‖ – prejudice that flows from the inadmissible evidence. d. The judge must look at how strong that prejudice is. e. Judge can also mitigate the prejudicial effect on the jury. iii. Usually, cases that have low probative value and high unfair prejudice are the ones that go through the FRE 403 balancing test. 3. People of Territory of Guam v. Shymanovitz i. Facts a. Man charged with criminal sexual conduct with children b. Magazines found that involve sex with minors. ii. Probative Value of Homosexual Magazines with Adults a. Inference is that reading this type of magazine increases the likelihood that defendant committed the sexual conduct with children. b. Persuasiveness is not very high – no empirical evidence of such a connection. c. Need is not very high – iii. Unfair prejudice is of homosexuality and all the stuff that goes along with that. iv. Probative Value of Homosexual Magazines with Children a. Persuasiveness is very high – those who show interest in sex with minors. v. Prejudicial effect is also higher because of the added evidence of child molestation.
Evidence - Milich Fall 2003 Page 5 of 93 vi. Most courts would and should keep out adult homosexual material but would keep in the material that directly coincided with charges. 4. Unfair prejudice is that which could lead the jury to make an emotional or irrational decision or to use the evidence in a manner not permitted by the rules of evidence. 5. Where the case is tried to a judge, the risk of prejudice is not a proper ground for excluding evidence under FRE 403. i. In a bench trial, the only reason for excluding probative evidence under FRE 403 is that the evidence would be cumulative or a waste of time. K. Alternative Perpetrator Problem 1. Problem is not that it is impossible that other perpetrator could have committed the crime, it is problematic in that it will mislead the jury. 2. Defense will often try to create doubt in the mind of prospective jurors by alternative perpetrator theories. 3. How is this problem handled. i. Judge will ask the defendant to present any and all evidence of an alternative perpetrator. ii. Judge must decide whether to allow evidence of alternative perpetrator. iii. This is done prior to the picking of the jury. iv. Defense must show real evidence of the involvement of another perpetrator. v. If evidence cannot be presented, judge will not allow evidence at trial. vi. Court must be careful and not offend due process – the court must evaluate whether evidence of alternative perpetrator is valid to allow at trial. L. FRE 411 1. Rule 411. Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 2. Negative inadmissible inference with liability insurance is that a person is able to pay judgment. i. This type of inference might lead jury to feel for plaintiff and rule on emotions, since the insurance company would pay the judgment. ii. This problem gets jury away from the issue of deciding fault. 3. If this was run through FRE 403 balancing test, the probative value is small and is substantially outweighed by the potential for prejudice against the defendant. 4. FRE 411 essentially is a pre-balancing rule that weighs probative value against possible prejudice to the defendant.
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Evidence - Milich Fall 2003 Page 6 of 93 5. FRE 411 does not require exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 6. Hypos i. Son crashes car and injures another. Father claims he gave car to son a few weeks ago. Would allow evidence of liability insurance of a father who continued to pay insurance for son because this would rebut an assertion that father did not maintain ownership of the car. ii. Suppose auto accident case. Defense has witness that says he spoke with P and P told him he was driving too fast. On crossexamination, ought the P be able to show that witness has BIAS. FRE 411 would allow us to interject insurance into the case. iii. Suppose you represent D. P has witness who inadvertently lets it slip that D has liability insurance. You object. Objection sustained. Testimony stricken. Limiting instruction will be given. However, D only has $50K of insurance. What can be done? Can evidence of level be admitted? Some courts may attempt to balance by allowing some evidence. Some courts, including Georgia, take a strict view and indicate that limiting instruction would be sufficient. Might also move for mistrial. Also, good judges might give a limiting instruction that is sufficiently fair and will balance the interests of both plaintiff and defendant. M. Issue of ―Opening the Door‖ 1. Two Types i. Door is closed by rule of evidence and it is inadvertently opened up. a. Some courts take the view that if it is inadmissible, it IS inadmissible. ii. Party attempts to keep door closed but it is opened up. a. Plaintiff with history of mental problems. Claims mental problems after an injury. N. Rule of Completeness 1. We do not want a piece of evidence coming in where, that piece coming in disconnected from the remainder, causes misunderstanding. 2. Writings, documents, conversations, videos, articles – any piece of evidence is subject to rule of completeness. 3. Even if some of the other part might be inadmissible, it is let in when a party opens the door. 4. Procedure i. If dealing with a document, opposing party has right to insist on introduction of other relative portion at the time of initial admission. ii. Whatever part of the evidence that is required to understand the context of the evidence can be put in. Objections, Procedures, and Judicial Notice A. FRE 101 1. Rule 101. Scope
Evidence - Milich Fall 2003 Page 7 of 93 These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101. B. FRE 102 1. Rule 102. Purpose and Construction These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly determined.
C. FRE 103 1. Rule 103. Rulings on Evidence (a) Effect of Erroneous Ruling.--Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection.--In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of Proof.--In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of Offer and Ruling.--The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of Jury.--In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain Error.--Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. D. FRE 104 1. Rule 104. Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Evidence - Milich Fall 2003 Page 8 of 93 (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. E. FRE 105 1. Rule 105. Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. F. FRE 106 1. Rule 106. Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. G. Preservation of Evidentiary Issues for Appeal 1. If you do not give trial judge every chance to get the ruling right, the appellate courts will not find for you. 2. Six Basic Requirements for Successful Appeal of an Evidentiary Error – All must be met i. Ruling by trial court a. Two kinds related to evidence 1). Sustaining or overruling objection to evidence 2). Curative ruling b. Ruling must not be in client‘s favor – must be unfavorable. 1). Must keep objecting until judge says no. 2). Judge refuses to give curative relief. c. If you decline a limiting or curative instruction, you waive the right to appeal that issue. d. If curative instruction is insufficient, must renew objection in order to preserve appeal. e. The last thing that happened with regard to that issue was that judge turned down the request.
Evidence - Milich Fall 2003 Page 9 of 93 f. Some judges are good at the art of not ruling – attorney MUST get a ruling. Attorney should really stay after judge until there is a ruling. ii. On the record a. Everything must be on the record. b. Cannot allege anything in the appeal that is not in the record. c. Must be able to point specifically at the record. d. The thing that must be remembered is to get all colloquies on the record. e. May need to 1). Get jury excused and argue issue with court reporter present. 2). Sidebar conferences – many discussions are not recorded by court reporter. 1. Sidebars are used to talk about issues that you do not want jury to hear. 2. If attorney does not get what they wanted, must get this on record. 3. One way to get on record is to get court reporter to come to the sidebar. 4. Another way is to, at next opportunity when jury is not present, to give summary of colloquy on the record. 5. What you do not want to do is to leave it out of the record. iii. Rejecting your specific grounds a. Objection must raise specific grounds. b. May have to educate judge on grounds. c. Cannot raise character issue when you do not give judge opportunity to make a ruling on the character issue. d. MUST INCLUDE 1). Legal specificity – point to the legal issue that is implicated 2). Specific harm caused by the admission of evidence. e. Any grounds not raised to trial judge are deemed waived. f. Judges really look at reversal rate – it is important to them to NOT be reversed. g. If attorney lets the trial court know that they know how to preserve evidence, trial court will be more careful in dealing with objections. h. Because prosecution in criminal trial cannot appeal evidentiary issues except for Constitutional problems, a judge who has a low reversal rate may be letting defense get away with anything.
Evidence - Milich Fall 2003 Page 10 of 93 iv. Which was raised in a timely manner a. Contemporaneous Objection Rule - Must object at time problem occurs or else it is waived. b. Do not want counsel to play games with the evidence. v. The trial court was wrong vi. Your client was harmed a. Harmless Error Doctrine – if error is harmless, appeal will not be successful b. What this says is that the best place to get evidence in is at trial level. c. Should not focus on appeal as an alternative. d. Appeal should be last resort. H. Offer of Proof 1. Three Elements i. Tells the court what the evidence would have shown ii. Explain why it is admissible iii. Importance of the evidence to the case 2. Make sure this colloquy on the record. 3. Good offer of proof explains the importance of the evidence to the case. 4. Sometimes, the offer of proof needs to be very detailed. 5. An elaborate offer of proof may be necessary in some instances. i. Outside presence of jury, evidence may need to be put into the record. This could include direct and cross-examination. 6. Whenever we are offering documents, they become part of the record whether or not they are admitted. i. Must make sure clerk has a copy of the proffered evidence. I. Pre-Trial Order Process 1. Evidentiary Benefits i. Clearinghouse for all documentary evidence. ii. Parties attach all documents they intend to offer at trial. iii. Parties are asked whether they have problems with the evidence. iv. Object is to have everything pre-marked and in the record. 2. Motions in Limine i. Preliminary motions ii. A way for attorneys to go to judge prior to trial for evidentiary rulings. iii. Purposes a. Get judge to rule on sticky evidentiary issues. 1). Depending on ruling, attorney may decide to pursue, settle, or drop case. b. Even if judge is not inclined to rule on the evidence, it will serve to bring the judge up to speed on the evidence. c. Get an order that confirms and nails down a ruling on an evidentiary matter, even if you know you are going to win. 1). Example is liability insurance.
Evidence - Milich Fall 2003 Page 11 of 93 1. Ruling that no witness will disclose fact that defendant has liability insurance. 2. Also could put in order that counsel to apprise witnesses of such order. 3. This makes for good deterrent and it also helps if mistrial is desired. Judge does not like orders to be disobeyed. iv. Judge can defer ruling until trial. v. If objection is denied in motion in limine, counsel does not have to object again at trial in order to preserve error. a. However, it is good practice to renew the objection during the trial. This way, it gives trial judge every opportunity to make the correct decision. 3. Motions to Suppress i. Constitutional issues that come up in criminal cases. ii. Rules are somewhat different. J. Generally, would want to make a motion for mistrial at sidebar. 1. Prevents pissing off jury. 2. Prevents indicating any weakness in case. K. Generally, the law should not be argued in front of the jury. L. FRE 104(a) and FRE 104(b) Distinction 1. Federal rules allow court to determine the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence. 2. Georgia rules provide that jury determines some of these issues. 3. Two kinds of evidentiary issues i. Relevance based ii. Technical 4. Suppose murder case. Plaintiff offers letter supposedly written by defendant to attorney admitting murder. i. Defendant argues that 1.)letter is a forgery, and 2.)the letter is privileged. ii. Finding that the letter is privileged does not affect relevancy of the letter. 5. If objection goes to relevance, it is 104(b) i. Question to Ask: a. If the objection is true, would it make the evidence irrelevant? If yes, the objection would be under 104(b). ii. Judge will let the evidence go to the jury if a ―reasonable jury‖ could find that, based on what the evidence shows, 6. If the objection goes to technical, it is 104(a) i. Under 104(a), judge decides any questions that are factual predicates of the objection. If the predicates are met, the judge will exclude the evidence. ii. Judge can listen to all evidence, except privileged evidence, to determine. iii. Judge will use preponderance of the evidence standard.
Evidence - Milich Fall 2003 Page 12 of 93 7. Hypos i. Prosecution offers as evidence a bag of cocaine found in the apartment. Plaintiff objects that prosecution cannot prove that the bag in courtroom is what was seized from the apartment. a. 104(b) ii. Prosecution offers evidence that its star witness passed a polygraph test. a. 104(a) iii. Plaintiff offers evidence of liability insurance and that it is admissible under an exception. a. 104(a) iv. Defendant objects to confession admitted into evidence that it was involuntary. a. 104(b) v. Prosecution offers testimony of police detective that received an anonymous note that defendant committed the murder. a. 104(a) M. Connecting Up 1. When evidence presented early is to be connected by later evidence. 2. Offer of proof is made to the judge to show how evidence will connect in the case. 3. Should be done at sidebar. N. Stipulations and Judicial Notice 1. Rule 201. Judicial Notice of Adjudicative Facts (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When discretionary. A court may take judicial notice, whether requested or not. (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
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Evidence - Milich Fall 2003 Page 13 of 93 Formal proof is testimony and documentary evidence given by testimony and cross-examination at trial. There are other ways to get evidence into the trial. Stipulation i. Stipulation is basically a contract between the parties not to raise certain objections to evidence. ii. In Georgia, polygraphs can be admissible if parties stipulate to that fact. a. Not stipulating to the reliability. b. Promise not to object to polygraph on the grounds that it is not admissible. iii. Stipulations must be voluntary – they cannot be forced. iv. Essentially, all the rules of contract apply to stipulations. v. Requests for Admission (FRCP 36) a. Asks other side to admit or deny certain propositions. b. If no response and other party puts on evidence, party who does not respond may be liable for costs of putting on evidence. Judicial Notice i. Two kinds of judicial notice a. Notice of adjudicative facts 1). Ordinary facts that judge is asked to take notice of 2). Two Kinds 1. Facts generally known in the community 2. Facts that are not subject to reasonable dispute and are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. b. Notice of legislative facts 1). Ask judge to take judicial notice of statutes, rules, and regulations. ii. Procedure a. Party asks for judicial notice outside presence of jury. b. Other party can object. c. Judge would indicate judicial notice to jury. d. For civil cases, judge tells jury that the judicial notice is conclusive. e. For criminal cases, judge tells jury that they may or may not find judicial notice conclusive. iii. Resort to Authoritative a. ―Almanac‖ approach b. Procedure is similar to but must show authority. iv. Reasons for Judicial Notice a. Shortcut
Evidence - Milich Fall 2003 Page 14 of 93 b. Jury typically buys what judge says. v. Anytime you are dealing with opinion, it is not going to qualify for judicial notice. vi. Can ask court to take judicial notice. vii. Third Situation for Judicial Notice a. Court takes judicial notice that certain scientific principles or processes are used without question and are authoritative. b. Example is use of magnometer – don‘t want to have to call in experts to indicate that magnometers are accurate. c. Another example is DNA technology. 1). Had to convince courts in states that the technology was reliable. d. Does not mean that there is no controversy as to results of the testing. e. Only judicial notice that technique is reliable. f. Must show trial judge that courts, at appellate level, have accepted the technique. g. This just gets the parties through the front door. Only answers the question as to the reliability and accuracy of the technique. viii. Hypos a. Prosecution asks for judicial notice that Fox Theatre is on West side of Peachtree Street. 1). Yes. Court can take judicial notice. Would not be able to if in Valdosta because it is not commonly known in Valdosta. Might be able to get judicial notice if a map was presented. b. 151 Miles from Atlanta to Augusta. 1). Yes. Could take judicial notice with accurate maps, atlases, etc. c. Rained an inch in Atlanta on X Date and party brings paper that shows the fact. 1). Probably would be acceptable. But it would have to know where the data was collected. Collecting rain information might not be pertinent to the issue. 2). That type of simple information would be trusted from newspaper. d. Could court take judicial notice that women get drunk faster than men. 1). No. It is opinion, not commonly known, can‘t be shown through authority. e. That Braves won World Series in 1995. 1). Yes. Historical fact that is commonly known. Would want to bring almanac.
Evidence - Milich Fall 2003 Page 15 of 93 f. Water boils at 212 degrees F. 1). Yes. Uncontested immutable law of nature. g. Whether police radar is accurate. 1). Yes. Has been shown by previous presentation of evidence. ix. Courts generally will not take judicial notice by a map that venue (an element of the crime) has been satisfied. Authentication and Best Evidence A. FRE 901 1. Rule 901. Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
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Evidence - Milich Fall 2003 Page 16 of 93 (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. B. FRE 902 1. Rule 902. Self-authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to
Evidence - Milich Fall 2003 Page 17 of 93 investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. (11) Certified Domestic Records of Regularly Conducted Activity.--The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record— (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and
Evidence - Milich Fall 2003 Page 18 of 93 (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. (12) Certified Foreign Records of Regularly Conducted Activity.--In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record— (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. C. FRE 903 1. Rule 903. Subscribing Witness' Testimony Unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. D. FRE 1001 1. Rule 1001. Definitions For purposes of this article the following definitions are applicable: (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
Evidence - Milich Fall 2003 Page 19 of 93 (2) Photographs. "Photographs" include still photographs, Xray films, video tapes, and motion pictures. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. E. FRE 1002 1. Rule 1002. Requirement of Original To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. F. FRE 1003 1. Rule 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. G. FRE 1004 1. Rule 1004. Admissibility of Other Evidence of Contents i. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if— (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. H. FRE 1005 1. Rule 1005. Public Records
Evidence - Milich Fall 2003 Page 20 of 93 The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. I. FRE 1006 1. Rule 1006. Summaries The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. J. FRE 1007 1. Rule 1007. Testimony or Written Admission of Party Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. K. FRE 1008 1. Rule 1008. Functions of Court and Jury When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. L. Georgia ―Best Evidence‖ Rule 1. Best Evidence Rule i. The best evidence rule has three parts: a. (1) When must a writing be produced? b. (2) When may a copy of a document be used in lieu of the original? c. (3) When may a summary of documents be used in lieu of the originals or copies? The first two parts are covered here, the third part is covered in the section, SUMMARY OF VOLUMINOUS DOCUMENTS.
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Evidence - Milich Fall 2003 Page 21 of 93 ii. When a party wants the court to enforce a writing, such as a contract, stipulation, or waiver, the party must produce the writing. O.C.G.A. § 24-5- 4(b). iii. When we say a writing "must be produced" under the best evidence rule, we mean that a party must either produce the writing or offer a satisfactory explanation for why the writing could not be acquired for trial, despite the due diligence of the party in attempting to obtain it. O.C.G.A. § 24-5-21; Summerour v. State, 211 Ga.App. 65, 438 S.E.2d 176 (1993). If due diligence is shown, a party may attempt to reconstruct the writing with oral testimony or any other secondary evidence of the writing's contents. O.C.G.A §§ 24-5-4, 5. Roberson v. Ocwen Fed. Bank, 250 Ga.App. 350, 553 S.E.2d 162 (2001). Showing that evidence is what it purports to be. Different rules for different types of evidence Types of Evidence 1. Real – Evidence relates directly to the underlying charges. 2. Demonstrative – Evidence that is used to help jury understand but is not the actual evidence and does not have probative value in itself. i. Mock-Ups ii. Replicas iii. Etc. Real Evidence 1. Two Kinds i. Items that are distinct and easy to identify. a. May include an identifying mark made on evidence by official. b. Not always necessary to prove chain of custody. However, it is probably a good idea to establish because of the tendency of jurors to distrust evidence. ii. Items that are fungible (blood, cocaine, cash, fingerprints, etc.). a. Must be treated more carefully in order to maintain identity and integrity through chain of custody from time of seizure through trial. b. Chain of custody must only be a process designed to protect the integrity and identity of evidence. Standard of proof with chain of custody and if reasonable jury could find that evidence presented is actually the evidence it is purported to be. c. Chain of custody for white powdery substance. 1). Police officer bags and tags evidence. Includes pertinent case information. 2). Police officer stores in secure location. Evidence room, safe, etc. 3). Goes to crime lab. Some places it is sent by certified mail. Receipt showing that it was sent is kept. Evaluated by crime lab. Some or all of
Evidence - Milich Fall 2003 Page 22 of 93 evidence might be consumed in testing. Will seal in evidence bag along with report. 4). Item sent back to prosecutor or police. 5). Item and report brought to trial. Also need someone from crime lab to ID the report and interpret findings. Q. Routine Practice Rule – FRE 406 1. If you can show that there is a routine practice for handling evidence, it is assumed that this was followed, unless it is shown otherwise. 2. Example i. Asking officer if he recalled Mirandizing this particular defendant. Is it routine practice? Yes. OK – this would be enough to get evidence in that defendant. R. Documents 1. Called Documentary Evidence i. Two Kinds a. Public Documents 1). Issued by public organizations. 2). Can use witnesses to authenticate. However, this is expensive, time-consuming, and inefficient. 3). Public agencies can self-authenticate the document through proper certification. 4). Certification is the assertion that document is true and accurate copy of document being held at agency. 5). Seals are still used in some cases. 6). Three Tiers – State Court 1. Public Documents from Within Same State a. All that is needed is simple certification. b. Simple certification because it can be easily checked. 2. Federal Documents and Documents from Sister States a. Additionally, a seal must be used to anchor the certification (name, date, attestation) as in the tier above. b. Pressure stamp embossed seal. 3. Foreign Records a. Certifications would include all levels of the chain, including State Departments, etc. b. Non-Public Documents 1). Anything that does not come out of public agency. 2). Variety of ways to authenticate.
Evidence - Milich Fall 2003 Page 23 of 93 3). Easiest way is to get witness to testify as to authenticity. 4). Witness who saw document being executed is a subscribing witness. 5). Whole idea of notary is to create a subscribing witness. c. Cannot authenticate a document solely through letterhead. S. Best Evidence Rule 1. Also called the Original Document Rule 2. Two Issues Governed by Best Evidence Rule i. When does a party have to produce an actual writing or recording? a. What is important to understand is that you only have to produce writing or recording when you are trying to prove contents. b. Example is we want to prove we paid Joe $500. Claim that there is written proof of paying $500. This means it must be produced. c. If you are going to refer to content of writing or recording by indicating that it exists, you must produce it by best evidence. ii. When a party has to produce a writing or recording, when can a copy or duplicate be used? a. Under federal rules, basically can use copy or duplicate of original at any time. b. However, party may object. c. Court will sustain objection if there are specific problems with the copy or duplicate. 1). Taken care of on ad-hoc basis. d. Georgia rule is that proponent must give some reason why the copy is being used instead of original. T. Authentication/Best Evidence Rule Handout 1. A 14-Inch Butcher Knife, Removed from the Victim‘s Body i. Relevant. ii. Police officer/ME should mark the knife. Then, they could ID the knife as being the knife they found. iii. No best evidence issues. 2. A small packet of cocaine, found in the defendant‘s pocket at the time of his arrest. i. Perhaps relevant if there was a drug murder. Might be excluded because of potential for prejudice. ii. Would have to bag and tag and establish chain of custody. Could indicate that procedures were used. iii. No best evidence issues. 3. A set of fingerprints removed from the butcher knife. i. Relevant
Evidence - Milich Fall 2003 Page 24 of 93 ii. Bag and tag. Show that chain of custody was followed. Fingerprint examiner would testify that latent print matched known print of the defendant. Authentication issue is whether the fingerprints came from where it was indicated that they came from. Identity and integrity of the evidence are the issues. Fingerprint identification process would have to be authenticated. 4. A certified copy of a state crime lab report concluding that the fingerprints taken from the butcher knife match the defendant‘s. i. Relevant ii. Issue with authentication is whether evidence is what it purports to be. In this case, the certification provides proper authentication of the evidence. Certification takes care of authentication issue. Certified copy is self-authenticating. iii. There is no best evidence issue because certified copy of records will satisfy best evidence rule. 5. A certified copy of the defendant‘s confession (it was typed by a police clerk and signed by the defendant). i. Relevant ii. Authenticity issue is whether the confession is actually the defendant‘s confession. It is not a public record and the certification. Would need to get testimony that would support assertion that confession is that of defendant and that defendant signed the confession. Other ways to authenticate would be to prove that signature is match to defendant. Another method of authentication is testimony from clerk that they typed up defendant‘s handwritten document. Defendant‘s execution by signature is the issue. Means to prove that signature is that of defendant: a. Lay person who can testify as to knowledge of defendant‘s signature. b. Exemplars of signature from other places to compare to signature in question. Goes directly to jury and make comparison. c. Expert testimony to compare exemplars of defendant‘s signature and signature in question. 6. A copy of a handwritten letter the defendant sent to his friend admitting the crime. i. Relevant ii. Could authenticate by testimony of friend that handwritten note was written by defendant. Could also authenticate by additional facts in letter that would show that it is reasonable that defendant wrote the letter. iii. Best evidence rule is an issue because this is a copy. Defendant would object to copy being used. Under Federal Rules, it is admissible, unless the other party can bring up a decent, specific argument as to why using a copy is a problem. Under Georgia law,
Evidence - Milich Fall 2003 Page 25 of 93 would have to produce original or account for where the original was. 7. A witness‘s testimony that the defendant phoned him after the murder and confessed. i. Relevant ii. Issue is authentication of phone conversation. This is from the perspective of recipient. Recipient would authenticate by testimony for voice recognition. Witness would have to indicate that they heard defendant‘s voice and recognized it to be the defendant. Could also authenticate by the facts included in the conversation. The fact that voice identifies himself is not enough. There must be some recognition. 8. Another witness will testify that he telephoned the defendant‘s home (around the time of the murder) but someone else answered (defendant had a roommate) and said the defendant was not there. i. Relevant to the extent that it is anti-alibi. ii. Issue is authentication of phone conversation. Could authenticate by phone records. Could also authenticate by substance of the conversation that indicated that defendant was not home. Could also authenticate by indicating that roommate answered phone and knew roommate‘s voice. 901(b)(6) allows linking of witnesses‘ having phone number of defendant and that phone number matches defendant‘s listed number. 9. A receipt from Billy‘s Knife Sharpening Service on which is written the defendant‘s name, a date one week before the murder, and $12.00. i. Relevant. Not highly relevant, but it has some probative value. Can show premeditation, etc. Not prejudicial so even small probative value would make evidence relevant. ii. Authentication issue is that letterhead cannot be used to authenticate a letter. Point here is that this item cannot be authenticated without a live witness. Witness would have to testify that the receipt is a valid receipt from the business. 10. A gruesome color photograph of the murder victim, as he was found by the police. i. Relevant. Prejudicial impact just may not substantially outweigh the probative value of the evidence. Would not allow if went overboard. ii. Authenticate by testimony by someone with personal knowledge that indicates photograph was an accurate depiction of the scene. All we need is someone with personal knowledge to indicate that photograph is fair and accurate depiction of the scene. iii. No best evidence rule issue. If witness had described what photo showed, it would have to be entered. 11. A videotape, taken by police from a hidden camera, of the defendant offering a bribe to a juror. i. Relevant because it shows consciousness of guilt.
Evidence - Milich Fall 2003 Page 26 of 93 ii. Authentication would be shown by someone with personal knowledge. Police officer who had personal knowledge of the bribe could testify as to fairness and accuracy of the videotape. 12. A videotape, taken from automatic security cameras in the victim‘s apartment building, showing the defendant entering the building on the night of the murder. i. Relevant because it goes to location of the defendant at the time of the murder. ii. Authenticate by testimony by witness as to what the camera surveils, how it works, that video was given to the police, and that the camera is accurate and functions properly. Some jurisdictions require this ―silent witness‖ if there is a date/time stamp. U. Demonstrative Evidence 1. Distinction between demonstrative evidence and ―trial aids‖. i. Trial aids are devices used at trial to help jury follow the testimony of the witness. ii. Should not go back with the jury. iii. Can be used at closing arguments. iv. Want to be careful of using too many of these things at trial because it can be confusing and distracting to the jury. 2. Three Requirements i. Must be based on admissible evidence. a. Can indicate that evidence will be connected up later through an offer of proof. ii. Must be substantially similar in all relevant respects of the thing it is attempting to depict. iii. Must be helpful to the trier of fact. a. If there is tendency to mislead or prejudice, the court might not allow. 3. Types of Demonstrative Evidence i. Charts and Diagrams a. Example is diagram of intersection where accident occurred. b. Witness could draw diagrams. c. Could also have prepared diagram beforehand. d. Must lay foundation for admissibility as demonstrative evidence using three requirements above. 1). Establish witness has personal knowledge of what is shown in diagram. 2). Must indicate that the diagram is fair and accurate depiction of the thing it purports to be. ii. Photos and Videos a. Pictures or videos that show actual accident scene are real evidence. b. Pictures or videos taken after the accident would be demonstrative evidence.
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Evidence - Milich Fall 2003 Page 27 of 93 c. Must show that the photo or video is a fair and accurate depiction of the scene as it is purported to be. iii. Models a. Must be substantially similar in all relevant respects for the purposes for which it is used. 1). Cannot be disproportionate. iv. Reenactments a. Efforts to try to use experiments, computer simulations, etc. to make a certain point. b. In criminal cases, videotaped reenactments are very controversial. 1). Courts are concerned with ability of prosecution to pay for reenactments and the inability of defense to do the same thing. 2). Since this is demonstrative evidence and NOT real evidence, this is an issue because it is a persuasion tool. 3). In Georgia, crime reenactments are not admissible unless it is to show evidence that cannot be expressed by oral evidence. c. Can also be used in civil cases. v. Day in the Life Evidence a. Used in personal injury and wrongful death claims. b. Purpose is to demonstrate how difficult the victim‘s life is after the accident. c. Many evidentiary problems with this type of evidence. 1). Must balance between need to educate jury and the prejudicial effect of the evidence on the jury. d. Difficulty is fairly depicting the life. e. Must be 1). Based on relevant, admissible evidence. 2). Substantially similar in all relevant respects. f. Also, raises hearsay problems. g. There are issues of production of the video, etc. h. Generally, day in the life films are not allowed to use special production features to enhance the impact on the jury. 1). Music 2). Zooming in on grimaces and expressions. 3). Anything that makes the plight more evocative. i. Defense can ask for bifurcation of trial. 1). Liability stage to determine if there is liability. 2). Damages phase to determine damages – this is where film may be used. Witness Competency A. FRE 601
Evidence - Milich Fall 2003 Page 28 of 93 1. Rule 601. General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. FRE 602 1. Rule 602. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. FRE 603 1. Rule 603. Oath or Affirmation Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. FRE 604 1. Rule 604. Interpreters An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. FRE 605 1. Rule 605. Competency of Judge as Witness The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. FRE 606 1. Rule 606. Competency of Juror as Witness (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the
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Evidence - Milich Fall 2003 Page 29 of 93 juror would be precluded from testifying be received for these purposes. G. History 1. Wasn‘t until 1960‘s that Georgia allowed criminal defendant to testify. 2. Women, felons, foreigners, etc. were not allowed to testify. 3. Bars to testimony have disappeared. H. Today, only two kinds of incompetency 1. Jurors are not allowed to testify in cases on which they sit. 2. Judges are not allowed to testify in cases on which they sit. I. Everything else is fair game. J. It is up to opponent to show that witness is incompetent to testify. K. Child Witnesses 1. Georgia statute does not bar child witnesses in child molestation cases. L. Oath or Affirmation 1. All witnesses, except a child too young to understand, must take oath or affirmation to tell the truth. 2. Tools that help to reinforce oath i. Religious beliefs ii. Laying foundation for perjury M. Severely Injured Individuals 1. Mental or communication ability creates an inability for crossexamination. 2. Heart of problem is the INABILITY to cross-examine. N. Competency hearings are typically held in presence of jury. O. Juror Competency 1. Not allowed to impeach their verdicts after they have been given. 2. If allegations have to do with what went on inside the jury room, there will be no mistrial. 3. The reasoning for this is finality. 4. Once jury is dispersed, that is it. 5. Do not want attorneys running down jury and asking questions. 6. Exception i. Even after verdict, if there were external influences that were brought to bear on the jury, will be admissible and new trial might be allowed. ii. Also, external information brought in by jury members. Examination of Witnesses A. FRE 611 1. Rule 611. Mode and Order of Interrogation and Presentation (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting
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Evidence - Milich Fall 2003 Page 30 of 93 the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross- examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. B. FRE 612 1. Rule 612. Writing Used to Refresh Memory Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—(1) while testifying, or(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. C. FRE 614 1. Rule 614. Calling and Interrogation of Witnesses by Court (a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. (c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. D. FRE 615 1. Rule 615. Exclusion of Witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its
Evidence - Milich Fall 2003 Page 31 of 93 representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present. E. FRE 701 1. Rule 701. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. F. FRE 704 1. Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. G. Objections at Trial 1. Substantive 2. Formal i. Objections to the form of the question. ii. Types a. Rule prohibiting leading questions. FRE 611 1). Leading questions should not be used on direct examination. 2). Ordinarily, leading questions should be permitted on cross-examination. 3). Why no leading questions on direct? 1. Want jury to hear what witness has to say in order to determine credibility and substance of testimony. 2. Only novice attorneys lead witnesses on direct – this leads jury to distrust witness testimony. a. Usually don‘t object to other parties‘ leading witness on direct. 4). Why lead on direct? 1. On cross, jury has already gotten the opportunity to determine credibility.
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Evidence - Milich Fall 2003 Page 32 of 93 2. Keep witness from repeating direct testimony on cross. 3. If witness did bad job, let them live with it. 4. Keeps reigns on witness. 5. Shorter is better – get what is needed and sit down. 6. By asking leading questions, you will be sure to get a yes or no answer. 5). If you want to call adverse party as a witness on direct, you can use leading questions. 1. Adverse witness is one who is patently part of the other side. 2. Hostile witness is one who might not be cooperative but that is not automatically apparent. 3. Procedure is to indicate that you would like to treat as if on cross-examination. 6). Other times to ask leading questions 1. To aid the exhausted memory of the witness. 2. To develop testimony. 3. To make transitions from one part of story to another. a. ―Now, after you viewed the robbery, you went to the police station, didn‘t you?‖ 4. When laying technical foundations. 5. When we have a minimally competent witness. 7). Tip is to ask who, what, where, when, or how question. Narrative 1). Issue is that witness may stray into inadmissible evidence. 2). Depends upon judge as to whether objection will be sustained. Argumentative 1). Question is argumentative if it asks witness to draw conclusions that are for the jury to draw. Arguing with or harassing the witness 1). Civility is the issue with this objection. 2). Never want to get ahead of the jury – do not alienate the jury and allow them to sympathize with the witness. 3). Counsel‘s job is to protect their witnesses. Clarity Objections 1). Compound Questions
Evidence - Milich Fall 2003 Page 33 of 93 1. Asking several questions before witness answers. 2). Ambiguous 3). Vague 4). Unclear f. Asked and Answered 1). Repetitious questions 2). Unfair rhetoric 3). Can ask until the witness answers the question. g. Non-Responsive Answers 1). Witness must answer the question asked. 2). Move to strike non-responsive testimony. 3). Court should be asked to instruct witness. h. Assuming Facts Not in Evidence 1). Facts must be proven before questions can be asked. 2). ―When did you stop beating your wife?‖ 3). Must have a good-faith basis that fact you confront a witness with is actually true. 4). Can lead to mistrial. i. Misstate Previous Testimony 1). Not allowed to misstate previous testimony. 2). Cannot misstate or exaggerate prior testimony. j. Lacks Foundation 1). Must establish personal knowledge requirement of FRE 601. 2). Will have to establish foundation for evidence prior to asking questions about evidence. H. Aiding the Forgetful Witness 1. Reasons for Forgetfulness i. Stage Fright ii. Nerves iii. Lousy Memories iv. Some things are just hard to remember 2. Techniques to Aid Forgetful Witness i. Ask a leading question. a. Allowed by FRE 611 ii. Ask for short recess to settle the witness. a. Key is to indicate to judge that this will make testimony go faster. iii. Refreshing the Recollection a. Technique used to jar a witnesses memory. b. Witness is shown ANYTHING (absolutely ANYTHING) that might jog their memory. Then take it away and ask if memory has been refreshed. c. Requirements
Evidence - Milich Fall 2003 Page 34 of 93 1). Establish that witness cannot adequately 2). Ask for permission to refresh 3). On the record, show the witness something, ask them to review the item and then take the item away. 4). Ask the witness if their memory has been refreshed. d. Opponent can insist that item go into evidence. Otherwise, the item is not evidence. e. Refreshing the recollection tends to reduce the effectiveness and credibility of the witness. f. Refreshing on direct should be avoided if at all possible. g. On cross, it is used for recalcitrant witness and to signal the jury that the answer is there but witness does not want to provide it. h. Items shown to witness in preparation for trial must be provided to other side if requested. 1). Don’t show witnesses anything prior to trial in preparing for trial that you would not be comfortable showing to the jury. iv. Past Recollection Recorded a. Actually, a hearsay exception that allows witness to testify based on writings. b. Foundation for past recollection recorded is a past memorialization by the witness made when their memory was fresh. c. Procedure 1). Give witness item. 2). Ask if it is recognized. 3). Ask if witness prepared item. 4). Ask if it was prepared shortly afterwards. 5). Ask if it was made when witnesses memory was fresh. 6). Ask if it is accurate. 7). Ask to allow witness to read from item. d. Item does not go out with the jury. 1). Continuing witness rule – writing continues to testify whereas oral testimony occurs only once. Generally prohibits any written form of testimonial matter to go with jury for deliberations. I. Opinion Rule 1. FRE 701 i. Lay witnesses are allowed to give opinions if they are rationally based on perception of witness.
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Evidence - Milich Fall 2003 Page 35 of 93 Very difficult to testify ONLY to facts. Opinion testimony creeps into just about everything. We do allow mundane, descriptive, opinion testimony. Three Requirements i. Based on Witnesses Perception Requirement a. Must be something perceived by witness. b. Otherwise, it is pure speculation. c. Can‘t ask witness to offer opinion on state of mind. ii. Rational Basis Requirement a. Must be rational for witness to form opinion on what they perceived. b. Feelings, vibes, premonitions, and opinions based on faith are not useful. iii. Helpful to Trier of Fact Requirement a. Must be within competency of witness to offer opinion – otherwise, it is speculation. b. We will allow lay witness to opine on things of common understanding. c. Must not be beyond the ―ken‖ of the jury. Otherwise, expert testimony is required. Ultimate Issue Rule i. Two Issues a. Do not want opinions which invade the province of the jury. 1). Credibility of witnesses – only jury can answer as to credibility. b. Do not want opinions as to legal issues. 1). Cannot ask ―who was negligent?‖ 2). Judge will instruct jury as to legal terms. 3). If legal term is not at issue, it is OK. ii. Feds have dropped this in name. iii. However, they use the ―helpful to trier of fact‖ requirement to accomplish the same thing. iv. An exception is the use of summary witnesses who explain intricacies of the case and somewhat invade the province of the jury. a. Testimony is in the form of summarizing the testimony of various witnesses.
VII.
Hearsay A. FRE 801 1. Rule 801. Definitions The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement.
Evidence - Milich Fall 2003 Page 36 of 93 (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or (2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). B. History 1. 400 years ago w/trial of Sir Walter Raleigh in his treason trial. 2. Co-conspirator was Lord Cobum i. He made ex parte (outside presence of party) affidavits from the comfort of his cell in the tower of London implicating Raleigh in the treason. ii. Attorney brought affidavits to trial. 3. Raleigh spoke up and argued that Cobum should be produced and that he should not be convicted based on the statements.
Evidence - Milich Fall 2003 Page 37 of 93 4. Raleigh was convicted and lost his life. 5. Hearsay rule started out as a prohibition on ex parte affidavits used to hold person guilty of a capital crime. i. Person making ex parte affidavit would have to appear in court. 6. Other factors began to appear to require more than an affidavit i. Desire to have a more active courtroom ritual. 7. The original hearsay rule excludes ALL hearsay rule. 8. The law then spends the next 350 years developing exceptions to the hearsay rule. 9. 6th Amendment to Constitution codified the right of defendant to confront accuser. 10. Hearsay Rule and Confrontation Clause occupy much of the same territory. 11. It is important in criminal cases to raise Confrontation Clause issues along with hearsay issues. 12. Since Confrontation Clause is Constitutional claim, standard of review is somewhat more forgiving than the plain error that must be apparent for the exclusion of hearsay. 13. Hearsay began to spread over to civil cases in the U.S. 14. Problems i. How to distinguish when out of court statements are used for hearsay purposes versus allowed purposes. ii. How to determine when exceptions apply. iii. How to deal with Constitutional In looking at hearsay, the easiest way to look at it is a credibility issue. 1. How much should a juror rely on X‘s testimony. Components of credibility 1. Competency 2. Trustworthiness i. How competent and how trustworthy is the testimony. Witness 1. Person testifying as to what was said or written. Declarant 1. Person out of court who said or wrote something. Problem lies in that jury cannot assess credibility of declarant. 1. Jurors will assume that absent declarant is of average competency. 2. Jurors will assume that absent declarant is of average trustworthiness. Four Issues to Look At 1. Perception 2. Memory 3. Clear and Unambiguous 4. Veracity Oath, Observation of Demeanor, and Cross-Examination is how this is evaluated. Since declarant is not there, we cannot get to this. Hearsay evidence increases the chance that jurors will overvalue the declarant testimony.
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Evidence - Milich Fall 2003 Page 38 of 93 Research suggests that jurors downplay hearsay testimony anyway. At the end of the day, most hearsay evidence is admitted anyway. Explaining What A Juror Takes from Hearsay Testimony 1. Declarant said ―The light was green.‖ i. General Premise – People do not ordinarily say things unless they mean it. a. This is the hearsay risk. 1). Veracity 2). Clear and Unambiguous Communication 2. Inference is that declarant believed that light was green. i. General Premise – People are not ordinarily mistaken in their beliefs. a. This is the hearsay risk. 1). Perception 2). Mistaken Memory 3. Conclusion is that light was probably green. FRE 801 1. Federal rule is assertion based. 2. Basically, says that hearsay is where out of court statement offered in evidence to prove the truth of the matter asserted. 3. If it is being offered for other purpose, it is appropriate. 4. Example – In murder case, person testifies that they overheard victim told defendant that they were going to tell police that defendant sold drugs. If this was used for purpose of establishing motive, it would be appropriate to admit. Georgia Rule 1. Declarant based. 2. Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons. Milich Definition 1. When the relevance of the out of court statement basically asks the jury to assume that a declarant was not lying or mistaken, then it is hearsay. All definitions revolve around the same thing. When there is both a hearsay use and non-hearsay use, it is admitted with a limiting instruction if requested (FRE 105) as long as it passes balancing test (FRE 403) – probative value of non-hearsay use is weighed against prejudice involved in admitting hearsay use. Three Categories of Non-Hearsay 1. Out of court statements admissible for their objective effect. i. Most common. 2. Out of court statements admissible for their demonstration of declarant‘s state of mind. i. Least common. 3. Out of court statements admissible for their impeachment use. i. Easiest to understand. Out of Court Statements Admissible for their Objective Effect
Evidence - Milich Fall 2003 Page 39 of 93 1. Effect on Hearer i. The effect of out of court statements that have on hearer (or person who read statement). a. Provides Notice example 1). Cooking oil on supermarket floor b. Provides Motive example 1). Victim telling defendant that they were going to tell police about drug sales to kids. c. Any other relevant effect on person who heard or read statement. 2. Verbal Act i. Original Evidence in Georgia. ii. Relevant because mere making of statement has independent objective legal effect. a. Example is voting yes for a proposal versus saying ―I voted yes‖ outside of city hall. 3. Verbal Part of an Act (Characterizing Act) i. When we have conduct that is relevant and we have to know nature of conduct, but conduct by itself is ambiguous and we need words accompanying conduct to clarify nature of conduct. a. See A handing money to B. Issue is whether it was a loan, gift, repayment, etc. Conduct is ambiguous. If in underlying case, we need to clarify conduct, would be able to admit words spoken. ii. Three Requirements a. Conduct must be ambiguous without words; b. Relevant and material that we know what conduct involved; c. Words contemporaneous with conduct would clear up the ambiguity. 4. Test for Out of Court Statements Admissible for their Objective Effect i. Step One a. The out of court statement was relevant for the mere fact it was said because it proves ________. ii. Second Step a. Assume declarant had no idea what he was saying – would it still be relevant under Step One. 5. Examples i. Doctor charged with negligence. Nurse testifies that she heard husband say to doctor that wife is allergic to penicillin. a. The out of court statement was relevant for the mere fact it was said because it proves notice. b. Assume husband had no idea what he was saying – would it still be relevant under Step One? Yes – because it indicates that doctor had notice, even if it was wrong. c. NON-HEARSAY
Evidence - Milich Fall 2003 Page 40 of 93 ii. Defendant is charged with murder and robbery. Witness testifies that he heard another person tell the defendant that victim was carrying a large amount of cash. a. The out of court statement was relevant for the mere fact it was said because it proves motive. b. Assume other person had no idea what he was saying – would it still be relevant under Step One? Yes – still gives defendant motive if he believed it was true. c. NON-HEARSAY iii. Defendant is charged with murder. Defendant claims self-defense. Witness testifies that victim told the witness that he was going to kill the defendant. a. The out of court statement was relevant for the mere fact it was said because it proves the intent of the victim to kill defendant and thus, self-defense was appropriate. b. Assume victim had no idea what he was saying – would it still be relevant to prove victim had intent to kill defendant? No. It is here being used to prove the truth of the out of court statement. c. HEARSAY U. Out of court statements admissible for their demonstration of declarant‘s state of mind. 1. This category deals with relevance of out of court statement that demonstrates proof of declarant‘s state of mind. 2. Examples i. To prove that Bob knew where Jack lived, a witness testifies that he heard Bob says Jack‘s address was X. a. This proves that Bob had knowledge of address. b. It is relevant not to prove that Jack‘s address was X, but to prove that Bob knew the address. ii. To prove that T knew how to make a bomb, a witness testifies he heard T describe how to make a bomb. a. This proves that T knew how to make a bomb. iii. D is charged with killing mother. Prosecution offers witness testimony that mother told said that son had ―an evil heart.‖ a. This proves that relationship between mother and son was deteriorated – this is the non-hearsay use. iv. D is charged with possession with stolen aircraft. D claims that he was allowing another to store plane on farm. Defense offers out of court statement by D that he made to townsfolk that D told them that plane was parked on farm and inviting people over to see the plane. a. This demonstrates an innocent state of mind (a person would not invite others to see a stolen plane) – this is the non-hearsay use. v. Detective testifies that defendant told him he was in LA on the date of the murder. Independent evidence that D was not in LA.
Evidence - Milich Fall 2003 Page 41 of 93 a. The statement demonstrates consciousness of guilt. 3. Test for Category Two i. Step One a. Determine if out of court statement is being offered to prove that statement is false, there is independent proof that statement is false, and this is relevant. 1). If yes, this is a non-hearsay use. 2). If no, go to Step Two ii. Step Two a. ―The declarant‘s statement suggests that he believed or knew ________.‖ iii. Step Three a. Assume that X is incontrovertibly true, then ask ―With that assumption in place, is the statement relevant or merely cumulative.‖ 1). If answer is that the statement is still relevant, it is Category Two Non-hearsay. iv. Examples a. Bob and Jack example from above. Still relevant because it proves that Bob knew where Jack lived. b. Airplane example above. The declarant‘s statement suggests that he believed or knew there was a plane on his property. Assume it is true, is there additional relevance? Yes – it would show that it would be inconsistent to allow people to view plane if it was stolen. c. D is charged with willful evasion of taxes. D offers into evidence his Wifes testimony ―I heard my husband say to his accountant ‗I don‘t want to cheat on my taxes‘‖. Declarant‘s statement suggests that he believed or knew that he did not want to cheat on his taxes. Assume it is true, is it relevant? No – therefore, the statement is cumulative and is hearsay. d. Murder case. Police found note in victim‘s pocket. ―Fred 225-2115‖. Defendant is Fred and there is independent evidence that Fred‘s number is 225-2115. Declarant‘s statement suggests he believed or knew Fred‘s number was 225-2115. Assume it is incontrovertibly true that phone number was 225-2115, is there additional relevance. Yes, additional relevance is that this indicates that victim knew Fred – the statement is relevant and is not hearsay. V. What is meant by ―truth of matter asserted?‖ 1. 8 Forms of How Evidence Might Come to Prove Joe Was a Good Shot. Issue is which are hearsay. i. Joe is a good shot with a rifle. ii. Joe can shoot a tick off a jaguar at 200 yards. a. This is an exaggeration used to make an underlying point.
Evidence - Milich Fall 2003 Page 42 of 93 b. This is an implied assertion. iii. Joe‘s daddy was a marksman who taught him how to shoot when he was 10. a. Offering assertion of one fact to encourage jury to infer a fact that would logically go with the assertion. iv. You should go hunting with Joe. a. Assertion or recommendation? v. Have you ever seen someone shoot a rifle like Joe? a. Assertion or question? vi. Witness saw Fred point to Joe when asked ―Who is the best shot in the county?‖ vii. Witness saw Joe sign up for a rifle shooting competition. viii. Witness saw Joe win a rifle shooting competition. 2. Three Methods i. Dictionary Definition Method a. Hearsay rule only applies to direct assertions. b. This is a narrow interpretation. c. Silly distinction and is highly criticized. ii. Wright v. Tatum Definition Method a. This is the widest definition and excludes most evidence as hearsay. iii. Intent-Based Definition of Assertion a. Only non-verbal conduct that is intended as an assertion is treated as hearsay. 1). When assertion is made to communicate, there is a risk of credibility issues and thus hearsay guards against this risk. b. Innocent conduct not intended as an assertion is not hearsay. 3. Examples i. Object to prove Alice owned a particular Buick. a. Testimony that Alice pointed at Buick indicating it was hers. 1). This would be hearsay because this is assertion intended as communication. b. Alice is observed sitting behind wheel of Buick reading a paper. 1). Innocent conduct and thus this is not hearsay. 2). If conduct was not intended to communicate anything, this reduces risk of insincerity and frees it from hearsay rule. 4. Non-verbal conduct is an assertion only if it is intended to communicate. 5. Risk of insincerity is present when non-verbal conduct is being used to communicate. 6. When non-verbal conduct is NOT intended to communicate anything, it is non-hearsay.
Evidence - Milich Fall 2003 Page 43 of 93 7. When non-verbal conduct is not intended to communicate, it is hearsay. W. Implied Assertions 1. An out-of-court statement is hearsay when it is offered to prove the implied assertion and the defendant intended to communicate the express assertion. 2. The question is what is the declarant intending to communicate by the implied assertion. 3. Any time that you are dealing with an express statement of fact and it is being offered as an implied assertion which essentially is offered to prove the truth of the matter asserted, it is hearsay. 4. Ask if there is an express statement of fact that must be true in order to draw the inference asserted. If yes, it is hearsay. i. Jaguar example does not require that the statement be true in order to draw the inference. ii. Dad training Joe does require that the statement be true in order to draw the inference. 5. It comes back to whether declarant intended to communicate the implied assertion. 6. Test to Determine if Implied Assertion Was Intended to be Communicated by the Out of Court Declarant i. Step One – Assuming the hearsay rule did not exist, the proponent would offer the out of court statement in this case to indicate that the declarant believed __________. ii. Step Two – Assume ______ is false. With that assumption in place, was the declarant necessarily lying or mistaken when he made the out of court statement. If no, the statement is not necessarily intended to communicate the implied assertion and thus is not hearsay. iii. Example a. ―You should go hunting with Joe.‖ b. Step One – Assuming the hearsay rule did not exist, the proponent would offer the out of court statement in this case to indicate that the declarant believed that Joe was a good shot with the rifle. c. Step Two – Assuming Joe is not a good shot with the rifle, was the declarant necessarily lying or mistaken when he made the out of court statement? No. Statement is not necessarily intended to communicate the implied assertion and thus is not hearsay. X. Approaching Hearsay Problems 1. First thing to do is look for potential hearsay situation. i. Anything said or done out of court. 2. Is this being offered to prove the truth of the matter asserted. i. If not being offered to prove the truth of the matter asserted, it is not hearsay. 3. Look to see if there are relevant non-hearsay uses of the statement.
Evidence - Milich Fall 2003 Page 44 of 93 i. Objective Effect a. Effect on hearer ii. Demonstrates Declarant‘s State of Mind iii. Is it Offered for Some Implied Assertion Y. United States v. Zenni 1. Phone rang and said ―$2 on Paul Revere to place at Pimlico‖ 2. Cop testifies at trial as to what happened. 3. Defense objects. 4. Prosecution indicates that it is not being offered to prove truth of matter asserted. 5. Defense argues that this will create assumptions in jury‘s mind that caller had reached a betting parlor. 6. Evaluate With Hearsay Tests i. Category One a. What is it relevant to prove – that this was a betting parlor. b. Assume caller did not know what he was talking about – would it still be relevant? No. Therefore it is not category one non-hearsay. ii. Category Two a. Demonstrates caller‘s state of mind – knowledge that he has reached a betting parlor. b. Assume that declarant did reach a betting parlor, is the evidence additionally relevant or merely cumulative of the assumption we made? Merely cumulative because once assumption is made that the place is a betting parlor, there is no relevance. Thus, it is not category two non-hearsay. iii. Implied Assertion a. If we were not worried about hearsay rule, the proponent would offer the statement as proof that caller had reached betting parlor. b. Assume that caller had reached betting parlor is false. With that assumption in place, was the declarant necessarily lying or mistaken when he made the out of court statement. Yes. Therefore, the statement was intended to communicate the implied assertion and the statement is hearsay. Z. Category Three Non-Hearsay 1. Under federal rules, any out of court statement offered to prove the truth of matter asserted is hearsay EVEN if declarant is on the stand. 2. Under Georgia rules, witness who repeats prior out of court statements is NOT giving hearsay testimony because witness can be examined. i. Improper Bolstering of Testimony is the Georgia objection when declarant attempts to repeat out of court statement. 3. Federal and Georgia rules, in practice, come out similarly. 4. Prior Consistent Statements
VIII.
Evidence - Milich Fall 2003 Page 45 of 93 i. Normally inadmissible unless the witnesses credibility has been attacked and the prior consistent statement rebuts the attack. ii. Testimony rebuts the attack by indicating that witnesses had made prior consistent statement. iii. In this case, testimony must be relevant to rebut an attack by indicating that prior statement was made without taint of manner of attack. 5. Prior Inconsistent Statements i. Under federal rules, can always bring up prior inconsistent statement as way to attack credibility of witness as non-hearsay subject to a limiting instruction if requested that indicates that prior statement is not to be used to prove the truth of the matter asserted. However, it is ONLY admissible to prove truth of matter asserted if given under oath subject to the penalty of perjury at trial, hearing or other proceeding, or in a deposition. 6. Out of Court Identifications i. Law has historically allowed evidence of identification out of court. ii. Restrictions a. Witness must be at trial and available for crossexamination. b. Only identification is admissible, not other statements made during the identification. c. Examples of identification 1). Lineups 2). Show ups 3). Photo array 4). Review of mug shots Hearsay – Admissions A. Party can offer the out of court statement that the opponent made at any time. 1. In criminal cases, defendant cannot offer out of court statements of the State (police). B. Admissions of party clear many of the other rules – Superadmissibility 1. Idea is that we are responsible for what we say. 2. Even if the statements were of opinion form and the person was not qualified to make the statement. C. Personal knowledge requirement does not apply to admissions. D. Kinds of Admissions 1. Personal admissions i. Out of court oral or written statements of a party. ii. Rule of completeness allows entire statement to be offered if it would help put the statement in context. 2. Adoptive Admissions i. Two Types a. Straightforward circumstances when party clearly adopts the statements of another. 1). Signing petition
Evidence - Milich Fall 2003 Page 46 of 93 2). Expressly agreeing with statement b. Admissions based upon the silence of a party 1). By not denying the statement, party has tacitly admitted the statement. 2). Requirements 1. Must be made within party‘s hearing. 2. Situation must be such that would demand a denial if statement were in fact false. 3. No rational explanation for the party‘s silence except the statement is true. 3). In criminal cases, a suspect‘s silence does not operate as an admission. 4). Exercise of Constitutional right of silence does not create an admission. 5). Prosecution, at trial, is prevented from pointing out that defendant was silent or that they did not deny an accusation. 6). Prosecution can put on evidence that accused started making a statement and then accused terminated the statement. 3. Agency Admission i. Common Law (Also Georgia) a. Follows agency theory in that agents or employees could make statements on behalf of principal or employer if statement was within scope agency or employment to speak on the issue. b. Under common law, it has to be the person‘s job to be the spokesperson OR was authorized in this particular situation to be the spokesperson. ii. Federal Rule a. Elements 1). Statement by agent or employee of party defendant 2). Was statement made during period of agency or employment 3). Did statement concern something within subject matter of agency or employment. b. Federal rule is more broad. E. Subsequent Remedial Measures 1. FRE 407 Rule 407. Subsequent Remedial Measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's
Evidence - Milich Fall 2003 Page 47 of 93 design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 2. This would be an admission by conduct. 3. Ford Pinto example 4. Party is not permitted to show that opposing party took subsequent remedial measures when it is being used to show negligence or other culpable conduct. 5. If this was permitted to be admitted, it would discourage party‘s from taking remedial action. 6. If there are other uses for evidence, such as to prove ownership, feasibility of precautionary measures, etc. it CAN be admitted. Can be used to contradict claims that it was impossible to make the product safe. i. If defense opens the door to subsequent remedial measures, it can be admitted. 7. Examples i. Rodney King Case - Civil suit against city of LA and LAPD. Plaintiff wants to offer evidence that LAPD did investigation and disciplined officers for improper conduct. This would be a subsequent remedial measure and would be excluded. Would not want LAPD to sit around and do nothing. ii. Plaintiff sues Ford for product liability on Ford Pinto. Ford had made design changes after two accidents. Remedial measure is not subsequent to plaintiff‘s accident but actually occurs a year prior to their accident. This would not be admissible because it would discourage Ford from preventing accidents. Rule is that remedial does not have to be subsequent the plaintiff‘s injury as long as it was subsequent to a similarly situated party. iii. Accident at construction site. Plaintiff complains that company‘s signage at construction site was deficient. One week after accident, DOT orders improved signage at the construction site. When party is ordered by authority to take a subsequent remedial measure, it is not violation of FRE 407 to admit the evidence. F. Offers of Compromise 1. FRE 408 Rule 408. Compromise and Offers to Compromise Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise
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Evidence - Milich Fall 2003 Page 48 of 93 discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. 2. Protects all statements offered in compromise. 3. Requirements i. Dispute as to liability or to damages 4. Can be admissible for a relevant purpose. i. For example, if offer to compromise is used to rebut charge of abusive litigation techniques. 5. In order to encourage compromise and to not deter settlement behavior, FRE 408 prevents offers to compromise from being admitted. 6. Georgia rule is not particularly supportive of offers to compromise as being inadmissible. G. Payment of Medical and Other Expenses 1. FRE 409 Rule 409. Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. ―Bad Guy‖ Hearsay A. Statements of criminals used against them or cohorts. 1. Tremendously powerful evidence. 2. Confessions i. Distinguished from admissions because of particular circumstances. a. In presence of police. ii. System needs to protect itself from false confessions. iii. Physical coercion is forbidden. iv. Confession must be voluntarily given. v. Jackson v. Denno Hearing a. Hearing to determine if confession was voluntary. b. Two stages 1). First is outside hearing of jury from all parties regarding confession. 1. Looks at both confession itself and all circumstances that might impact confession, including condition of defendant. 2). With jury 1. If judge finds by preponderance that confession was voluntary, judge will instruct jury that they must find that confession was voluntary. 2. If judge finds confession is non-voluntary, it cannot be used for anything at trial.
Evidence - Milich Fall 2003 Page 49 of 93 vi. Other Constitutional issues must be met. a. Includes Miranda warnings. vii. Procedurally deficient voluntary confessions cannot be used in prosecution‘s case in chief – this would be an offensive use of confession and is not allowed. viii. Procedurally deficient voluntary confessions can only be used for impeachment purposes. ix. Under no circumstances may an involuntary confession be used. 3. Plea Bargains i. FRE 410 Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:(1) a plea of guilty which was later withdrawn;(2) a plea of nolo contendere;(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. ii. Nothing said in plea discussions is admissible. iii. Why do we do this? a. Fear that without plea bargaining, the system would fall apart. iv. Cannot use statements made in plea discussions or even in allocution against the accused. v. Cops can lie about anything except the charges that the defendant faces. a. Can‘t tell defendant that they would be up on assault charges and victim was actually dead. b. Cannot mislead defendant as to his level of jeopardy. B. Confrontation Clause (6th Amendment)
Evidence - Milich Fall 2003 Page 50 of 93 1. Defendant has right to confront his accuser. 2. No problem if you can cross-examine the accuser. 3. Problem arises when you admit a hearsay statement but the declarant will not testify at trial (unavailable). i. Death ii. Inability to locate iii. Too ill to testify iv. When witness assets a valid privilege not to testify (i.e. 5 th Amendment) 4. When objecting for a Defendant, should always object on basis of hearsay & as a violation of Confrontation Clause. i. Want to preserve this error for appeal. ii. Harmless error doctrine – more liberally applied to hearsay than to constitutional issues. 5. No problem if hearsay declarant testifies. 6. Trial court looks at hearsay rule that prosecution is invoking as an exception & asks if it falls under a ―firmly established/firmly rooted‖ established hearsay exception. i. If so, no Confrontation Clause problem. ii. If it does not, the trial court must determine whether that statement shows particularized guarantees of trustworthiness – if trustworthy, then okay under Confrontation Clause. a. Must point to specific reasons & circumstances as to why it is trustworthy. b. Factors for particularized guarantees of trustworthiness 1). Did declarant have a motive to lie? 2). Where there any disincentives to lie? 3). Consistency of the statement from one telling to the next. 4). Was the statement apparently based on the declarant‘s own observations & personal knowledge? 5). Did the declarant have any incentives to speak as honestly & accurately as possible? 6). Declarant‘s ability to communicate. 7). Passage of time b/w the statement & the events described in the statement. c. Factors that are not relevant 1). Fact that the hearsay statement is corroborated by other evidence cannot be used as a guarantee of trustworthiness for the statement. 2). Credibility of the in-court witness who is testifying regarding the hearsay statement. C. Bruton rule – if 2 defendants are tried together & 1 defendant confesses, that confession is not admissible if it implicates the other defendant. 1. Reasoning – a limiting instruction would not be effective here
Evidence - Milich Fall 2003 Page 51 of 93 2. Ways around this problem i. Could sever the trials. ii. Could redact the confession (redaction cannot implicate other defendant though; want to avoid the appearance that a redaction has occurred). iii. Get defendant who confessed to testify. iv. Can be used if there are interlocking confessions a. Defendant 1‘s confessions should not incriminate Defendant 2 more than Defendant 2‘s confession incriminates himself – if it does, you may have to redact some of the confession. 3. Example i. Al & Bob are tried together. ii. Al confesses. iii. If confession does not implicate Bob, it is admissible, can get a limiting instruction. iv. If confession does implicate Bob, it is not admissible b/c a limiting instruction would not be effective. v. Bruton rule – prosecution must sever the trials or not use Al‘s confession b/c it does not protect Bob‘s confrontation rights. vi. If Al takes the stand, it would be okay though because Bob could cross-examine Al. vii. If Bob also confessed, & his confession was very similar to Al‘s, the Bruton rule is not a problem & both confessions are admissible (have interlocking confessions). viii. If Bob does not confess & Al‘s confession implicates Bob, Al‘s confession could be redacted. a. Redaction cannot be obvious to the jury. b. Cannot implicate Bob. D. Co-Conspirator Statements 1. FRE 801(d)(2)(E) (d) Statements which are not hearsay. A statement is not hearsay if-(2) Admission by party-opponent. The statement is offered against a party and is (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 2. Requirements i. Declarant had to be a member of the conspiracy at some point. ii. Statement had to be made during the conspiracy. iii. Statement had to be in furtherance of the conspiracy. 3. This flows out of theory of criminal law, & says that you are not only responsible for actions of other co-conspirators, you are responsible for their statements. 4. Prosecution does not have to prove all 3 requirements at first for the foundational requirements – judge may allow prosecution to make an offer of proof to let statements in before foundation is entirely laid.
Evidence - Milich Fall 2003 Page 52 of 93 5. Judge decides if the foundation (above requirements) has been laid under the FRE, but jury can take a look at it in GA. 6. Standard of proof the judge uses is by a preponderance of the evidence because this is a 104(a) issue. 7. This rule cannot embrace statements made to police though – not admissible. i. Law looks at conspiracy as being over – does not continue through a police interrogation. ii. Statements made to the police which incriminate others are not in furtherance of the conspiracy. 8. Note i. GA does not have a ―furtherance of conspiracy‖ requirement ii. Just has to be during pendency of conspirator – until perpetrators are captured or surrendered. a. Means anything co-conspirators say up until that point is admissible. b. Defense should object as violation of Confrontation Clause – this GA rule is not really a firmly rooted exception. 9. Example: Bob & Al commit a robbery, & afterwards Bob brags to his girlfriend that he & Al just robbed a bank; police arrest both of them, & they are tried separately i. At Al‘s trial, prosecution wants Bob to testify, but Bob pleads the 5 th Amendment, so prosecution wants to call Bob‘s girlfriend. a. Have hearsay & Confrontation Clause problem here 1). If Bob testified, confrontation problem would disappear. b. Is this admissible – statement is made after the conspiracy & is not in furtherance of it, so no. c. Under GA rules, this would be admissible. E. Statements Against Interest 1. FRE 804(b)(3) Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 2. Requirements i. Hearsay declarant must be unavailable to testify (physically or legally).
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Evidence - Milich Fall 2003 Page 53 of 93 ii. Out-of-court statement is so far against declarant‘s criminal interest that, given the facts & circumstances, he would not have said it if it was not true. iii. Before a trial court admits a statement against declarant‘s criminal interest that tends to exculpate the accused, it is not admissible unless there is corroborating evidence (this is a defense use of the statement). a. Also, before a trial court admits a statement against declarant‘s criminal interest that also incriminates another, it must be corroborated (from Williams case) (this is a prosecution use of the statement). 3. This is only used against non-parties; cannot be used against parties. i. Reason is that we have the admissions rule that apply to parties. 4. Note – no rule in GA since we have such a broad co-conspirator exception. 5. Statements made to police in custody that incriminate others are not admissible against those others. i. Defendant‘s desire for leniency & to get a deal. ii. Defendant trying to deflect level of culpability, which will be relevant at sentencing. iii. Defendant may use the opportunity for revenge. 6. This rule makes judges nervous, so as a tactical matter, you may want to try to fit it in under FRE 801(d)(2)(E) if you can. F. ―Bad Guy‖ Hearsay Handout 1. See separate MSWORD document Bad Guy Hearsay.doc. G. Chambers Situation 1. Defendant wanted to offer statement against penal interest that exonerated defendant. 2. Mississippi did not allow this. 3. Defendant argued that this violated Due Process. 4. Supreme Court agreed and indicated that this would be evaluated under necessity exception to hearsay. 5. Drane case in Georgia, if there is reliable trustworthy evidence, the defendant must have ability to 6. Good criminal defense attorney will not just argue necessity exception but will also argue a due process argument under Chambers/Drane doctrine. Hearsay Exceptions A. FRE 803 exceptions apply whether declarant is available or unavailable B. FRE 804 exceptions apply only when declarant is unavailable. C. FRE 807 is the Necessity Exception and requires unavailable declarant D. Federal Rules take categorical method 1. If it fits under the hearsay exception, it gets in. E. FRE 803(1), (2), and (3) 1. All three of these relate back to res gestae rule. i. Res gestae = ―things done‖
Evidence - Milich Fall 2003 Page 54 of 93 ii. Things which were said and done during the event in question are admissible. iii. Res gestae rule basically says that the jury should, as nearly as possible, see and hear everything that occurred during the event in question. iv. Historically, judges began to expand this by allowing additional statements made spontaneously after the event. v. Res gestae rule became so expanded that it was silly. vi. The more time allowed after the event, the less trustworthy the statement will be. vii. Georgia has kept this to a certain extent. 2. Federal Rules tried to take the good, salvageable things from the old res gestae rule. F. FRE 803(1) 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 2. Statements about things being perceived during event. 3. Immediately means IMMEDIATELY. i. Basically means the first moment the person could get the statement out of his mouth. 4. Two things go into trustworthiness i. Spontaneity ii. Made by one person and heard by someone else – thus, there is an ability to verify the statement. a. Includes someone listening by phone who might not be able to truly verify. G. FRE 803(2) 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 2. Excited utterances. 3. Gives a little more time – does not have to immediate. 4. More stress = longer time 5. Rationale for trustworthiness of this statement i. Persons under stress allow people to react more clearly and can record things more clearly. ii. Modern psychological theory is that this is not true. H. FRE 803(3) 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
2. 3. 4.
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Evidence - Milich Fall 2003 Page 55 of 93 The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Inward-looking Must be ―then-existing‖ – made contemporaneously or immediately thereafter. Any statement that is ―backward looking‖ will not qualify under this rule. i. If person has had time to think about statement, the less trustworthy the statement. If something is offered not to prove the truth of the matter remembered or believed, it is admissible under the rule. Use of Statements of Intent i. To prove intent – mens rea ii. Logical inference that people do what they intend a. This is more controversial use of statements of intent. b. Controversial because it is a general premise – it is not an absolute rule. c. Rationale is that allowing these statements allows jury to gather information. The Hillmon Problem i. Examples a. Murder case. Johnny charged with murdering father. Body found in dumpster behind Rosie‘s bar. 1). First witness says that he heard father say he was going to Rosie‘s bar. 1. Admissible because it is a statement of a then-existing intent offered to prove father did what he intended. 2). Witness heard mother say Johnny plans to go to Rosie‘s bar after work. 1. Not admissible because statement was of Johnny‘s intent from someone else, not Johnny. 3). Witness heard father say on day of murder that he intended to meet Johnny at Rosie‘s bar after work. 1. Inadmissible. Statement incorporates belief as to the intent of another. 2. This is the Hillmon case.
Evidence - Milich Fall 2003 Page 56 of 93 a. Issue was whether body was Hillmon‘s or Walters‘. b. Defense offered letter written by Walters indicating he intended to go to Colorado with Hillmon. Letter puts the two together. c. Basically, statement indicated that Walters intended to go to Colorado with Hillmon. ii. FRE 803(3) leaves Hillmon decision undisturbed. a. Little controversial part was to admit a statement of intent to prove that declarant did what they intended. b. Big controversial part was to admit a statement of intent to prove the future conduct of someone other than declarant. c. There is discrepancy as to whether FRE 803(3) allows both controversial parts of Hillmon. d. Problem is that it does not make sense to not allow statement of another‘s intent but yet to allow it when it is combined with intent of declarant. e. Statement of one person‘s intent to do something combined in such a way that implicates the intent of someone else. 1). I intend to meet Mr. X for coffee. 1. Indicates declarant‘s intent. 2. Also indicates Mr. X‘s intent. I. FRE 803(1), (2), and (3) Examples 1. Murder case. Roger is charged with killing Sue because she had learned of Roger‘s improper use of funds. i. Witness indicates she heard Sue tell Roger that she was going to report Roger to the IRS. a. Non-hearsay because it has an effect on hearer other than to prove the truth of the matter asserted. b. Could also admit under 803(3) arguing that it is a statement of declarant‘s intent. c. Need to have a couple of argument on how to admit. ii. Prosecution offers testimony of witness who heard someone tell Sue that ―If you rat on Roger, he will get you.‖ a. This is a statement by declarant of third party‘s state of mind. iii. Prosecution offers a witness who heard Roger‘s assistant say, ―I told Sue to lay off Roger, or else Roger would get her.‖ a. No admissible under 803(3) because it is a statement by declarant that is backward looking and to show intent of third-party. iv. Prosecution offers witness who was told by Sue that she was afraid Roger would have her killed.
Evidence - Milich Fall 2003 Page 57 of 93 a. Not admissible because it indicates both declarant‘s thenpresent state of mind and also of her fear that Roger would kill her. b. Would have to use limiting instruction, redaction, weigh the probative value against prejudice under FRE 403. Little probative value of Sue‘s fear versus high prejudice to Roger. J. FRE 803(4) 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 2. People are unlikely to lie or be careless in their statements to physicians. 3. Not concerned as much because there is an incentive for statements to be made truthfully. 4. Examples i. Joe brought in to emergency room. Wife states that he is allergic to penicillin. a. Admissible under 803(4) ii. Joe brought in to ER. Wife states he fell off of bike and hit his head. a. Admissible under 803(4) b. Provides clues to treatment and how physician should proceed. iii. He complained of chest pains last night. a. Admissible under 803(4) b. This is backward looking because it deals with medical history. c. Would even allow double hearsay – if wife said that two years ago doctor diagnosed Joe as having diabetes, this would be admissible. iv. A car hit him when he was in the crosswalk. a. Not admissible because the fact that he was in a crosswalk is not relevant to medical diagnosis or treatment. b. Could redact, etc. v. Joe is unconscious, wife tells ambulance driver Joe had chest pains last night. a. Admissible because it is reasonable that declarant would think that statement would go up chain for medical treatment.
Evidence - Milich Fall 2003 Page 58 of 93 b. If statement believes that statement will go up, the incentives are there for declarant to make truthful statement. vi. A statement by a physician to a patient that he would never play the piano again. a. Not admissible. Only statements coming from declarant TO physician would be admissible under the rule. b. No physician to physician statements, etc. 5. Also applies to psychologists, psychiatrists, etc. K. FRE 803(6) – Business Records Exception 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. 2. Records of Regularly Conducted Activity 3. Federal Rules allow affidavit instead of live testimony to establish foundation as to business records. 4. Georgia still requires live testimony for laying foundation as to business records. 5. Every out-of-court document is a statement by a declarant – the preparer of the record – that is potentially hearsay. 6. One of the earliest hearsay exceptions. 7. Can be used for any organized activity – business, religion, charity, or any other group that has routine record-keeping. 8. Only applies to private records – public records are in FRE 803(8). 9. Covers a memorandum or report in any form (but not oral), including on computer memory. 10. Must be on form that is stable and can be called up on demand. 11. Covers acts, events, conditions, opinions, or diagnoses. i. Georgia still does not allow opinions in record. ii. Diagnoses is there for medical providers.
Evidence - Milich Fall 2003 Page 59 of 93 12. Made at or near the time of the event. i. This is the contemporaneousness requirement. 13. Made by or from information transmitted by a person with knowledge. 14. Must qualify the preparer by showing that preparer was acting in ordinary course of business by preparing the record. i. Can be proved by FRE 406, the routine practice rule. 15. Must qualify sources by two things: i. Information transmitted by that source must be based on personal knowledge of that source, and ii. Source was acting in ordinary course of business in collecting and recording the event. 16. Must be shown by custodian or other qualifying witness or by certification. 17. Unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. i. Most frequent thing that will cause it to be not trustworthy is that the document was prepared in anticipation of litigation. ii. This does not mean that the entire document will be inadmissible – the documents may be able to be redacted so that routine facts or circumstances might be allowed. Only where there is a motive to fabricate or ―spin‖ the facts will the information not be admissible. iii. However, may be able to get statement in under ―Past Recollection Recorded‖. 18. Establishing Foundation for Business Records Exception i. Mark and Have Witness Identify the Document a. Clerk marks the document as a certain exhibit number. b. Can have this done pre-trial. c. Could ask opposing party to admit or deny if the document is an admissible business record. ii. ―Made and Kept‖ 19. Example i. Law School Transcript a. Sir can you tell us your name? b. Where are you employed? c. How long have you been the registrar? d. What is your responsibility? e. Give trial judge and opposing counsel a courtesy copy of document. f. Handing you, Mr. Jones, a document that has been marked as plaintiff‘s exhibit #1. g. Do you recognize the document? h. Is this document the kind of document made and kept in ordinary course of registrar‘s business? 1). Leading is allowed here.
Evidence - Milich Fall 2003 Page 60 of 93 i. Is it the routine practice of the registrar‘s office that the people preparing these documents are acting in the routine course of business? j. Qualify Sources 1). Acting in ordinary course of business. 2). Acting from personal knowledge. k. Is it the routine practice of the faculty to record the student‘s grades at the time the grade is determined? 1). From the time of the event described to the memorialization cannot be a long period of time. l. Offer the document into evidence. 1). May want to work with the witness or might want to show the document to the jury – this is called publishing the document. 20. Midley, Brindley, & Foss Handout i. Potential Problems with document a. Louie the steelworker might not qualify as an expert in concrete. b. The record was made on 4/8 and the inspection was done on 4/6. 1). Would have to probe as to whether field notes were made on 4/6. Would have to cover on the foundation. c. Opponent might object to the document, indicating that the circumstances do not indicate trustworthiness. d. Barb‘s opinion as to Eddie‘s knowledge is OK. However, would need to establish that Barb is a concrete expert. Would need to show Barb is a licensed architect and that she would therefore have knowledge of concrete. e. Louie‘s statement that he suspects that they used too much sand to make the concrete would also be hearsay. ii. Establishing Foundation for Document a. Questions for Witness 1). Sir, could you please tell us your name? 2). And Mr. Brindley, where are you employed? 3). How long have you been with the firm? 4). What is your position with the firm? 5). Handing you, Mr. Brindley, what has been marked as Defense exhibit #3. Do you recognize this type of report? 6). Is this the kind of report that is made and kept in the ordinary course of business at the firm? 7). In looking at the preparer of this report, Barb Jones, do you know Barb Jones? 8). What does Barb Jones do for your firm?
Evidence - Milich Fall 2003 Page 61 of 93 9). To the best of your knowledge, is Barb Jones a licensed architect? 10). Is it the routine practice for an architect to prepare a report such as this based upon a personal inspection of the job site? 11). Is the preparation of these types of reports something that is done in the ordinary course of an architect‘s duties? 12). Additionally, it appears that Barb Jones was assisted by Sam Kinison on this project. Do you know Sam Kinison? 13). What does Sam Kinison do with your firm? 14). Is it the routine practice of the architects to use assistants to help them with site measurements and determining the data used for the report? 15). Do the assistants report their measurements based on personal knowledge to the supervising architect for use in preparation of the report? 16). Is it routine practice for the architect to prepare the field inspection report on the site or upon return to the office? 17). Typically, what would be the maximum length of time between the field inspection and the creation of the report? 18). Thank you, Mr. Brindley. I now offer Defense exhibit #3 into evidence. Your honor, may I publish the report to the jury? L. FRE 803(8) - Public Records Exception 1. Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 2. Three categories i. Activities of the office or agency a. Admissible by anyone in any action. b. No problems with credibility
Evidence - Milich Fall 2003 Page 62 of 93 ii. Matters observed pursuant to a legal duty a. Involves some credibility b. Off-limits to prosecution c. Only defense can use d. In civil case, either side can use iii. Factual findings made pursuant to authority granted by law a. Can be declined by trial judge if there are circumstances indicated a lack of trustworthiness 1). See Beech Aircraft for factors b. Cannot be used by prosecution c. Only defense can use 3. Examples i. Police report that states officer saw Terry climbing out of house that later burst into flames. a. Prosecution cannot use – 803(8)(B) b. Could use by either party in civil case ii. Police report where officer interviewed a guard who said he saw Terry leave house right before house burst into flames. a. Guard‘s testimony would probably qualify independently under 803(2) – excited utterance. Police officer‘s report would be allowed in civil case. M. FRE 804 – Hearsay Exceptions; Declarant Unavailable 1. Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant— (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
Evidence - Milich Fall 2003 Page 63 of 93 (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) [Transferred to Rule 807] (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 2. Hearsay Exceptions i. Former Testimony
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Evidence - Milich Fall 2003 Page 64 of 93 a. In order to qualify under former testimony exception, there must be availability of cross-examination. Thus, grand jury testimony does not qualify. ii. Statement Under Belief of Impending Death iii. Statement Against Interest iv. Statement of Personal or Family History v. Forfeiture by Wrongdoing N. FRE 807 – Residual Exception 1. Rule 807. Residual Exception A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. 2. Statements that do not fall under 803 or 804 but have equivalent circumstantial guarantees of trustworthiness may be admitted under this exception. 3. Must give notice under Federal rules. 4. In Georgia, you do not have to give notice. 5. FRE 806 basically says that any tool that can be used to impeach witness can be used to impeach hearsay declarant. 6. Three requirements for use of this exception i. Must be a necessity for hearsay to be admitted. a. Declarant is unavailable. ii. Evidence has to be more probative on the point than any comparable evidence. iii. There must be circumstantial guarantees of trustworthiness. a. There must be factors indicating trustworthiness. 7. This is not a firmly rooted categorical hearsay exception. i. If prosecution offers hearsay under 807, prosecution must satisfy confrontation issues and show particularized guarantees of trustworthiness. Expert Testimony A. FRE 702 Rule 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
Evidence - Milich Fall 2003 Page 65 of 93 witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. B. FRE 703 Rule 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. C. FRE 704 Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. D. FRE 705 Rule 705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. E. FRE 706 Rule 706. Court Appointed Experts (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have
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Evidence - Milich Fall 2003 Page 66 of 93 opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. (c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection. Most controversial area of evidence right now. 1. Technological advances 2. More reliance on experts to help sort this out Ultimately, it can become a battle of the experts. Dilemma with scientific evidence is that there is no way to do trials without expert testimony AND the science is novel, perhaps not well tested out, and difficult for the average juror to understand. Controversial Areas of Expert Testimony 1. To what extent should trial court screen expert testimony – Daubert case. i. Standard of Frye case was that until something reached consensus of scientific acceptance, it was not accepted in the courtroom. ii. Originally, Federal Rules were very lenient. a. Basically, allowed testimony under a FRE 401 type of analysis. iii. Daubert Case Re-wrote the Rules for Expert Testimony a. Under Daubert, trial judges have the responsibility to act as gatekeepers and to only admit expert testimony if it is shown to be scientifically reliable. b. Trial judge may use opinions of experts in the field, review scientific journals, etc., but it is up to the trial judge to determine if the evidence is scientifically reliable. c. One problem with Daubert is that it puts everything in the lap of the trial judge. d. Court gave factors for trial judges to consider in order to determine scientific reliability. 1). See p. 208-209 in Federal Rules book.
Evidence - Milich Fall 2003 Page 67 of 93 e. Daubert challenge is a pre-trial challenge to other side‘s expert testimony that argues that testimony is not reliable. f. What makes Daubert challenge so effective is that if it is granted, the case is basically over. 1). Could appeal, but appellate court typically shows great deference to trial court when deciding admissibility of expert testimony. 2. Issues and Problems with Behavioral Sciences i. There are many Behavioral Science theories that are not extremely well grounded in science. ii. First problem is to what extent these theories can be admitted. a. Courts tend to not insist so much on empirical basis in order to admit. b. However, courts do require peer review in the scientific community. 1). Basically, must be able to satisfy peers that there is no errors in theory. c. Behavioral sciences sometimes get perilously close to testifying as to the truth of the assertions made by a party to the case. 1). Example is a rape counselor who testifies as to alleged rape. 2). Another example is child abuse accommodation syndrome testimony by social worker who indicates that the child was abused. d. Behavioral Science is useful in helping bridge the gap between the scientific knowledge and the jury‘s understanding. 1). Experts were useful in educating the jury. e. Behavioral Science has also been useful in pointing out the problems with eyewitness testimony. 1). Courts now typically admit expert testimony that indicates problems with eyewitness testimony when it is a critical component against the accused. 2). Used mainly to educate the jury. 3. Use of Statistics i. Growing use of statistics in cases. a. DNA b. Employment discrimination c. Environmental d. Epidemiology studies e. Etc. ii. One problem is the law‘s incompetence with dealing with numbers. iii. Another problem is the incompetence of the jury in dealing with numbers.
Evidence - Milich Fall 2003 Page 68 of 93 iv. Another problem is that people have a difficult time reaching decisions based solely on statistical improbability testimony. a. Law is supposed to be search for truth and mistakes will be made if we become too reliant on probability testimony. J. Nuts and Bolts of Expert Testimony 1. Three Requirements Under Federal Rules i. Expert is qualified to testify a. Generally, courts will not allow stipulation to an expert‘s qualifications. b. Must show that through education, experience, or training that expert knows more than average juror. c. Cannot ask questions of witness until they are qualified. 1). Bifurcated process. 1. Qualifying questions 2. ―At this time, we submit....as an expert.‖ 3. Go on with actual questioning. 2). Should ask questions to qualify witness that show the qualifications to testify as to the actual issue in the case. 3). Opposing counsel can cross-examine witness as to their qualifications. d. Judges more and more do not expressly indicate that a witness is an expert because it basically is a comment as to the trustworthiness of the expert to the jury. ii. Testimony is reliable and accepted.??????? iii. Expert opinion will help the trier of fact. K. Four Bases by Which an Expert can Offer Opinion 1. Bases i. Personal knowledge ii. Facts admitted at trial iii. Facts reasonably relied upon by experts in the field that are NOT admitted into evidence iv. Facts not reasonably relied upon by experts in the field that NOT admitted into evidence 2. Traditionally, experts could only testify based on 1 or 2 or a combination. 3. Traditionally, experts could only testify based on 3 through the use of a hypothetical example. 4. Current rule FRE 703 allows the use of 3. 5. 4 is still not allowed. L. Expert Testimony Handout 1. Testimony of Accident Reconstruction Expert i. Can object to lack of foundation or speculation by expert witnesses. ii. Laypersons can give opinion testimony only when they have personal knowledge.
Evidence - Milich Fall 2003 Page 69 of 93 iii. Only experts can give opinion testimony when they do not have personal knowledge. iv. Opposing counsel should speak up if they do not believe expert is qualified. The proponent may not stop and submit the witness to the court as an expert. v. Opposing counsel can indicate that they reserve the right to object to the qualifications of the expert if the testimony moves into areas where qualifications have not been established. a. The court probably prefers this because it is an expedient and efficient way to get to the testimony. vi. Testimony that calls for a legal conclusion from a witness is not allowed – this is an ultimate issue and is the function of the jury. a. Invades province of the jury. b. However, he can give his opinion and the jury can make up their mind. vii. Attorney cannot take a witnesses statement and make it into a statement of fact. a. Example – after witness testified as to his opinion and then attorney questioning makes it into a statement of fact. viii. Testimony cannot be hearsay or it must fit into a hearsay exception. However, experts can base an opinion on inadmissible evidence when it is 1.)of a type reasonably relied on by experts in the particular field but 2.) cannot disclose the information to the jury UNLESS the court determines that the probative value outweighs the prejudicial effect. FRE 703. a. Must show that the evidence is reasonably relied on by experts in the field, not simply his personal practice. b. As long as person can testify personally that techniques are shared by experts, the reasonable reliance on the evidence is established. c. Want the jury to be able to see enough of the facts upon which the expert relied so that the expert testimony is ―transparent‖. Jury must be able to evaluate the value of the expert testimony. 1). Probative value is necessary in order for expert‘s testimony would be valuable. 2). Prejudicial effect would be in admitting hearsay evidence. 3). Could also ask for a limiting instruction to alleviate the apparently prejudicial effect of the testimony. ix. Witness must be qualified to comment or offer an opinion. 2. Testimony of Police Officer i. Must show that officer is qualified to speak as to ability to detect marijuana.
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Evidence - Milich Fall 2003 Page 70 of 93 ii. Police officer would not be able to testify as to whether the defendant was under the influence of marijuana. M. Tactical Aspects of Expert Testimony 1. There may be occasions when counsel would NOT want to object even when they could because the opposing counsel is doing a bad job – this could be good for the case. Character Evidence A. FRE 404 Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (a) Character Evidence Generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of Accused.--Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim.--Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of Witness.--Evidence of the character of a witness, as provided in rules 607, 608, and 609. (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. B. FRE 405 Rule 405. Methods of Proving Character (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim,
Evidence - Milich Fall 2003 Page 71 of 93 or defense, proof may also be made of specific instances of that person's conduct. C. FRE 406 Rule 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. D. FRE 412 Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.— (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility.— (1) A party intending to offer evidence under subdivision (b) must— (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for
Evidence - Milich Fall 2003 Page 72 of 93 good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. E. FRE 413 Rule 413. Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved— (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)- (4). F. FRE 414 Rule 414. Evidence of Similar Crimes in Child Molestation Cases (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence
Evidence - Milich Fall 2003 Page 73 of 93 to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved— (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, United States Code; (3) contact between any part of the defendant's body or an object and the genitals or anus of a child; (4) contact between the genitals or anus of the defendant and any part of the body of a child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)- (5). G. FRE 415 Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. H. The 11 Rules of Substantive Character Evidence, Similar Acts, and Habit 1. The circumstantial use of character evidence is not permitted in a civil case. 2. When character is in issue in a civil case, evidence of the pertinent character trait is admissible and may be proven by reputation, opinion, and specific instances of conduct.
Evidence - Milich Fall 2003 Page 74 of 93 3. In a criminal case, the prosecution may not offer character evidence concerning the defendant in its case in chief. 4. In a criminal case, character evidence of a pertinent trait of the defendant is admissible if offered by the defendant, after which the state may offer rebuttal evidence. Proof may be made only by reputation and opinion. 5. In a criminal case, character evidence of a pertinent trait of a victim is admissible if first offered by the defendant, after which the State may offer rebuttal evidence as to the victim as well as on the same trait of the defendant. Proof may be made only by reputation and opinion. 6. In a homicide case, if the defendant offers evidence that the deceased was the first aggressor, the prosecution may then offer rebuttal evidence of the peacefulness of the victim. Proof may be made only by reputation and opinion. 7. In a criminal case, when character is an essential element of a charge, claim, or defense, proof may be made by reputation, opinion, and specific instances of conduct. 8. Any character witness may be cross-examined concerning that witness‘s knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed; the cross-examiner must have good faith proof that the acts occurred. 9. Similar Acts – Specific instances of conduct are admissible to prove intent, motive, plan, design, or any purpose other than character, so long as the probative value of the evidence as to its not-for-character purpose is not substantially outweighed by the risk of prejudice, confusion, and undue delay. 10. Habit – Evidence of habit is admissible to show that conduct conformed to habit. 11. The rules on character and bad act evidence are applied differently in cases involving rape or sexual abuse – evidence of the victim‘s prior sexual activity is more strictly regulated, while evidence of the defendant‘s bad acts is more permissively treated. I. General Background and History 1. Interesting and Controversial Area of Evidence i. Inadmissibility of character evidence has been eroded over time. 2. Same kind of two-step analysis as hearsay evidence. 3. Using character as a predictive device is typically OK. 4. However, in criminal cases, inferring propensity through character is looking historically to determine if criminal is more likely to have committed the act. 5. There is no Constitutional requirement for inadmissibility of character evidence. 6. Justifications for Character Rule i. Don‘t want a jury to convict someone just because of their bad character.
Evidence - Milich Fall 2003 Page 75 of 93 ii. Concern that opening up evidence of character of defendant would be unfair because defendant would be unable to defend against every character issue in their life. a. Can get around this by notice requirement. iii. Sportsman‘s Theory – not sportsmanlike to be able to bring in character evidence, only should be able to convict based on evidence of crime. a. Problem with this justification is why would justice require the withholding of information on which to make an informed decision. b. Another problem is that character evidence still comes in. iv. Idea of Christian redemption – previous sins should not be held against a defendant by admitting character evidence. v. Overvaluation Theory – juries overvalue character evidence and give it more probative value than it deserves. Juries overvalue the probability that one who has committed a crime is more likely to have committed the present crime. a. Problem is that no one has explained whether this is true or not – juries simply may be correctly valuing it. vi. 403-Type Argument – The prejudicial effect outweighs the probative value of the character evidence. 7. Ultimately, this has to do with jury decision-making. 8. Fears that dominate jury‘s thinking. i. Fear of wrongful conviction. a. This is a moral problem for the jury. ii. Fear of wrongful acquittal. a. This is also a moral problem for the jury. 9. Character evidence both helps and hurts juries to decide correctly. i. Helps with moral capability of accused issue. a. Problem with character evidence only comes up when evidence is close. ii. Hurts because, in absence of evidence to the contrary, the jury is to assume that the accused is innocent and will extend to the accused the benefits of character. Therefore, it hurts the ability of the jury to decide correctly when there is no character evidence admitted. 10. Hypo i. D charged with robbery of convenience store. Prosecution offers evidence that D was previously convicted of burglary. a. Relevant because it shows the person is more likely to commit a burglary than others. b. Not admissible to prove the character or propensity inference. c. Would be admissible for other purposes. 1). Other purposes would be to prove 1. Motive 2. Opportunity
Evidence - Milich Fall 2003 Page 76 of 93 3. Intent 4. Preparation 5. Plan 6. Knowledge 7. Identity 8. Absence of mistake or accident 11. Reasons for Erosion of the Character Evidence Rule i. Backlash against crime and criminals. ii. ―Victims Rights‖ Movement 12. Criminal Defense Bar Arguments Against Erosion 13. Exceptions to Inadmissibility of Character Evidence i. Non-propensity uses of character evidence are allowed. J. Character of the Accused 1. FRE 405 2. Methods of Proving Character i. Admissible evidence of character may be proven by testimony as to reputation or as an opinion. a. On direct examination, this is all that is allowed – no inquiry into specific instances of conduct. b. In cross-examination, inquiry is allowable into relevant specific instances of conduct. 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. a. An example is a defamation case where element of charge is to prove that what the defendant said was false. b. Another example is wrongful death case. Family is suing for loss of consortium. An essential element of defense would be that the person was worthless. K. Ways to Attack Character Evidence 1. Cross-examination of character witnesses. i. Cross-examination is very powerful ii. Michelson case holds that there must be a good-faith basis to believe facts raised on cross are, in fact, true. iii. When questioning about relevant specific instances of conduct, must accept witnesses answer to ―did you know‖-type questions. a. Rationale is that courts don‘t want to try other cases within the case. This would be extrinsic evidence as to the issue. iv. The question must be directed to what accused DID, not to what another party did. Basically, cannot ask about arrests or indictments because these are things done TO someone. The exception is that you can ask about CONVICTIONS. 2. If defense has opened the door as to accused character, the prosecution may call character witnesses to rebut the testimony. i. Defense could then ask about specific instances of conduct. L. Federal Rules only Allow Only Pertinent Character Evidence
Evidence - Milich Fall 2003 Page 77 of 93 1. Character evidence must relate to the crime charged. i. Could not indicate that accused was peaceful when they were charged with embezzling. 2. Defense can open door wide by using character testimony that indicates that accused is ―a good man‖ or narrowly by testimony that indicates that accused is ―honest‖. i. Prosecution can only use evidence as broad as the defense has defined. M. Evidence of Other Crimes, Wrongs, or Acts under FRE 404(b) 1. Inadmissible because it indicates propensity to commit act. However, would be admissible for (non-exclusive) i. Motive ii. Opportunity iii. Intent iv. Preparation v. Plan vi. Knowledge vii. Identity viii. Absence of mistake or accident ix. Evidence of prior difficulties x. Anything defendant did during act in question is admissible, even if it reflects badly on character. a. In Georgia, this is part of res gestae. b. In Federal courts, it is intrinsic or intrinsically intertwined. c. An example is a bank robber who uses cocaine while robbing bank but is not charged with this. It would be admissible under FRE 404(b). 2. Procedures for Using FRE 404(b) i. Notice a. In federal courts, defense must request and the prosecution must provide notice of intent to use the evidence. b. In Georgia, defense does not have to request and prosecution must always provide notice. ii. Prosecution must prove other crime, wrong, or act by a preponderance of the evidence. a. Evidence of a conviction is not normally sufficient. iii. Can request limiting instruction under FRE 105 and balancing under FRE 403. 3. FRE 404(b) involves any other crimes, wrongs, or acts. 4. Examples i. D is charged with murdering prostitute. a. Testimony to indicate that D was a customer would be admissible because it would show a connection between D and prostitute. b. Testimony that indicates D was using cocaine on evening in question would be admissible because it goes to D‘s state
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Evidence - Milich Fall 2003 Page 78 of 93 of mind. D could argue that there is not necessarily a connection between murder and drug use. Probably would want to ask court to evaluate under 403 balancing test. c. Evidence that D is a heavy cocaine user. Not admissible because party cannot get into the 404(b) by offering propensity evidence. D is charged with importation of drugs. D claims he was duped into bringing drugs into country in duffel bag. a. Prosecution offers evidence that D was convicted of illegal smuggling of marijuana. Admissible when the prosecution argues that D had knowledge and is not as naïve as he claims in his defense. b. Evidence of a few witnesses that say that D told them that he had smuggled drugs into the country on numerous occasions. Would be admissible to show knowledge of drug importation techniques. D is charged with selling cocaine to undercover police officer. a. Testimony of officer that he saw what looked like sale of cocaine to others by D 35 times that same night. Admissible for showing that D had a plan for selling cocaine out of his car. b. Evidence of conviction of D in 1988 for selling cocaine. Prosecution would argue that D knows how to acquire and sell cocaine. Defense would argue that there is low probative value because it does not take special skill to sell cocaine and is highly prejudicial because this charge is for the exact same crime. c. What if it is added that D was convicted of selling cocaine out of a car in a night club parking lot. Prosecution would argue that this shows modus operandi or plan/scheme. What should be evaluated is whether these facts distinguish this defendant from other people who sell drugs. D is charged with armed robbery of liquor store. a. Prosecution has evidence that D owed money to a mean loan shark. Admissible because it shows motive. b. Prosecution has evidence that D bought $200 worth of crack cocaine after robbery. Admissible because it shows motive. c. Prosecution has evidence that D is addicted to crack cocaine and has no visible means of support. This requires bootstrapping of character evidence to create a motive and would require the court to perform a 403 analysis. Most courts would allow if probative value outweighed prejudicial effect of the evidence. Civil case. Plaintiff tenant sues landlord for negligent security after P is attacked an injured in parking lot.
Evidence - Milich Fall 2003 Page 79 of 93 a. P offers into evidence 5 previous incidents of similar conduct. Would be admissible as notice to the landlord of security problems. vi. Civil case. Plaintiff sues defendant for fraud in selling used parts as new. a. P offers evidence that this occurred 10 times previously. Would be admissible because this would be evidence of plan or scheme to deceive. b. P has evidence that D rolled back odometers on cars that he sold 6 months ago. There really is not a readily apparent 404(b) purpose for admitting the evidence – might be able to show intent to engage in deceptive acts. Some courts might recognize this to show state of mind. vii. Civil case. D trucking company is being sued for negligence. P alleges that D was negligent for allowing truckers to drive without proper rest as required by law. a. P has evidence that D had been cited 10 times for drivers exceeding maximum drive time. Non-character use would be that evidence shows notice to the company that this was occurring. b. P has evidence that another driver for D‘s company killed someone after driving well past the drive time limits. This would be subject to 403 balancing because it is limited in terms of probative value but is highly prejudicial. Would be allowed if punitive damages were sought because evidence would go to willful disregard. N. FRE 413, 414, and 415 1. FRE 413 – Evidence of Similar Crimes in Sexual Assault Cases 2. FRE 414 – Evidence of Similar Crimes in Child Molestation Cases 3. FRE 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation 4. In 1980‘s and 1990‘s, there was a strong effort to remove strictures imposed by the character evidence rules with regard to these types of crimes. 5. These three Rules were promulgated by Congress and did not go through the normal procedures for making the Rules. 6. Rules were created by lobbying groups. 7. Judicial conferences overwhelmingly voted against these three rules because there was no justification for treating these crimes differently. 8. The arguments for treating these crimes differently i. Will make it easier to put people behind bars for these offenses. However, it makes it more likely that innocent people will be found guilty. ii. Sex offenders self-identify by committing these acts and persons who commit these types of acts should be identified as such. O. Character of Victim
Evidence - Milich Fall 2003 Page 80 of 93 1. FRE 404(a)(2) 2. 404(a)(2) allows evidence of character of victim if it is pertinent in some respect to resolving issues in the case. i. Must pertain to a legal defense. 3. Evidence of the character of victim is limited to reputation or opinion evidence on direct examination. 4. Evidence of the character of victim can be specific instances of conduct on cross-examination. 5. Level of sophistication of victim is always relevant in fraud cases because reasonable reliance is an element of fraud. 6. Before Rape Shield Statutes, victim‘s character often came in under 404(a)(2). i. Allowing evidence of victim‘s sexual history has several impacts – illegitimate inferences. a. If victim was not chaste prior to assault, there is no real loss. b. A woman who engaged in sexual behavior in past was less worthy of protection of laws. c. Use of victim‘s sexual history makes it so painful and humiliating to victim that they will choose not to go forward. 7. Rape Shield Statutes i. Protect character of victims except in narrow circumstances. a. Exceptions 1). If consent is an issue, defense could offer evidence of previous sexual contact between victim and accused. 2). If prosecution offers physical or psychological evidence, defense may offer evidence of prior sexual conduct that would absolve defendant of charge. b. Procedure 1). Defense must make written motion to judge. 2). Would have to show a nexus between what was sought to be proved and something at issue in the case. 3). Judge holds in camera hearing outside presence of press and jury where judge examines evidence and witnesses. Judge is also supposed to balance probity with prejudice. ii. FRE 412 is the federal version of rape shield law. iii. FRE 412 requires a showing of relevance, iv. Problems with Rape Shield Statutes a. False allegations are difficult to prove when rape shield statute is involved.
XIII.
Evidence - Milich Fall 2003 Page 81 of 93 1). Must be very good evidence that allegations are false. b. Should defense be allowed to present evidence of what the alleged victim was wearing? 1). Tension between defendant being able to present their side of the story but there must be rape shield statute to guard against abuses. P. Habit and Routine Practice 1. FRE 406 2. Habits refer to what people as individuals do. i. Must be more than a tendency or propensity. ii. Must be reflexive response with no deliberation. iii. Must be a regular, repeated response to a specific situation. iv. Must establish foundation in order to admit. a. Would want to show how long witness had known person. b. Would want to show that person was smoker up until death. c. Would want to show that witness observed behavior of the person. d. Would want to show that trigger to response was there at the time. v. Would never allow habit to be stated in general terms. a. Example ―habit of a good driver‖. vi. Things that require judgment or deliberation are NOT habits. vii. Would not allow testimony that someone was a ―habitual‖ drunk. 3. Routine practice refers to how companies operate. i. Generally, find that routine practice is more liberally admitted. ii. Much more lenient in terms of admissibility. Impeachment A. FRE 607 Rule 607. Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness. B. FRE 608 Rule 608. Evidence of Character and Conduct of Witness (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or
Evidence - Milich Fall 2003 Page 82 of 93 untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being crossexamined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. C. FRE 609 Rule 609. Impeachment by Evidence of Conviction of Crime (a) General rule. For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
Evidence - Milich Fall 2003 Page 83 of 93 (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. D. FRE 610 Rule 610. Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. E. FRE 613 Rule 613. Prior Statements of Witnesses (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a partyopponent as defined in rule 801(d)(2). F. FRE 806 Rule 806. Attacking and Supporting Credibility of Declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. G. When we deal with the credibility of the sources of testimony, we are dealing with impeachment. H. Once impeached, a witness can be rehabilitated to show that witness was correct in their testimony.
Evidence - Milich Fall 2003 Page 84 of 93 I. Two Basic Means of Impeachment 1. Cross-Examination i. On Cross-Examination, can confront witness with contradictory evidence. ii. After confronting on cross-examination, can then only bring in admissible extrinsic evidence as below. 2. Extrinsic Evidence i. ONLY if the contradictory evidence relates to a non-collateral matter (it goes to a substantive issue in the case), can extrinsic evidence be offered. If the subject matter of contradictory evidence is a collateral matter, it cannot be followed up with extrinsic evidence. ii. Bias or Prejudice is NEVER a collateral matter. Thus, you can follow up with extrinsic evidence. J. Bias – Favor Party or Prejudice – Disfavor Party 1. Several Ways for Bias i. Related to a party in the case. ii. Interest in the outcome of the proceedings (financial, etc.). iii. When witness is paid off. 2. Specific bias is bias against a specific party. 3. General bias is bias against a class of persons in general. i. Law basically takes presumption that general bias is not to be addressed. ii. Rule basically has become that only extraordinary evidence of general bias that has bearing on case is allowed to be introduced. K. Veracity – Whether Witness is Telling the Truth 1. Four Methods of Veracity Impeachment i. He‘s a criminal! ii. He‘s a known liar! iii. He‘s made inconsistent statements regarding this case! iv. He‘s lied before! L. Who can be impeached? 1. FRE 607 i. The credibility of a witness can be attacked by any party, including the party calling the witness. 2. Can also impeach hearsay declarant under FRE 806. 3. Vouching Rule i. Federal rules have abolished. ii. Common law was that if you called witness, you could not impeach. iii. Most states have abolished. iv. Georgia still maintains some parts of the vouching rule. 4. Sometimes, it may be tactical decision to do a pre-emptive impeachment. i. Takes the sting out of the defense‘s cross-examination. 5. When can you bolster, sustain, or rehabilitate the credibility of a witness?
Evidence - Milich Fall 2003 Page 85 of 93 i. You are not allowed to present evidence bolstering, supporting, or sustaining witness‘s credibility unless and until their credibility has been attacked. ii. Do not have to rehabilitate a witness‘s testimony unless it has been attacked. M. FRE 609 – Impeachment by Evidence of Conviction of Crime 1. All Witnesses Other than Criminal Defendant i. Basically, any witness who takes the stand has put his veracity in question. ii. Only felony (crimes with sentences greater than one year) crimes are admissible. iii. Do not allow impeachment by prior misdemeanor – only serious crimes. a. Reasons 1). Do not demonstrate serious moral turpitude. 2). People sometimes make decision not to fight misdemeanor prosecution. iv. Levels of Probative Value a. Crimes involving deception (crimen falsi) are allowed to be admitted no matter their punishment. b. Crimes which involved planning or premeditation would also be probative. c. Crimes of passion that indicate a reaction to stimulus are low in probative value for credibility. d. Least probative are crimes which involve moral turpitude. e. At its most basic level, it is about whether crime really makes it more likely that person would lie under oath. v. Time Limits a. Presumption is if it has been more than 10 years since the person was convicted or released from confinement, whichever is later. b. This presumption can be rebutted if other party can show why court should allow the evidence. vi. Procedure a. Confront witness with prior conviction. b. Not allowed to get into specifics of prior crime. c. Can point out charge, where convicted, when convicted, and sentence. d. If witness denies it, you are allowed to follow up attack with evidence of prior conviction. e. Could get in a certified copy of a record of conviction using FRE 803(8), 902(4), and 1005. f. If we impeach the other party with a prior conviction, they are entitled to a limiting instruction. g. Can rehabilitate only if credibility is attacked. 2. Witness is the Criminal Defendant
Evidence - Milich Fall 2003 Page 86 of 93 i. Georgia still prevents prior convictions from being used unless the accused. ii. Under federal rules, if criminal defendant testifies, the prior felony convictions (non crimen falsi) are admissible if the court determines that the probative value simply outweighs the prejudicial effect to the defendant. iii. No balancing test if the prior convictions are crimen falsi. iv. Juries are skeptical when the criminal defendant does not take the stand. v. Would look at prejudice in context of what other evidence will be admitted. vi. Two other things are looked at for prejudice. a. How horrible the prior crime was. If horrible, it would be prejudicial. b. How similar the prior crime is to the current crime. If more similar, it would be more prejudicial. 3. The only legitimate inference under FRE 609 is that since the witness was convicted of a crime, the testimony is less credible. N. Character Witnesses 1. Can put on witnesses that indicate credibility of prior witnesses. 2. FRE 608(a) 3. Procedure i. Lay foundation ii. Testimony as to reputation of the witness. iii. Cannot elicit specific instances of conduct on direct. iv. Opinion as to credibility of the witness. 4. Must relate to trustworthiness. 5. Once witness has been attacked, then we can rehabilitate that witness‘s credibility. 6. Can raise specific instances of conduct on cross-examination. O. Prior Inconsistent Statements 1. Major reasons why people don‘t tell the truth at trial. i. People who have come up with a story and are trying to stick to it. ii. People who are just not careful with the truth. 2. Need to show that witnesses have made prior inconsistent statements. 3. It is a very powerful form of impeachment because juries understand how it works and discount accordingly. 4. Ultimately, you want to get an admission, denial, or inability to recall. 5. If they deny or are unable to recall, you will be allowed to put on extrinsic evidence that points out the inconsistencies in the statements. 6. Queen Caroline‘s Rule i. At one time had Queen Caroline‘s Rule which required you to first confront with time, place, and circumstance of prior inconsistent statement before pointing out the prior inconsistent statement to the witness. a. Georgia still follows this Rule.
Evidence - Milich Fall 2003 Page 87 of 93 b. Federal Rule allows you to try the ambush tactic that tends to make witness look more like a liar. ii. Witness would then be allowed to explain or deny it prior to putting on extrinsic evidence. a. Georgia AND Federal Rule have kept this part of Queen Caroline‘s Rule. P. Witness Has Lied Before 1. Common law is that you cannot impeach on a collateral matter. 2. Under FRE 608(b), you can ask judge to allow you to inquire into specific instances of conduct if it is probative of truthfulness or untruthfulness on cross-examination. i. All you will be able to do is confront – must accept witness‘s answer. ii. Cannot be proved by extrinsic evidence. Q. Exercises 1. Bob is charged with sale of cocaine. In its case in chief, prosecution offers evidence that Bob was convicted of perjury in 1995. i. Defendant‘s character is not in issue 2. Prosecution witness testifies that he met defendant at Baskin Robbins and bought cocaine. Defense offers evidence that witness told police it was at a Burger King. i. Admissible because it is a prior inconsistent statement and is a noncollateral matter because it deals with witness memory. 3. Prosecution witness testifies and in his opinion defendant is not a good person. i. Not admissible because defendant‘s character is not in issue. 4. Prosecution in case in chief offers testimony from Al from previous trial testimony that indicated that X sold cocaine. Al has died. Can we offer evidence that Al was convicted of bank robbery. i. Admissible because it is a felony within 10 years and admissible to impeach hearsay declarant. 5. Criminal defendant can put good character into evidence. No specific instances of conduct on direct. But it can be on cross-examination. Character witness puts credibility in issue and thus can be impeached with prior convictions (FRE 609) or specific instances of conduct that attack or support the witness‘ character for truthfulness (FRE 608). XIV. Privileges A. Rules actually obstruct search for the truth – this is different from all other rules. B. Done because there are over-arching policy considerations that trump search for truth. C. Privileges are disfavored in the law. D. Privileges are applied narrowly. E. Two Kinds of Privileges 1. Confidence Based i. Examples are Attorney-Client and Reporter‘s Privilege ii. Confidence is important to preserve as a matter of public policy.
Evidence - Milich Fall 2003 Page 88 of 93 2. Process i. Example is privilege against self-incrimination. ii. Concerned with making things fair for criminal defendant and forces State to prove that defendant is guilty, not for defendant to prove innocence. F. Confidence-Based Privileges 1. Attorney-Client Privilege i. Oldest privilege ii. First justification for privilege was that attorney had given word that they would not reveal confidences. a. Two problems with this argument 1). Reactive 2). Why would it only apply to counsel? iii. Modern justification for privilege was that attorney needs to know everything about client‘s case and client will not tell them unless it will remain confidential. iv. There are many critics against the attorney-client privilege. v. Privilege is absolute – there is not a necessity exception to the privilege. vi. Protects kinds of information that otherwise would NOT be revealed anyway. vii. What is covered? a. Communications within the attorney-client relationship. b. Begins when client or person is seeking legal advice. c. Looked at from perspective of reasonable expectations of client. d. Does not have to be a paid relationship. e. Agents of Attorney 1). Associates and partners of same firm, paralegals, secretaries – anyone in the network of assistance to legal relationship are covered by privilege. 2). To the extent they are assisting attorney in providing legal services to client, they are covered. 3). Basically, attorney-client relationship exists between client and the law firm. 4). Lawyer cannot confer privilege on non-attorneys. 5). Experts 1. Two Kinds a. Expert Witnesses i. Must identify in discovery, allow them to be deposed, etc. ii. Everything will be disclosable because there is no reasonable basis for
Evidence - Milich Fall 2003 Page 89 of 93 believing that there is an attorney-client relationship. iii. Work product privilege protects things developed in preparation for litigation; thus, anything that indicates attorney‘s ideas and theories of the case discussed with experts are not discoverable. iv. Best advice is don‘t show an expert anything that you would not want shown to the jury. b. Experts who provide guidance on the case and who are not going to be used as witnesses. i. Information shared with this type of expert is covered by the privilege. ii. Since expert is not someone you are going to put on the stand, they are similar to support staff to whom the privilege applies. f. Agents of Client 1). Situation where the client needs the assistance of a third-party (translator, etc.). 1. This situation would be privileged. 2). Situation where there is both the client and agent of the client communicating with attorney, if the client must be there in order to make decisions or otherwise have an understanding of the subject matter of the legal representation, the privilege exists. 3). Situation where agent has the knowledge that is to be communicated but principal does not. 1. If the employee is directed by the client to speak with attorney about a matter with regard to the subject of the attorney-client relationship, the communication is privileged. 2. If the client is present during the agent‘s meeting with the employer, if presence is necessary for the communication, agent, client, and attorney communications are privileged.
Evidence - Milich Fall 2003 Page 90 of 93 4). Four requirements of Upjohn case for when communications between other managers in the corporation and the attorney qualify as privileged. 1. Middle managers must be speaking to attorney at the behest of upper management. 2. For the purpose of seeking legal advice to the corporation. 3. Subject matter of communications must be within scope of manager‘s duties. 4. Information shared in those communications must be kept confidential. 5). Documents 1. Any documents privileged in hands of client are privileged. If unprivileged, they remain unprivileged. 2. At inception, you can determine if document is privileged or not. viii. Time period of coverage? a. Two Issues 1). During what time period are communications covered? 1. All communications between attorney and client. 2. Begins at moment person reasonably expects they will receive legal advice from attorney. 3. Ends at moment there is no longer a reasonable expectation that they are receiving legal advice from an attorney. 2). How long does privilege last after it is created? 1. Lasts until client or estate waives the privilege. 2. Survives the death of the client. ix. Confidentiality requirement a. Whole idea here is to facilitate the communication of information that would not be shared. b. If client does not maintain confidentiality, there is no privilege. c. Anytime confidentiality is blown, privilege is lost. d. Destroys attorney-client privilege. e. Unauthorized disclosure by attorney does not destroy privilege. f. If third-party needs to be present in order to facilitate the legal representation, it does not blow the privilege.
Evidence - Milich Fall 2003 Page 91 of 93 g. Third-parties who just sit in on attorney-client communications would constitute a total disregard for confidentiality and result in loss of privilege. h. Representation of Partnership 1). Conversations are privileged as against the rest of the world. 2). But, if partnership breaks up, the partnership attorney can be forced to divulge information because there is NO expectation that another partner can communicate in confidence with attorney. i. Joint Clients 1). Most jurisdictions hold that there is no expectation of confidentiality as between joint clients. Confidentiality DOES exist as between the joint clients and the rest of the world. j. Does stealing information constitute loss of the privilege? 1). Modern courts hold that it is incumbent upon attorney and client to take reasonable means to safeguard the communications and if reasonable means are taken, the privilege continues in the event disclosure is made. k. Mistakes made by attorney or staff in divulging attorneyclient communication. 1). Case law is in two directions. 1. Georgia and some jurisdictions maintain privilege even during negligent disclosure by attorney if there is no client involvement in disclosure. 2. Other jurisdictions indicate that privilege is waived but only as to the information actually disclosed – does not act as a subject-matter waiver. l. Usually, name and address of clients is privileged, unless the circumstances show a particular need that identity and whereabouts remain confidential. m. Non-verbal communications are also privileged. 1). Bloody Knife Hypo 1. Cannot hide evidence. Can only turn over to the police. However, client‘s identity would be privileged information. n. There is no witness-attorney privilege and the fact that client told attorney to talk to witness is irrelevant. o. When you are a lawyer, you always want to have another person with you when you interview witnesses. x. Who may assert the privilege?
Evidence - Milich Fall 2003 Page 92 of 93 a. Only the client can assert the attorney-client privilege. b. Attorney can invoke privilege on behalf of client pending determination if client wants to invoke privilege. xi. Waiver of Privilege a. Waiver can be partial or full. b. Waiver can be implied by conduct of the client. 1). When a client puts attorney‘s advice in issue, waiver of the privilege is implied. 2). If client sues for malpractice, waiver of the privilege is implied to extent necessary for attorney to defend themselves. c. Waiver occurs when client is called upon to reveal attorney-client privileged information and decides to do so. d. When there is a waiver, client cannot simply waive as to specific communications but waives all privilege with regard to the subject matter of the revealed communication. 1). Partial waiver is allowed but cannot be any less than all of the subject matter of the revealed communication. xii. Exceptions to Privilege a. Few exceptions to the attorney-client privilege 1). Privilege does not exist in a dispute as to attorney‘s fees between attorney and client. 2). Offensive actions against attorney by client allow attorney to reveal attorney-client communications to the extent necessary to defend themselves. 3). Third-party action against attorney allows attorney to reveal attorney-client communications to the extent that is necessary to defend themselves. 4). Crime-Fraud Exception 1. If client is using attorney or attorney-client relationship to assist in future or on-going crimes, the privilege does not exist. a. Key is what client does with legal advice. If client uses advice to avoid illegal behavior, the privilege still exists. If client uses advice to do something illegal, the privilege does NOT exist. 2. Even innocent conduct by attorney results in loss of privilege. Even if attorney is but a dupe in client‘s plan, there is no privilege. 2. Two Earmarks under Modern Privilege Doctrine i. Communication in question the kind that must be shared in order for the client to enjoy the fruits of the relationship.
Evidence - Milich Fall 2003 Page 93 of 93 ii. Were it not for the privilege, it is likely that the professional would never hear these communications. 3. Federal Rules of Evidence do not include rules regarding privileges. i. Basically, federal rules defer to state rules regarding privileges. 4. Basic Rules Regarding Confidence Privileges i. Privilege only restricts divulging communications, does not restrict access to content (facts) by other means. a. Essentially, access of the content cannot be by way of communication. b. Form, not content, is off limits. ii. Privilege can only be asserted by holder or beneficiary of privilege. a. In the case of clergy privilege, both clergyman and client are holders of privilege. iii. Privileges are waived if they are not asserted. Privileges must be asserted or they are waived. a. Lawyers may assert privilege on client‘s behalf, pending client‘s decision as to whether they are asserting the privilege or not.