1 8-26-02 Website is in westlaw, TWEN Password is hearsay Exam: 1/3 objective (closed book, memorize the rules) and 2/3 essay/issue spotter (choice of theory/policy or practical). Open book but no commercial outlines. 3hr exam Always check the supplement to see if a rule has been amended Hornbooks by Liley or Park Thursday seating chart I. What is Evidence? A. Rules of Evidence 1. Tell you what can be used in court and why a. There was common law before this statute was enacted 2. Rule 101: These rules apply in Federal Courts, Bankruptcy Courts, U.S. Magistrates, criminal and civil proceedings except for the exceptions stated in 1101 a. Most state rules are the same as the Federal Rules b. California rules are the major alternate state code 3. Who decides the facts of a case? Jury (or judge in bench trial) 4. Why have rules of evidence? a. Why keep something out of a case? i. When the jury might be biased/confused/emotional ii. Other social purposes -Illegal access of evidence -Privileges *Ex: Attorney/client allows attorney to defend client best -Abuse of adversary iii. Time/limit scope b. Rule 102: The purpose of a trial is to find truth B. Types of evidence 1. Real evidence: usually is admitted, usually is relevant a. Ex: Broomstick b. Ex: Photos of a victim i. Even really graphic photos are usually allowed in 2. Demonstrative evidence: helps the jury understand testimony, not from scene of crime a. Ex: Chart of the police station b. Ex: Video re-enactments 3. Testimonial evidence: what witnesses say a. Ex: Testimony of a co-defendant 4. Expert testimony: a. Ex: A doctor’s testimony 5. Hearsay: a. Ex: An inmate said another inmate told him ____ 6. Character witness: the general rule is that this can’t be used, even if it seems like it’s relevant a. Ex: Witness’s wife’s testimony b. Ex: Other victims from the past 7. Privileged information: a. Ex: Putting the attorney on the stand to ask about a client’s innocence/guilt 8-28-02 II. Relevance A. Rule 402 1. Definition of relevance a. Evidence with any tendency to prove a fact that is of consequence to the determination of an action i. “A brick is not a wall.” Evidence doesn’t have to prove the fact in question, it can be a small piece of support. It does not have to be sufficient to be relevant ii. Ex: Defendant on trial for murder. Evidence is that defendant put a hex on the victim, 2 is this relevant? It is evidence of motive so it’s relevant. Is it relevant to proving if the victim died of natural causes? No. Judge doesn’t have to let in things like dreams, superstition etc. b. Evidence with any tendency to prove a fact that is of consequence to the determination of an action i. Determined by looking at both substantive and procedural law. Ask is the fact material? Is the fact prove-able in the case? 2. A logical, common sense concept 3. A relational concept a. Unless you know what fact you’re trying to prove, you can’t decide relevance 4. Probative value v. prejudice B. 4 questions to ask for relevance 1. What’s the evidence? 2. What’s the fact? 3. Does it tend to make the fact more or less probable? 4. Is the fact of consequence/material? C. Determining relevancy 1.Knapp v. State [p71] a. Facts: Appellant was convicted for first degree murder for killing a marshal. On appeal, he raised self-defense, claiming he feared the marshal because someone in Hagerstown told him the marshal beat an old man to death. The state presented testimony from a physician to show that the old man in question died of senility/alcoholism rather than from being beaten. b. Evidence: That the old man died of alcoholism/senility, not being beaten c. Question Presented: Is this testimony relevant? d. Holding: Yes e. Court’s Reasoning: The appellant argues this testimony is irrelevant because the question is not whether the old man was beaten to death but whether appellant reasonably believed he was. The court holds that this evidence is relevant because it does negate the claim of the appellant as to what he heard. People tend to speak the truth. Since the appellant can’t remember who told him the story, the fact that the store is untrue because it shows there was someone being untruthful between the fact and the testimony. This sheds doubt on the appellant’s truthfulness or at least this particular claim. If the story is not true, it’s less likely someone told the defendant this story. The court sees this as a fairness issue. 2. [p69] Love letter problem a. Is the love letter relative? i. Depends on whether you can draw enough inferences to make it relevant ii. Each step has only small probative value, you’re only as strong as your weakest link 3. Sherrod v. Berry [p72] a. Facts: Lucien Sherrod was a robbery suspect shot by police. He was stopped in his car with another individual. During the arrest, the police asked him to raise his hand, and according to the police he made a quick motion in his coat as through reaching for a weapon. Evidence shows Sherrod was not actually carrying a weapon. b. Evidence: Sherrod had no gun c. Question Presented: Was it relevant whether or not Sherrod actually had a weapon? d. Holding: No e. Court’s Reasoning: All that matters is whether it was reasonable for Berry to believe Sherrod had a weapon under the circumstances 4. Reconciling Knapp and Sherrod a. The Knapp argument in Sherrod-if Sherrod didn’t have a gun, he probably didn’t make a movement that looked like he had a gun b. The issue in Sherrod was more one of prejudice rather than relevancy (Rule 403) 5. Rule 403 a. What’s the standard of review? Abuse of discretion 6. King Solomon a. Issue: Who is the biological mother of the child? or Who is the better parent? b. Evidence: The reaction to splitting the child c. Relevance: Biological mother will want to protect the child or Better parent will want to protect the child i. Arguments against this… -The second woman is crazy -Was this fair of King Solomon? 3 ii. This gets an emotional reaction, which we tend to think is more reliable (excited utterance) iii. It goes to who would be the better parent, not to who the biological parent is 7. Union Paint and Varnish Co. v. Dean a. Facts: Someone bought 2 drums of paint. The first did a poor job and leaked. Then he bought a second and wanted to return it, unused. As a result he refused to pay for the 2nd drum and wants to tender it back b. Evidence: First can of paint rotted through c. Question Presented: Is this relevant to proving the second drum of paint is defective? d. Reasoning: It may show a trend in defective paint from this company. Depends on whether there is other evidence that the second drum is from the same lot, has the same problem etc. Defendant wins because this evidence is relevant to whether it’s reasonable for the defendant to not want the second drum because he’s lost confidence in the product. People don’t have to pay for something if it’s reasonable for them to not want to use it B. Rule 403: Exceptions to relevant evidence 1. Undue Prejudice: Old Chief v. U.S. a. Facts: Petitioner Old Chief was arrested after a fight in which a gun was shot. He was prosecuted for assault with a dangerous weapon and also violation of 18 USC § 922(g)(1) which makes it a crime of someone with a prior conviction of up to 1 year to possess a firearm. Old Chief had previously been convicted of assault. He said that revealing the name and nature of the prior conviction would be prejudicial and agreed to concede that he had been convicted of a crime which fit the requirements of 18 USC § 922(g)(1). The government objected and the previous order or judgment was entered as evidence. b. Evidence: His prior conviction was for assault. He’s worried about a propensity inference c. Question Presented: Does a district court abuse its discretion by allowing into evidence the full record of a prior judgment when the name/character of the prior offense might be prejudicial and the only reason for entering this evidence is to prove the element of the prior condition? d. Holding: Yes e. Court’s Reasoning: This is relevant but should not be admitted. It’s relevant because it shows he is a felon and therefore violates the statute. First Old Chief argues that the evidence is irrelevant to the prior conviction element and thus inadmissible under Rule 402. Rule 401 defined relevant as “any tendency to make the existence of material fact more or less probable.” While showing the prior conviction was for assault, not something else was not an ultimate fact, but it does tend to show that Old Chief was not supposed to be carrying a firearm. The fact to which evidence is directed need not be in dispute but it was unfairly prejudicial and thus should have been excluded. Rule 403 describes the scope of the judge’s discretion to exclude evidence when the probative value is outweighed by its tendency to be prejudicial. Although propensity evidence is relevant, there is a huge risk it was slant the jury. Rule 404(b) reflects this and says propensity isn’t an appropriate basis for conviction. i. Court uses advisory committee notes in interpreting the rules, especially when the rules were accepted as suggested by the Supreme Court f. Reason for Decision: District judge abused his discretion. How should a judge determine whether evidence weights too heavily in favor or prejudice? Either examine the evidence in a vacuum or compare it to other evidence which could be used to prove the same point. Rule 403 advocates that a less risky alternative be taken so the second method should be used. The committee notes support the second view (marginal probative value.) Here there was an alternative which was less prejudicial, Old Chief admitting/stipulating he had been convicted prior—and it would have been conclusive. The government argues that the defendant shouldn’t be allowed to admit himself out of their entire case. It’s true that the defense needs evidentiary linearity/clarity to persuade the jury. Here, however, the evidence is a tangent rather than part of the crime on trial. Decision only applies to this specific kind case. If the rule was generalized, everyone would try to use the most prejudicial evidence first, then slot down. i. Why is this case different? -This evidence doesn’t have unforeseen relevance related to other issues on trial. It’s not a choice between a graphic photo and a piece of paper, it’s two pieces of paper 2. Prejudice must substantially outweigh the probative value 3. Unfair prejudice is such that causes an emotional decision or another inappropriate decision 4. Why is fairly prejudicial evidence allowed? a. To allow the prosecution to present a fluid story b. Evidence presents a part of the story that can’t be replicated 4 c. Juries want to see everything so they can make a position they’re morally supportive of 5. Jury nullification a. When the jury believes the law supports a conviction but acquits none-the-less i. Allowing prejudicial evidence helps the prosecutor prevent nullification 6. Do you like this rule? a. Does it ask too much of the judge to weigh/credit the evidence? 7. In a civil case it’s much easier to stipulate and get the evidence away from the jury because things can be admitted in answers. In criminal cases, the defendant can’t admit to part of the crime. There are no partial pleas, the prosecution has the burden to prove the entire crime Why is this holding limited? What is different about the felony-in-possession? 9-3-02 I. Character A. Character as direct evidence (“in issue”) 1. Cleghorn B. Character as circumstantial evidence 1. General Rule 2. Exceptions C. Permissible methods of proof 1. Opinion 2. Reputation 3. Specific acts D. Limiting its structure I. Character A. Why propensity evidence is not allowed 1. Ex: Old Chief a. Evidence: The prior conviction was for assault b. Unfair prejudice: If he committed assault before, he’s more likely to commit it again i. Why is this unfair? -Jury might overweigh propensity evidence -Jury might convict based on character rather than guilt in this specific instance -Jury might diminish the burden of proof for the prosecution -Jury might not weight evidence correctly *Defendant has a past so the police picked him up. He says he’s the wrong guy. Allowing past convictions in encourages circular reasoning -Jury might be distracted and their time will be wasted B. Rule 404(a) amended in supplement 1. Character evidence is not allowed to show an individual acted in character for a specific instance a. Exceptions i. Attacking the credibility of witnesses ii. Character of accused only in criminal cases, defendant decides to admit this -Character trait must be pertinent -Prosecution can only admit in rebuttal -If the accused offers evidence as to character of victim, prosecution can offer evidence of the same train of the accused iii. Character of victim only in criminal cases, defendant decides to admit this 2. Cleghorn v. NY Central and H. River Ry. Co. [p375] a. Facts: The switchman was careless and forgot to close the switch after a train passed and he gave the signal to the next train that the track was clear. The defendant insists it was inappropriate to enter in evidence of the switchman’s previous drinking habits. b. Character evidence: The switchman was an alcoholic c. Fact at proof: Employer should pay punitive damages for allowing a known drunk to operate a dangerous job. It’s wrongful to hire a drunk. d. Question Presented: Can prior character evidence be brought into a case about a specific instance of negligence? e. Holding: Yes f. Reasoning: The plaintiff here wants to prove not only that the switchman was careless, but that the railroad knew he had been drunk on the job prior. The plaintiff isn’t trying to prove that the switchman was drunk at the time of this accident (which is what was being proven in Warner), just 5 that the employer was negligent in allowing such an unstable employee to have this potentially dangerous job. 3. Hypo: Defendant is sued for libel for saying “Mr. X is a drunk.” Is the evidence showing Mr. X is a drunk admissible? Yes. Because in a libel case you must show damage to reputation and character evidence shows reputation. It’s also the defense of truth, if Mr. X is really a drunk then it’s not libel. C. Rule 405: Methods of proof when character is an issue 1. Reputation a. Ex: I’ve heard in the community that Mr. X is a drunk 2. Opinion a. Ex: I think Mr. X is a drunk 3. Specific act only applies when character is an issue a. Ex: Prior conviction for a crime D. Character as circumstantial evidence 1. Rule 404(a) is used to prove propensity 2. Exceptions a. Character offered up by the accused i. Only reputation and opinion ii. Other side can ask about specific acts but are bound by witness b. Rule 105: When evidence is admissible for one purpose and not for another, the defendant can ask the judge to give the jury a limiting instruction telling the jury only to consider the evidence for one purpose i. Everyone doubts whether jury is actually capable of doing this ii. Defendant would rather use 403 when it’s clear the limiting instructions won’t work 3. Michelson v. U.S. (character as circumstantial evidence) a. Facts: Issue of entrapment where petitioner was accused of bribing and official but petitioner claimed there was entrapment. Case boiled down to whether to believe petitioner Michelson or the government agent. Defendant’s own counsel brought into court the fact that he had been convicted of a misdemeanor and then lied about this in court. Defendant brought character witnessed who testified to his good standing in the community, but did not know of his prior conviction. At trial on cross-examination of his character witnesses, the prosecutor asked the witnesses if they had ever heard that defendant was previously arrested for receiving stolen goods (specific acts). Defendant claimed that this question constituted reversible error. The appellate court affirmed and held that the question was permissible but pointed out that the practice had been severely criticized. Upon writ of certiorari, the court affirmed the appellate court decision and thereby rejected the appellate court's invitation to adopt the Illinois rule providing that such questions were improper unless they related to offenses similar to those for which the defendant was on trial. The court held that the cross-examination question was proper because reports of defendant's arrest for receiving stolen goods, if admitted, would tend to weaken defendant's assertion that he was known as an honest and law-abiding citizen. i. Why is prosecution allowed to ask about specific acts when character is being used circumstantially? The defendant opened the door. The prosecution can’t start with character evidence but they can rebut and cross-examine ii. What if the character witness hasn’t heard of any of the arrests? The prosecution can’t do anything, they’re bound by the answer of the witness. All the character witness can testify to is character/reputation—not the reality of what happened iii. Can the prosecution make stuff up? No. There’s no logical reason for this, but it’s the rule iv. What if this is allowed under 404(a) but the prior acts are extremely prejudicial? Look to 403 (you always look to this after determining relevancy) v. Prosecution can put on own character witnesses b. Question Presented: Was it proper to ask a character witness whether they had specifically heard about an unrelated crime by the plaintiff? c. Holding: Yes d. Reasoning: When the defendant elects to initiate a character inquiry, not only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed to base his testimony on anything but hearsay. What commonly is called "character evidence" is only such when "character" is employed as a synonym for "reputation." The witness may not testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance, observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good 6 general or specific character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. In regards to character evidence, the form of inquiry, "have you heard?" has general approval, and "do you know?" is not allowed. E. Rule 404(b): Introducing specifics of prior acts 1. What is most reliable? Specific acts, opinion, reputation (in that order) a. Why are we not allowed to enter in specific act evidence then? It’s more prejudicial and it has a high tendency to distract 2. Is this evidence not relevant or too relevant? a. Think about this as we get to the prior acts stuff for Thursday and victim character exceptions 3. Where character is in issue, character issue is allowed. a. Methods of proof under rule 40(5) i. Reputation ii. Opinion iii. Specific acts 4. Where character is not an issue but is used circumstantially to show action in conformity a. Not allowed under rule 404, except… i. To show the character of the accused offered by the accused (see amendment in supplement) -Reputation and opinion only -In rebuttal, prosecution can use character evidence to inquire in good faith about specific acts but are bound by witness’ answer ii. To show the character of the victim, offered by the accused -Reputation and opinion only -In rebuttal, prosecution can use character evidence to inquire in good faith about specific acts but are bound by witness’ answer 5. Hypo: Trial over child custody. Evidence is character of the parents. Is character at issue in this case? Yes. Rule 405 applies. Would you admit… a. Character of father? Yes b. Teacher’s opinion of the mother? Yes c. Evidence the mother once went out drinking and left the child behind? Yes 6. Hypo [p377]: Widow in wrongful death action. Is character at issue? The issue is the damages for a wrongful death action. Most courts would say character is at issue for damages, it’s like a defamation case a. Can you make an argument under rule 403 that the evidence shouldn’t be allowed? Argue the prejudice outweighs the probative value because the marital problems happened so long ago 7. Character at issue in a criminal case a. Rarely an issue, we don’t punish people for their character in the U.S. legal system b. Ex: Chastity of the victim in the crime of seduction, insanity defenses, entrapment (when the 7 issue is the prosecution proving the person was inclined to do the crime) 8. What does 404(b) add to 404(a)? Adds a list of when character evidence of specific acts can be used. Requires you to give notice. Not an exclusive list, just examples. I. Permissive Uses of Character Evidence A. McCormick 1. Prosecution may not use character evidence to prove that because the defendant has been a criminal in the past, he is more likely to be a criminal now. 2. Prosecution may use character evidence… (read footnotes carefully) a. To complete the story of the crime by explaining contemporaneous happenings/the scenario b. To show a larger scheme/conspiracy c. To show the present crime is so identical that it is consistent with the defendant’s handiwork (for some types of crime like murders or rapes which are repetitive) d. To show a propensity for unusual and abnormal sexual relations e. To show the crime at hand was no mere accident f. To establish a motive, either specific or general g. To show defendant had the opportunity, either to be at the scene or to perform a skill inherent in the crime h. To show defendant’s intent i. To prove identity (in conjunction with one of the above theories) 3. Connection between character evidence and permissible purpose should be clear. Issue being proven must be in dispute 4. Still must weigh against unfair prejudice 5. Can prosecution introduce evidence of prior crimes when defendant was acquitted? a. It’s likely to be very prejudicial but… b. 1990 Supreme Court decided the evidence can still be used to show anything other than propensity B. To prove the 2 crimes were so similar as to be the defendant’s handiwork 1. U.S. v. Carrillo [p397] a. Facts: Undercover narcotics bust. Detective Alonzo was approached by someone who directed him towards “Tito.” Alonzo approached “Tito”/Carrillo and asked for drugs to which the person responded by giving Alonzo drugs in a balloon. Alonzo walked away and later learned that the seller was Carillo. Alonzo identified Carillo from a police picture and Carillo was arrested. Carillo claimed he was a few blocks away at the time of the sale. Prosecution brought 2 police offiers to the stand who testified they had arrested Carillo for selling drugs in balloons. Jury found Carillo guilty. b. Evidence: Carillo’s 2 prior arrests for selling heroin, also in balloons. Prosecution wants to use the evidence to prove identity through handiwork/earmark/signature/mo b. Question Presented: Is it appropriate to allow the prosecution to use this evidence to prove identity under rule 404(b) and the 2 part test of U.S. v. Beechum? c. Holding: No d. Reasoning: The 2 part test of U.S. v. Beechum requires the evidence (1) be relevant to something other than the defendant’s character and (2) have less undue prejudice than probative value. When used to prove identity, prior crimes must be very, very similar—to the point of being the accused’s handiwork. Here the method of selling drugs wasn’t that unique, many dealers use balloons. To show identity through handiwork evidence, it has to be distinctive. This was common. 2. Hypo [p397, Problem #1]: Evidence of prior act would be used to show knowledge of what marijuana looks like. What about rule 403 prejudice? The remoteness of time might make this prejudicial, but marijuana hasn’t really changed in 15 years 3. Hypo [p397, Problem #2]: Argument for admissibility is motive, drug addicts need money 4. Hypo [p397, Problem #3]: Argument for admissibility is motive/intent, defendant hated the victim 5. Hypo [p397, Problem #4]: Argument for admissibility is to complete the story of the crime/show guilty knowledge 6. Hypo [p397, Problem #5]: Argument for admissibility it to show opportunity/complete story of the crime/guilty knowledge 7. Hypo [p397, Problem #6]: Three robberies in past 6 months don’t show identity here unless there’s a handiwork argument (which there isn’t here.) This is the forbidden propensity inference, and is not allowed C. James and Dickinson, Accident Proneness and Accident Law 1. If accident proneness is character, why can’t you use it to show negligence? It violates rule 404 a. Why doesn’t it fall under any of the exceptions? Under 404(a)(1) and (2) the exceptions only apply to criminal cases 8 i. Should it be allowed in a civil case? These authors feel it should. Scientific studies show accident proneness is extremely probative of negligence on specific occasions. Should we change the rule when we think evidence is unusually probative in specific types of cases. Do judges do this? D. To show motive 1. U.S. v. Cunningham [p409] a. Facts: Cunningham was a nurse. Demerol was being stole from a cabinet only 5 nurses had a key to. She had been a Demerol addict in the past but was recovered. She took a blood test, voluntarily and a urine test. The urine test came up positive and the blood test didn’t, consistent with recent use. b. Evidence: 4 years earlier, Cunningham pled guilty to stealing Demerol from the hospital where she worked. She also falsified mandatory drug tests. Judge didn’t allow the conviction in but did allow in the fact that her license had been suspended for theft, faking drug tests, and her Demerol addiction i. What if prior case had been selling the drugs she stole? Would this have been admissible? This could be evidence of motive b. Question Presented: Should prior bad acts have bee admitted under rule 404(b)? c. Holding: Yes d. Reasoning: Propensity and motive are not the same thing. Most people don’t want Demerol, being an addict in the past gives Cunningham a motive to want it. None of the other nurses with the key had this motive. The evidence of drug use as admissible unless the judge deemed it unfairly prejudicial i. Here, propensity and motive totally overlap. The addiction is the motive. This is unique to certain cases like addiction, arson, sex crimes etc. dicta -Is addiction a character trait? Is this a different type of character trait which should be let in? Is it so probative (like accident proneness) that it should be allowed in? Is it more like habit? Is it a disease? E. To prove a modus operandi 1. U.S. v. Beasley [p401] a. Facts: Meese Inc. hired Beasley as a consultant. Beasley was somewhat famous and worth a lot to Meese so they got a $1 million life insurance policy on him. Rucker was a physician who performed the physical for the insurance. Beasley convinced Rucker to write prescriptions for loads of narcotics to use in experiments on plants. Beasley says that’s what he did with the drugs, prosecution claims he sold them on the black market. Most of the evidence against Beasley came from Brooks, a convicted drug dealer, and the prosecution worried Beasley’s academic credentials would look bad next to Brook’s criminal past. Brooks claimed Beasley sold him the drugs to use and sell. Terrell, one of Beasley’s assistants testified that he didn’t see the plants getting drugs but he had seen Beasley try to get drugs to sell before. b. Evidence” Beasley’s past “shopping for doctors,” giving people drugs, his daughter’s drug problem, and using others as prostitutes. Prosecution claimed it was being used to show a pattern i. Extrinsic acts don’t have to be prior acts, they can happen after the crime in question b. Question Presented: Is it appropriate to allow the prosecution to use this evidence to prove a pattern of behavior under rule 404(b) c. Holding: No d. Reasoning: The judge didn’t specify to the jury that this info was being brought in to show a pattern. Nor is “pattern” listed in rule 404(b). These acts weren’t similar enough to show a modus operandi. Giving drugs to his co-workers is far different from selling a different drug to strangers. A pattern is exactly what character evidence cannot be used to show (propensity). It could have been let in to show intent, but instead it was allowed in under pattern which is the forbidden inference. More importantly, trial judge didn’t balance the prejudice v. probative value. Although evidence of “shopping for doctors” shows intent it is too prejudicial. i. How would you get the evidence in on intent? Showing the doctor shopping tends to show he was looking for mass quantities of drugs to sell, not for controlled experiments F. Quantum of proof required for prior act 1. Tucker v. State [p412] a. Facts: In 1957 Tucker called the police because there was a man, shot-dead, in his living room. Tucker had been drinking and claimed not to have shot the man, he had been sleeping and found the dead man when he awakened. No one was convicted of the crime. In 1963, Tucker again awoke drunk, found a person shot dead in his house, and called the police. This time Tucker was convicted of 2nd degree murder. b. Evidence: The 1957 homicide 9 c. Question Presented: Should the evidence have been admitted? d. Holding: No e. Reasoning: Evidence of a prior crime cannot be admitted when the defendant wasn’t convicted of the prior crime. The prior act must be proved through clear and convincing evidence and here it was just suspicion and innuendo i. Compare to a case of SIDS where three babies die in the care of one family. With each death does it seem fishier? 2. Hypo 5 [p427] a. Is this habit evidence? How do you differentiate habit and character? They’re a continuum i. Habit is more limited and applies to specific circumstances ii. Character is thought of as being moral iii. Character seems more prejudicial b. This is definitely more habit than character c. Is habit more probative than character? i. The court says habit is more probative G. To show intent 1. Huddleston v. U.S. [p413] a. Facts: Petitioner, Guy Rufus Huddleston, was charged with one count of selling stolen goods in interstate commerce, 18 U.S.C. §2315, and one count of possessing stolen property in interstate commerce, 18 U.S.C. §659 related to stolen Memorex video cassette tapes. The evidence at trial showed that a trailer containing over 32,000 blank Memorex video cassette tapes was stolen from the Overnight Express yard in South Holland, Illinois, sometime between April 11 and 15, 1985. On April 17, 1985, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex video cassette tapes. After assuring Curry that the tapes were not stolen, he arranged for the sale of a total of 5,000 tapes, which petitioner delivered to the various purchasers--who apparently believed the sales were legitimate. There was no dispute that the tapes which petitioner sold were stolen; the only material issue at trial was whether petitioner knew they were stolen. b. Evidence: The first piece of similar act evidence offered by the Government was the testimony of Paul Toney, a record store owner. He testified that in February 1985, petitioner offered to sell new 12" black and white televisions for $28 a piece. According to Toney, petitioner indicated that he could obtain several thousand of these televisions. The second piece of similar act evidence was the testimony of Robert Nelson, an undercover FBI agent posing as a buyer for an appliance store. Nelson testified that in May 1985, petitioner offered to sell him a large quantity of Amana appliances--28 refrigerators, 2 ranges, and 40 icemakers. c. Question Presented: Should evidence of similar acts be permitted? d. Holding: We granted certiorari to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before "similar act" and other Rule 404(b) evidence is submitted to the jury. We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. e. Reasoning: Defendant argued evidence had to be proved by a preponderance to the judge. The court disagreed. The Supreme Court held that it needed to be shown by 104(b) so that a reasonable jury could find it by a preponderance of an evidence. Federal Rule of Evidence 404(b)--which applies in both civil and criminal cases—generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct. The actor in the instant case was a criminal defendant, and the act in question was "similar" to the one with which he was charged. i. Note the difference between the judge determining whether something is true and whether the judge is determining whether a jury could find something true. This is a lower standard, making it easier to get prior acts introduced. This prevents the jury from hearing potentially prejudiced evidence -What safeguards are there for the defendant, beyond having the judge screen evidence for the jury? *404(b) proper purpose for the evidence *Relevancy *105 the judge can give a limiting instruction *403 prejudice H. Habit v. character 10 1. Perrin v. Anderson [p419] a. Facts: Plaintiff, administratrix of Perrin's estate and guardian of his son, alleged that defendants, Donnie Anderson and Roland Von Schriltz, members of the Oklahoma Highway Patrol, deprived Perrin of his civil rights when they shot and killed him while attempting to obtain information concerning a traffic accident. The incident began when Perrin drove his car into the back of another car on an Oklahoma highway. After determining that the occupants of the car he had hit were uninjured, Perrin walked to his home, which was close to the highway. Police officers went to his house and a scuffle ensued during which Perrin was shot. i. Civil case, so does 404(a) apply? No. 404(a)(1) and (2) only apply to criminal cases b. Evidence: Testimony concerning the decedent's previous violent encounters with police, a shooting review board report, a statement that the patrolmen would be personally liable, and evidence of pornography in the decedent's home. c. Question Presented: Should this evidence be admissible? d. Holding: Yes e. Reasoning: The previous violent encounters with police were not admissible as evidence of character but were admissible as evidence of habit. The limitations on the methods of proving character did not apply to habits. The board report was properly admitted as a record of a public agency. The statement concerning personal liability was proper because the jury needed to know the impact an award would have on the patrolmen to properly assess punitive damages. The great quantity of pornography in the decedent's home, which was readily accessible to his six-year old son, was admissible because it was relevant to the damages sought on behalf of the son. The court did not concluded that accessibility of the pornography diminished the value of the decedent's relationship to his son but only that it was relevant to the nature of the influence the decedent was having on his son. Here the evidence introduced was of specific acts under 404(a)(1) which is the wrong method of introducing this evidence under 405. They should have been limited to opinion and reputation. i. Here judge applies 404(a)(1) and (2) to a civil case because this is really analogous to a criminal case with a self-defense response minority rule ii. Would opinion/reputation have been as probative? No iii. How does the court get the evidence in? a. They apply it to civil cases b. They argue it goes to habit i. Normally 5 incidents wouldn’t be enough, but here there were other instances which the trial judge kept out. So it really was a habit. ii. Is this like accident proneness? Is this habit? Is it character? I. Hypos [p426] 1. Trial over a fight between 2 inmates. A friend of the accused wants to testify that the accused is non violent. Is this allowed? This is character evidence but this is an exception under 404(a)(2) if the character trait is pertinent. Here it was because the violence is a pertinent character trait so it is admissible. a. Con prosecutor ask “have you heard about x incident?” Yes b. If witness says no, can prosecutor bring another witness up to testify as to the event? No. Prosecutor is bound by CX c. Can prosecutor provide evidence of inmate’s violence in their case? No, that’s what the rule disallows. That would be character evidence by the prosecutor in their case d. What if prosecutor wants to bring up the evidence of prior fights in rebuttal? No. Only evidence of reputation and opinion evidence in rebuttal e. Can prosecutor call a witness in rebuttal to testify on accused’s reputation? Yes, once accused has already called character witnesses 2. X is charged will killing police officer A. B was in car when A stopped X and X shot A. Prosecution wants to introduce evidence that (a) X was on parole for a felony in Illinois (b) 7 days before incident X committed armed robbery (c) the car was stolen. Do these pieces of evidence get allowed in? Yes, these go to motive or intent a. Goes to “guilty knowledge” types of behaviors which are often admitted to show intent i. Flight ii. Resisting arrest iii. Aliases/disguise iv. Lying v. Hiding evidence/destroying evidence vi. Attempting suicide b. This is permissible so long as it is relevant II. Extrinsic Social Policies 11 A. Reasons to keep information out of trial 1. Intrinsic: Is it relevant? Will this help us find truth in the trial? 2. Extrinsic: Social policies. Is this the right thing to allow in for social purposes? a. Query: Are average people really aware of these rules? Does it shape their behavior? B. Rule 407: Subsequent remedial measures 1. Social policy: Don’t want to discourage people from improving safety of products/places a. Can’t be used to show item was defective before 2. Tuer v. McDonald, 701 A.2d 1101 a. Facts: Mr. Tuer had had a heart attack. He went into the hospital and was treated with Heparin. This was discontinued right before surgery as per hospital policy. An emergency arose and his surgeons were called away before the surgery. When they returned several hours later, Mr. Tuer had been adversely affected by the lack of Heparin. He subsequently died and the hospital changed the protocol so the Heparin was stopped only just prior to operation rather than a few hours before. That would have saved his life. b. Evidence: The new protocol c. Question Presented: Was it an error to exclude evidence of the new protocol? d. Holding: No e. Reasoning: The court held that the trial court did not err in excluding that evidence. Under Md. R. Evid. 5-407, evidence of subsequent remedial measures was not admissible to show either what the applicable standard of care was at the time of the occurrence or a deviation from that standard of care. The evidence was not admissible under the feasibility exception to the exclusionary rule because the physician did not testify that administering the drug would have been unsafe but that that it would not have been advisable. The evidence also was not admissible under the exception to the exclusionary rule to impeach a physician's statement that administering the drug would have been unsafe because it was clear that the physicians made a judgment call. The change in the protocol did not suggest that the physicians believed that their judgment call was not appropriate at the time. 3. Requirements… a. Can’t use evidence that happened after the “event.” What is the event? The accident b. Can’t be used to prove negligence, culpable defect, or design defect i. Federal rule ii. Even in strict liability the rule still applies c. Other uses are permitted i. Not an exhaustive list… C. Rule 408: Compromises 1. Social policy: provide incentives to settle and decrease litigation 2. What does this apply to? a. Unwary plaintiff’s comments about the case in the course of plea negotiations. They’re not admissible b. Doesn’t require the exclusion of otherwise discoverable evidence i. Saying something during a compromise doesn’t make something inadmissible that was otherwise known. Bringing things into settlement doesn’t immunize them -Ex: A report prepared just for settlement isn’t admissible 3. Davidson v. Prince, 813 P.2d 1225 a. Facts: Appellant was injured when a cow or steer charged him. The animal had escaped from a truck that had been negligently overturned by appellee employee. There was conflicting evidence whether appellant was partly responsible for his injuries. The jury concluded appellant was 40 percent contributorily negligent; denial of appellant's motion for a new trial was affirmed. b. Evidence: Whether or not appellant was partially responsible for his injuries according to the appellee’s opinion c. Question Presented: Was it proper to allow the evidence in? d. Holding: No e. Reasoning: First, while the court agreed that it had been erroneous to instruct the jury on the tax consequences of a personal injury award, under the facts of this case such error was harmless. Second, it was proper to not permit appellant's expert to testify as to his opinion whether appellee was negligent, as a determination of negligence is a legal conclusion, not an ultimate issue of fact. Finally, a letter written by appellant supporting the contributory negligence claim was properly admitted, as contrary to appellant's argument the letter was not a settlement offer. i. Is this evidence part of a settlement negotiation? The court says no. This letter was more like a threat than an offer of settlement ii. It also goes to impeach the witness. The distance from the cow in the letter is different 12 than in his deposition. The judge would instruct the jury only to evaluate the evidence to determine witness credibility D. Rule 409: Payment of medical expenses 1. Social policy: you don’t want to punish good Samaritans 2. Intrinsic: people pay bills even when they’re not at fault, so it’s not relevant 3. Doesn’t contain all of the language of statements etc. only applies to the fact that someone paid the bills, not what they said about paying the bills E. Rule 410: Pleas and related statements 1. Social policy: want to encourage pleas so you decrease litigation a. Nolo contendere: pleading guilty without admitting liability b. Withdrawn guilty pleas. Non-withdrawn pleas are admissible 2. Ando v. Woodberry, 8 N.Y.2d 165 a. Facts: Robert Ando, a police officer, driving a motorcycle, and Edward Nichols, driving an automobile collided when Mr. Nichols attempted to make a left turn at 110th Street, and Officer Ando was injured as a result of the collision. Mr. Nichols was given a summons which charged him with failing to make a proper turn and failing to signal before turning, and he subsequently appeared in the Manhattan Traffic Division of Magistrates' Court and pleaded guilty to both charges. Upon the negligence trial, held in the Supreme Court, the only witnesses to the occurrence of the accident were the plaintiff and the defendant Nichols who drove the car. According to the plaintiff, Mr. Nichols, after first pulling over to the right, made a left turn without prior warning or signal and struck his motorcycle. Mr. Nichols not only denied that he had moved to the right, but asserted that he had given a signal upon making the turn. b. Evidence: Mr. Nichols' plea of guilt in Traffic Court as an admission c. Question Presented: Should the evidence be admitted? d. Holding: Yes e. Reasoning: The court reversed and remanded because it found that there was no justification for excluding the evidence of his guilty plea. The court found that it was not barred by the hearsay rule because it was an admission and that it did not violate public policy. The court found that so long as the plea was voluntarily and deliberately made, the plea was a statement of guilt, an admission by respondent driver that he committed the acts charged, and it should be accorded no less force or effect than if made outside of court to a stranger. Jury knows people plead guilty to tickets when they’re not really at fault. Let the jury give it the weight they want f. Dissent: This is just like a nolo plea. People admit tickets just because they can’t be bothered to fight them, not because they actually agree they’re at fault. This “guilty” was really more of a “nolo.” 3. Structure of the rule only allows 2 purposes. This rule is a limited/closed list. The others include “such as” language and so are not limited F. Rule 411: Liability insurance 1. Intrinsic: it doesn’t weight one way or another in terms of fault. Probative value is low. Deep pocket idea is likely to sway the jury G. Rule 412: Federal rape shield rule 1. Reverse normal rules of evidence. Before these rules, the defense could ask the victim about her sexual history 2. Went into effect in 1978 a. In 1994 it was extended to cover civil cases as well ad criminal cases 3. Function of the rule… a. 14 day notice if you want to enter evidence. Not done in front of the public and sealed by the court i. Defense attorneys may purposely try to get around notice requirements but judges can exclude evidence as punishments b. Evidence is inadmissible except…. i. Criminal case exceptions -Danger must outweigh probative value. In 403 the probative value must outweigh danger. This favors exclusion, 403 favors inclusion and is weighed in favor of probative value. Here, rule 412 is weight against admission and in favor of prejudice. Danger to victim is explicitly part of the balance. Under 412 if they’re equal it’s staying out. Under 403 if they’re equal it’s coming in. 403 applies for constitutionality but 412 weights prejudice differently. Probative value of the evidence is presumptively low. Does Rule 403 still apply? Yes, but if it falls squarely under the exceptions than the prejudice is unlikely to outweigh. There’s likely to be the forbidden inference as well as collateral 13 issues, waste of time, etc. but the probative value must be high to fall under these rules. ii. Civil case exceptions -One of the only times you don’t use 403 iii. Constitutionality exceptions -Olden and Platero 4. Policy reasons behind rule 412 a. Encourage victims to report and prosecute i. Ex: Before these rules there were 2 rape convictions for NY in an entire year -Police unfounded cases -Victims weren’t willing to report because they didn’t know it was a crime -Prosecutor doesn’t want to try because there’s not enough evidence -Only violent/stranger scenarios go to trial -Character associations at trial led juries to acquit although technically the burden had been met by prosecution i. Is this extrinsic or intrinsic? Mostly extrinsic b. Protect the privacy of the victim i. Is this extrinsic or intrinsic? Both -Intrinsic: -Extrinsic: Want to protect victims c. Prevent prejudicial stereotypes from being entered into trial i. Is this extrinsic or intrinsic? Intrinsic d. This information is irrelevant i. Reputation: What about cases where it’s he said/she said “was it consensual?” What people in the community think isn’t necessarily true -Could the prosecution introduce evidence of chastity? Yes under rule 404 but this is unlikely because it’d open the door 5. Hypo: Classic date rape scenario. Everyone is at a party drinking. Fred walks Susan home. At first she consents and then at some point changes her mind. a. At trial he says she consented and she says she didn’t. He wants to introduce evidence that they had had sex before. Can he? i. The is the first exception under 412(b)1(b): Evidence of specific instances with regard to the accused ii. Do you think this is sufficiently relevant? Maybe not, but old rule was that a husband couldn’t rape a wife—there was perpetual consent. Is it too prejudicial? Perhaps, cultural understandings come in b. At trial, Joe wants to say he had sex with Susan that night i. If the issue is consent than it cannot com in. If this issue is which of the 2 men raped her, then it can come in c. At trial, Joe wants to say he had sex with Susan a week ago i. Not admissible 6. State of Connecticut v. Stephen P. Cassidy a. Facts: Trial for sexual assault. Everyone agrees that defendant and victim met up at a bar and then went back to her house at which point she was willing to have sex. According to victim, she was hit and forced to engage in sex. According to defendant, victim willingly performed sex, then willingly was tied up, and then suddenly changed her mind and regretted having sex. She screamed about her husband at Vietnam. b. Evidence: Testimony from another of the plaintiff’s one night stands who says she consented to sex and than after a while went crazy and started screaming about her husband in Vietnam as happened here according to defendant c. Question Presented: Should the trial court have excluded this evidence? d. Holding: Yes, but it’s a closer question because it’s handiwork rather than general character/chastity. This is a close call, sometimes it might come in under constitutional right to confrontation e. Reasoning: Except in specific instances, and taking the defendant's constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim's sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. Evidence of the victim's prior sexual conduct is inadmissible unless the trial court determines from an offer of proof at a hearing that it fits into one of the statute's exceptions. The defendant's argument focuses on exception (4) of § 54-86f, which permits evidence of prior sexual 14 conduct if it is "so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights.” CX should be enough to impeach unless defendant directly lies. 7. Olden v. Kentucky a. Facts: Petitioner and one Harris, who are black, were charged with the kidnapping, rape, and forcible sodomy of Starla Matthews, a white woman. In his defense, petitioner asserted that he and Matthews had engaged in consensual sex, an account corroborated by several witnesses. Matthews' story was corroborated only by the testimony of one Russell. Petitioner claimed that, at the time of the incident, Matthews and Russell had been engaged in an extramarital affair, and that she had lied to Russell to protect that relationship. b. Evidence: In order to show that Matthews had a motive to lie, petitioner wanted to introduce evidence that Matthews and Russell were living together at the time of the trial. However, the trial court granted the prosecutor's motion to keep such evidence from the jury and sustained the prosecutor's objection when the defense attempted to cross-examine Matthews about the matter after she had testified that she was living with her mother. The jury acquitted Harris of all charges and found petitioner guilty only of forcible sodomy. On appeal, petitioner claimed, inter alia, that the court's failure to allow him to impeach Matthews' testimony deprived him of his Sixth Amendment right to confront the witnesses against him. c. Question Presented: Should this evidence have been admitted? d. Holding: No, prejudice outweighed probative value e. Reasoning: The Court of Appeals of Kentucky upheld the conviction. While acknowledging the relevance of the testimony, it found that the probative value of the evidence was outweighed by the possibility of prejudice against Matthews that might result from revealing her interracial relationship to the jury. Court also thought jury’s decision was inconsistent and justice had not been done 8. U.S. v. Platero a. Facts: Francis and Laughlin were friends driving home from a bar. According to them, Platero pulled them over and they thought he was a policeman. He told Laughlin to leave and walk home and then drove off with Francis and raped her. According to Platero, the car was stopped and Laughlin had voluntary sex with him. Her relationship with Laughlin is at issue. b. Evidence: Platero filed a motion under Fed. R. Evid. 412(b)(1) seeking to introduce evidence of Francis's alleged "past sexual behavior " under the rule which was generally said to be her involvement in a "romantic relationship" with Laughlin at the time of the alleged rape. This was offered in order to show that Francis had a motive to fabricate the rape allegations against Platero. c. Question Presented: Should the evidence have been admitted? d. Holding: Yes. The court ruled that under Fed. R. Evid. 104(b), the trial court was required to present the question of fact as to the existence of a sexual relationship to the jury. The court found that the evidence could have damaged the victim's credibility and caused the jury to disbelieve her testimony entirely e. Reasoning: The error here was that the judge decided the truth of the evidence rather than allowing the jury to decide. The judge shouldn’t have decided there was no relationship between Francis and Laughlin. The court reversed and remanded for a new trial, directing that crossexamiinatio of defendant's victim regarding her relationship with another man would be required if a showing was made that such a relationship existed. The court stated that if the jury were to find no relationship, it should be instructed to disregard the cross-examination; otherwise, it could consider the evidence in ruling on defendant's guilt. i. Couldn’t a defendant always say, “she’s lying to protect her current relationship?” -May be fact sensitive depending on whether boyfriend was in proximity to act -Does Olden require this? You could probably distinguish them H. Rule 413-415 1. Done outside the normal rules approval process. Congress enacted these rules and asked the Supreme Court and Judicial Conferences their opinion. They were against but congress enacted the rules anyway. They were extremely political. Passed in 1994 a. Came about because of William Kennedy Smith case. Everyone knew he had raped before but judge excluded the information and he was acquitted 2. Policy reasons… a. Scientific evidence of recidivism b. Cultural idea that these crimes are more significant/paternalism. Tips the scales in favor of the prosecution i. Is the implication that we should lower the threshold of guilt in these cases? 15 c. Encourage victims (especially children) to come forward by bolstering their testimony through corroboration i. Children tend to have credibility problems on the stand when it’s he said/she said d. Increase prejudice against molesters e. Posner’s addition theory: Prior act shows motive 3. Allow propensity inference in this special class of cases 4. Date rape hypo from above a. Prior conviction for similar rape? Yes b. Prior conviction for similar rape 5 years ago? Maybe, court has to weigh the prejudice and probative value c. Prior conviction for statutory rape? Maybe, court has to weigh the prejudice and probative value i. Some judges say any sex offense shows a propensity for any sex offense 5. Rule 415: Applies 413 and 414 to civil cases a. Ex: Title VII case. Defendant says act weren’t welcome, want to bring evidence in to show this. Defendant has evidence that plaintiff dressed provocatively. Can this come in? Is it fair to make her behavior presumptively irrelevant and his presumptively relevant? 1. Hearsay A. Background 1. Definition: A statement, other than one made by the declarant while testifying at trial of hearing, offered to prove the truth of the matter asserted a. A statement b. Made out of court c. Offered to prove truth 2. Why is hearsay generally not admitted? a. You can’t cross examine an out-of-court witness i. Four dangers of hearsay that cx reveals -Perception -Memory -Sincerity/demeanor -Narrative ability/ambiguity b. If you have to go through a person’s head, then it’s hearsay 3. [p89-90] Sir Walter Raleigh a. What is the statement? i. Cobham admitted he and Raleigh conspired to kill the King ii. Dyer says a Portuguese man heard Raleigh say he was going to kill the king b. Are they made out of court? Yes c. Are they offered to prove truth? Yes d. This might be the impetus for the confrontation clause and hearsay rules in the U.S. i. This seems very unfair, but what about State v. English 4. State v. English a. Facts: English was convicted of 2nd degree murder and appealed, At trial he brought in evidence that Locke told 3 police officers he had done the murder. Locke confirmed this by giving specifics about the condition of the body. The police released Locke and arrested English, the victim’s husband b. Evidence: The testimony of the police officers that Locked had confessed to them i. What is the statement? The confession ii. Is the speaker in court? No, he’s gone missing iii. Is the statement offered to prove it’s truth? Yes c. Question Presented: Should this hearsay have been admitted? d. Holding: No e. Reasoning: The un-sworn statement of a stranger should not be admitted. Even if it logically seems very probative, it’s hearsay and is inadmissible i. Classic hearsay, you can’t test the confession ii. This would probably fall under an exception today. This was a very rigid application of the hearsay rule f. How could you use this statement so that it’s not hearsay?: His description of the room shows he was in the room, it shows the police had other suspects 5. Federal rules adopt the assertion theory of hearsay a. Only look at whether a statement if being offered for the “truth” of the statement 6. Hypo: Custody hearing. Out of court statement by child “daddy tried to kill me.” Mother wants to offer 16 this. Is it hearsay? i. If it was offered to prove the father tried to kill the child, it’s hearsay ii. If it was offered to prove the child is afraid/child’s state of mind, then it’s not 7. Estate of Murdock a. Facts: Mr. Murdock left his estate to his wife and then to the Murdock children. Ms. Murdock left the estate to the Hayes children. Mr. and Ms. Murdock died together in a plane crash. The crucial issue is who lived longer. A sheriff from the scene testified Mr. Murdock outlived his wife. b. Evidence: The police officer’s testimony that he heard Mr. Murdock say “I am alive” when his wife was dead c. Question Presented: Was this hearsay? d. Holding: No e. Reasoning: Here the issue is not whether this utterance is true as a matter of fact, but rather Mr. Murdock was alive at the scene i. Seems like it’s offered for its truth, but it’s not B. What is not hearsay? 1. Rule 801(a): Statement a. Statement must an assertion or intended as an assertion i. Ex: Pointing, nodding, shrugging shoulders can be assertive conduct ii. What’s not an assertion? -Ex: Statement by declarant used to show declarant made an offer for a carload of widgets for $3000. Statement out of court “I offer you a carload of widgets for $3000.” *Offered to prove there was a contract *Legally operative language, there’s no proof to prove. Doesn’t matter if this is true, the fact that it was made is what matters. Like libel -Ex: Someone wants to testify the defendant yelled “fire” in a movie theater. Is this offered to show proof? No, just to show it was said (version of legally operative language) *How do you test this? CX the person on the stand -Ex: Libel/slander, gift -Ex: Surgery, doctor leaves a sponge in the incision. Suit for negligence. Witness wants to testify that they heard someone else say “the sponge count came out wrong?” *Who is the declarant? Unidentified 3rd party not in court *Is this hearsay? Is this offered to prove the truth of the statement (what was the sponge count)? No, just to prove that someone warned about the sponge. Shows notice not fact -Ex: Mr. Smith makes cocktails for everyone but himself. Everyone else was poisoned by arsenic and died. The glasses had arsenic in them. Mr. Smith is being prosecuted for murder. Mr. Jones is prepared to testify that the day before the murders he sold Mr. Smith some rat poison. *Is this hearsay? No. Mr. Jones is testifying about what he did *What if Ms. Smith wants to testify someone else told her that her brother bought rat poison? That’s classic hearsay -Ex: E on trial for shooting T. Day after murder, witness signs a statement saying they saw E shoot T. Police officer wants to give evidence of this signed statement *What’s the statement? I saw E shoot T *Who is the declarant? The out-of-court witness *Is it offered for its truth? Yes -Ex: A is hit by a brick thrown through her windshield. Police arrest J. At trial she wants to testify that right after this incident, M told her he saw J throw the brick * What’s the statement? I saw J do it *Who is the declarant? The out-of-court witness *Is it offered for its truth? Yes -Ex: Same as above but M points rather than makes an oral statement *Same as above. Pointing is assertive conduct b. Can be written, oral, or nonverbal c. Double relevance: What if there’s an issue of legally operative language and the veracity of a statement? Use limiting instructions under Rule 105. 17 i. What if there’s loads of probative value? Do the 403 balance against prejudice. Double relevance makes something extremely prejudicial 2. Hearsay analysis a. Is it a statement? i. Is it a verbal or written assertion? ii. Is it conduct intended as an assertion? b. Who is the declarant? a. Is the declarant out-of-court? b. If declarant is in court, is statement made out of court? c. What is the statement offered to prove? a. Is it being offered for the truth of the matter asserted? or Does the probative value depend on its truth? b. Is it being offered for another, non-hearsay, reason? i. To show effect on the hearer -Did someone else have notice? -Ex: “The sponge count is wrong” -Ex: Subramaniam v. Public Prosecutor: Statement not admitted to show the truth of the statement but to show the effect on the hearer to prove duress, his defense -Ex: Vinyard v. Vinyard Funeral Home: Statement not admitted to show the truth of the statement but to show the defendant was on notice of the dangerous condition *What if the condition was also at issue? If there’s double relevance then the defendant can ask for a limiting instruction under Rule 105 -Ex: Johnson v. Misericordia Comm. Hosp., not used to show whether doctor is incompetent shows what the defendant should have found about the doctor before hiring *What about the old supervisor’s statement “I fired him”? Even if the supervisor is on the stand, if the statement was made out of court and it’s offered to prove the truth of the statement then if is hearsay although it’ll probably come in under an exception -Yet the act of firing might be admitted because it might not have been intended as an assertion -Ex: U.S. v. Hernandez. Trial court allowed evidence in to show the agent’s state of mind, it shows why she was investigating the defendant. But there is dual relevancy to the material fact of the truth of the statement (defendant’s drug past). The appellate court said the state of mind of the agent wasn’t an issue in the case. The prosecutor attempted to us this evidence as a pretext, it was only used in a hearsay manner ii. To show state of mind -Ex: “Daddy tried to kill me” -Ex: Fun-Damental Too v. Gemmy, customer statements not offered to prove the truth of the matter but to show the declarant’s state of mind and inability to differentiate between the products *Implied belief is confusion. Express assertion is a questions about why KayBee sold the bank for less. The customer wasn’t intended to assert that they were confused, they didn’t even know they were confused. That’s why this is not hearsay *What about a customer statement “I am confused about the source of the product, they look the same”? Then it’s hearsay because it’s offered to prove the customers were confused. In that case, the state of mind if the issue in question. Since the statement is to his state of mind, then it’s hearsay iii. Legally operative language -Legally operative language *Credibility/veracity is irrelevant. Language itself creates a legal relationship -Ex: “I offer you these widgets for $3000” 18 -Ex: Ries Biological v. Bank of Santa Fe, statement not offered to prove truth of the matter but to show legally operative language of a loan iv. Verbal act -Ex: Estate of Murdock, “I am alive” 10. Morgan Hypos [p132-133]… is this hearsay? a. On issue of whether there was an engagement, “I promise to marry you.” i. No. Legally operative language (depending on substantive law) b. To prove X had tuberculosis, the fact that Dr. D ordered him to a sanitarium and concealed the nature of the hospital i. No. Non-assertive conduct ii. Under Wright this would be considered hearsay. The action implies a belief c. To prove X’s honesty, the fact that D promoted X to order clerk i. No. Non-assertive conduct d. To prove X’s insanity the fact that he was committed to an insane asylum i. No. Non-assertive conduct e. To prove D killed X, the fact that D fled suspiciously in order to draw suspicion upon himself i. Yes. Because he intended to draw suspicion upon himself, this conduct is assertive f. On D’s sanity, D’s statement “I am the Pope.” i. No. Circumstantial evidence of state of mind g. On the issue of D’s adverse possession D’s assertion “I own this farm” i. No, Depending on substantive law, this could be legally operative language h. On the issue of X’s provocation for assaulting Y, D’s statement to X “Y ravished me” i. No. Goes to the effect on the hearer for provocation i. On D’s consciousness, D’s statement “X shot me like he threatened to” i. No. Verbal act like Murdock j. On the issue of the identity of the shooter, D’s statement “X shot me” i. Yes. Offered to prove the truth of the matter asserted k. On the issue of whether X made threats to shoot D, D’s statement “X shot me like he threatened to” i. Yes. Offered to prove the truth of the matter asserted l. On the issue of X knowing he was dying, D’s statement “you are dying” i. No, Effect on the hearer m. On the issue of X knowing he was dying, X saying “I realize I am dying” i. Yes. Goes to state of mind, but state of mind is the issue to be proven so it does go to the truth of the matter asserted -But under the federal rules there’s an exception for the defendant’s state of mind. Definitionally it is hearsay but it does get allowed in n. On the issue of whether chattel transfer from X to D was a gift, X’s statement “I am giving you this chattel as a birthday gift” i. No. Legally operative language o. On the issue of whether chattel transfer from X to D was a gift, X’s statement 2 days later “I gave you the chattel as a birthday gift” i. Maybe. Depends on substantive law. Usually an element of the gift is the statement of donative intent concurrent with the gifting. If that’s the case this is hearsay p. On the issue of damages for loss of reputation for seduction, her reputation for chastity i. No. Is reputation a statement? Usually not. Also, it doesn’t matter if the reputation is true or false q. On the issue of D disliking X, D’s statement “X is a liar” i. Maybe, probably no. Depends whether D intends to imply that he dislikes X. That’s a question for a judge. When D says “X is a liar” he’s really saying “I think X is a liar.” The implied assertion if that D dislikes X -Under Wright, this would be hearsay r. To prove adultery, husband wants to enter evidence of wife’s birthmark. The truth of birthmark is already prove. Husband wants to testify that houseguest described the mark i. Arguments on both sides, like the Lilly/Bridges trace on the mind s. Action for malicious prosecution of P by X for murdering Y. Issue is probable cause. Proof is P’s reputation, known to X i. Can reputation be true or false? Putting this aside, is it hearsay? Not offered for its truth, whether P’s reputation is deserved or not it goes to whether X had reason to sue or whether X sued for no reason 19 B. What is an assertive statement? 1. U.S. v. Zenni [p106] a. Facts: While conducting a search of defendant's premises, pursuant to a lawful search warrant which authorized a search for evidence of bookmaking activity, government agents answered the telephone several times. The unknown callers stated directions for the placing of bets on various sporting events. b. Evidence: The government proposed to introduce the evidence to show that the callers believed that defendants used the premises in betting operations. c. Question Presented: Is this hearsay under hearsay, under Fed. R. Evid. 801? d. Holding: No e. Reasoning: The utterances of betters telephoning in their bets to defendants were nonassertive verbal conduct, offered as relevant for an implied assertion that bets could be placed at the premises being telephoned. As such implied assertions, the evidence was expressly excluded from the operation of the hearsay rule. This is a direction, not an assertion. Here the court says implied beliefs aren’t hearsay i. Court cites Wright v. Tatum: Issue over letters showing the sanity of the testator which didn’t explicitly address the issue of his sanity. The court said this was classic hearsay. This was the common law rule until the federal rules were written. They didn’t recognize implied assertions, only explicit assertions -Ex: Sea captain inspects a ship and then sets sail with his family. The implied belief is that the ship is seaworthy. The court in Wright said that, if this were offered to prove the ship is seaworthy, then it’s hearsay. -Ex: What if he had said “I’m going to set sail?” Now you have verbal statement which implies the ship is seaworthy. Under the federal rules, this may or may not be hearsay based on whether the captain meant this to be assertive. This is a matter for the judge. Under Wright and current British rule, it’s hearsay -Ex: What if the captain had said “The ship is seaworthy, I am going to set sail?” That’s classic hearsay -Ex: What if he says “I am taking my family on the ship” but doesn’t mean to assert the ship is safe. Then it’s not seaworthy 2. Why allow implied assertions in? Why not consider them hearsay? a. There’s no credibility problem, cross examining these people wouldn’t help. There’s no intent the assert the implied belief, so there’s no issue of credibility 3. The Rothschilds a. Nathan find out the battle of Waterloo will be lost and rather than buying stock, sells stock. Conduct can be deceptive. The conduct here raises an issue of sincerity. Nathan was acting in a way to purposefully mislead everyone 4. Comonnwealth v. Knapp a. Facts: Defendant was indicted and tried as an accessory to murder. A relative was convicted as a principal. A third man committed suicide before trial. b. Evidence: The suicide. Pure conduct, non-assertive c. Question Presented: Should this be admitted? d. Holding: Yes e. Reasoning: When judge examined the context, he determined that this wasn’t intended as an assertion. He didn’t leave a note or say “I am killing myself because I am guilty” which would have shown the action was intended as an assertion. Pure conduct is rarely considered hearsay 5. Silver v. NY Central RR a. Facts: Defendant, a railroad, argued that the trial court erred in refusing to rule that it was only liable for plaintiff's injuries if it had negligently allowed the car plaintiff occupied to become so cold as to endanger the health of people of ordinary good health. Lower court excluded the conduct b. Evidence: The fact that 11 other passengers didn’t complain about the temperature c. Question Presented: Should this have been admitted? d. Holding: Yes e. Reasoning: Is silence conduct? Under the federal definition, silence is non-assertive. The court found that evidence of the absence of complaint about the temperature from other passengers in plaintiff's car should have been admitted if their circumstances were substantially the same as plaintiff's. The court found that it would not have been equivocal, because ordinary prudence would have required one to speak out if the car was too cold C. The testimony of children 1. Lilly: Little girl was molested. She describes the house where she was molested to her mother. In trial, 20 mother wants to testify as to the child’s description of the inside of the house. Judge let it in but this case is highly prejudicial. Testimony of this sort is let in as a “trace on the declarant’s mind.” It shows she was there like a fiber from the carpet on her shoe. It just establishes that she was there a. Defendant’s argument: This is hearsay. It’s offered to prove the truth of the matter asserted. Her assertion is that she was molested in a house of X description and the testimony shows the house is of X description. Probative value depends on whether testimony is true i. Cross examination wouldn’t accomplish anything. What are the odds she would make up details that then matched exactly b. Prosecutor’s argument: This is not hearsay, she’s not establishing X description. She’s showing she was in the house D. Animals 1. Buck v. State a. Facts: Trial for arson b. Evidence: That Diane and Old Boston, 2 bloodhounds, trailed the defendant c. Question Presented: Are these bloodhounds qualified enough that this evidence should be submitted to the jury? d. Holding: yes e. Prosecution’s argument: This is assertive conduct. The dog doesn’t randomly trail, when it trails it is making an assertion. Trainer can testify to the reliability of the dog, the dog’s credibility is unimportant. The dog is like a radar gun, you train it to do something and it does it. Dogs don’t lie f. Defendant’s argument: Dog’s don’t assert things and you can’t cross examine the dog. g. Reasoning: The court looked at several other decisions, State v. Hall found that a well trained bloodhound could be used to develop circumstantial evidence although the dog’s qualifications could be questioned. in Blair v. Commonwealth the court argued that dog could be trusted. The court looks at the history and decides that bloodhound tracking evidence is permissible with 2 caveats (1) the bloodhound in question must be a reliable tracker and (2) the tracking is only circumstantial evidence. There can be no question but that the evidence as to the training and experience of the two dogs, and especially "Old Boston," was such that it entitled the court to submit it to the jury for their consideration, together with the other facts and circumstances, and under the law we cannot say that the verdict of the jury should be set aside. 2. Under rule 801, animal’s statements aren’t hearsay. The handler can be cross-examined a. Ex: Parrot hypo. Do you treat this as a “trace on the person’s mind” or like a bloodhound/machine? i. For admitting: This isn’t an assertion, it’s like “Place 5 on Paul Revere.” The parrot is repeating something he heard during the murder, this is like a tape recorder. That makes it a trace on the parrot’s mind ii. For excluding: There’s no proof this has anything to do with the murder E. Exceptions to hearsay 1. Rule 803(9) a. Hypo: Can someone testify as to their middle name? Can you admit the birth certificate? Is this hearsay? There’s a special exception for records of vital statistics. What about testifying to your middle name or the time? It’s technically hearsay. We let them in because it makes sense to i. When these things are at issue, when they’re critical to the case, then there might be an inquiry to credibility 2. Common law exceptions, rule exemptions a. 803 exemptions and 801(d) exceptions 3. Sufficiently reliable to be admitted despite being hearsay 4. Rule 803 a. Availability of declarant immaterial 5. Rule 804 a. Declarant must be unavailable F. Review of hearsay 1. [p105] X pros. for assault on A. X uses self-defense. Pros. calls B to say A told him X had hit him before a. Character evidence: This is a prior act, is it admissible? You could argue this is being used to show motive b. Hearsay: This isn’t not NOTMA but to show that A had a reason to fear X, even if the prior assault isn’t factually true. It goes to A’s state on mind to show A wouldn’t attack X because he’s scared of him 2. [p105] X pros. for murder of A. A died from bullet wound in X’s apartment. X says the gun went off accidentally. B wants to testify that a week prior A told him X threatened to kill him 21 a. Hearsay: The declarant is A, hearer is B. The argument is that this is for NOTMA but to show A’s state of mind. When you think someone is going to shoot you and you’re scared of him, you don’t go to his apartment to look at his gun 3. [p106] While A watched TV, X shot her 3 times. To negate intent, X testifies his mental condition was impaired. Pros. calls B who wants to testify that A knew X was going to kill her a. Hearsay: Under state of mind, B didn’t make the statement to X and X didn’t make it. The only way it’s relevant is if it’s offered for the truth of the matter. Whether she was afraid of him is the TOMA. That’s why it’s hearsay. Her fear isn’t relevant to any issue in the case G. Definition of hearsay analysis 1. Is it a statement? Rule 801(a) a. If conduct, is it assertive? i. Ex: Pointing v. opening an umbrella? b. If verbal/written, is it an assertion? i. Ex: Placing a bet (Zeni), letters (Wright v. Tatum) ii. Questions and declarations are not assertions c. If verbal/written but asserts something different? i. Under 801(c ) it’s not hearsay because it asserts something but it’s not asserted to prove the truth of the matter asserted 2. Was the statement made by the declarant while in court? 801(c ) a. Watch for trick question where declarant is testifying as to her statement made earlier while out of court 3. Is it offered for the truth of the matter asserted/does probative value depend on its truth? Rule 801(c ) a. Typical non-truth purposes i. Legally operative language ii. Effect on the listener (notice, knowledge) iii. State of mind of the declarant (confusion, knowledge) -Traces of the mind -Guilty knowledge by someone else other than defendant iv. Verbal act v. Other non-truth purposes which are used to prove something else 4. Is it a hearsay exception under 801(d) II. Hearsay Exceptions in 803 and 804 A. Dying declarations 804(b)(2) 1. Requirements… a. Declarant must be unavailable 804(a) i. Doesn’t have to be cause my death, may be -Exempt by privilege -Refuses to testify despite court order -Testifies to lack of memory -Death or infirmity -Absent and can’t be reached by reasonable process b. Declarant must have belief of impending death i. Judge decided under 105(a) due to dual relevancy, time constraints etc. ii. Purely factual decision c. Must be discussing circumstances of what is believed to be impending death d. Prosecution for homicide or a civil action i. The federal rules broaden for civil action, common law rule was only for murders 2. Hypos: a. X is accused of murdering Y. Day before Y’s death Y tells police officer “X shot me” in response to being asked “what happened?” Admissible only if you can show Y believed he was about to die. Burden of proof is on the prosecution and they have no foundation here b. Same as above but police officer says “I said to Y, you’re dying” and then Y said “X shot me.” Is the police officer’s statement hearsay? No, it shows Y’s state of mind and NOTMA. Now is Y’s statement an exception? Probably c. Civil case. On deathbed Y says “I am aware I’ll die soon and X owes me money.” Admissible? No, must be about the circumstances of death d. Civil case over car accident. Someone in the accident says “I’m dying and the other car crossed the center line.” Admissible? Yes, this is a dying declaration 3. Person who is claiming the exception has burden of proof a. Standard of preponderance of the evidence 4. Why allow this exception? 22 a. People tell the truth on their deathbed. Exceptional reliability of trustworthiness i. Based on religious justifications, is this true today? ii. Stress makes one unable to lie b. Necessity, the declarer is dead 5. Soles v. State [p137] a. Facts: Defendant appealed his conviction for manslaughter contending that the trial court erred in admitting a dying declaration and in refusing to instruct the jury not to consider the statements to be a dying declaration if it found that the statement was not made with consciousness of impending death. Arthur Robinson was driving the automobile in which Clifford Long, was shot. About an hour before he died, according to the testimony of his father who asked who had hurt him, he replied: "Oh! Daddy, Carl Soles shot me with a 22 rifle. I have got to die." The statement was made about twenty or twenty-five minutes after he was shot. b. Evidence: The sister of deceased, a girl about fourteen years old, testified to the same fact and added that about fifteen minutes after the deceased was brought to the place where the statement was made the defendant came on the scene driving a truck. No one was with him and he had a "22 rifle." Clifford said, "'Oh, Daddy, Carl Soles shot me with a 22 rifle.” c. Question Presented: Was the statement was inadmissible not only because the court did not inquire of others present whether the deceased said he had to die, and that one other witness who was present said he did not hear such statement, but that the statement contained no evidence that the declarant made it in the belief that death was impending. d. Holding: No e. Reasoning: Defense wanted a limiting instruction telling the jury that it should be disregarded if it was made without consciousness of death. The Court has admitted in evidence for your consideration an alleged dying declaration of the deceased. In so admitting said dying declaration the Court has only passed upon its admissibility. After a dying declaration, or any other evidence has been admitted, the weight to be given to it is a matter exclusively for the jury. They may believe it or may not believe it; but, so far as they do or do not, their judgment is not controlled by rules of law. Therefore, though they themselves do not suppose the declarant to have been conscious of death, they may still believe the statement; conversely, though they do suppose him to have been thus conscious, they may still not believe the statement to be true. In other words, their canons of ultimate belief are not necessarily the same as the preliminary legal conditions of admissibility, whose purpose is an entirely different one. It is, therefore, erroneous for the judge, after once admitting the declaration, to instruct the jury that they must reject the declaration, or exclude it from consideration, if the legal requirement as to consciousness of death does not in their opinion exist. No doubt they may reject it, on this ground or on any other; but they are not to be expected to follow a definition of law intended for the Judge. This court held that "the court determines the admissibility, and the jury the credibility, of confessions. It is not error, therefore, for the court to refuse to charge the jury that if they be believe from all the evidence that defendant's confession was procured from fear or terror, or hope of reward, they should disregard the confession in making up their verdict. The jury gets to decide the weight, the instruction would only confuse the jury. 6. Does the declarant have to have person knowledge about his statement? How did the declarant know who shot him when the shot came from behind? What if someone else was the shooter? Lay witness requirements say someone can only testify as to personal knowledge. Should this declarant be subject to the rule. Advisory committee notes say this person IS treated like a witness and the rules do apply 7. Hypos [p144] a. Was there a belief of impending death? What does the judge do when they’re conflicting evidence? What if the judge believes both parties? Burden of proof if on the person offering the evidence. If the evidence is neutral and the judge can’t decide then the burden is not met and the evidence has to stay out b. Should non-hearsay statements go before the jury in order to counteract the deathbed statement. What if the evidence shows this isn’t a dying declaration? The evidence cannot come in because it’s not relevant since believe of impending death is no longer an issue. Perhaps it might be relevant to credibility/weight. So it’s not totally irrelevant. The evidence helps the jury weight the evidence B. Statements by agent/employee 1. Big Mack Trucking Co. v. Dickerson a. Under theory of respondeat superior, plaintiff needs to prove the employee was negligent to hold the employer responsible. Statement made by employee is admissible against the employee under 801d(2)(a). Why was this statement not admissible against the employer? He didn’t make the statement under the course of employment and he didn’t have the authority to comment 23 i. Under the common law rule, the employee must be specifically authorized to speak -This creates a paradox… if the employee is negligent, employer liable. But if the evidence not admissible then employer wins because there’s no evidence. Disconnect between substantive law and rules of evidence ii. Under Federal Rule, any statement made in scope of employment is admissible -Statement must occur while the agent is an employee, not afterward b. Why wasn’t this an excited utterance? There was no evidence he was excited c. What about statement against interest? 804(b) that requires unavailability, there was no evidence plaintiff was unavailable? 2. Sabel v. Mead Johnson a. Illustration of the substantive law of agency… i. Power on the part of the agent ii. Fiduciary relationship iii. Control of the agent by the principal b. Here there was no authority to speak and this was just an informal brainstorm session. These experts were hired but not to make statements about the drugs 3. Allowed to facilitate commerce C. Statements of Co-conspirators 801(b)(2)(e) 1. Rationale… a. Conspirators are agents of each other, they’re all acting together b. Fairness, don’t treat criminals better than agents c. The fallacy: There’s no justification to encourage criminal conspiracy the way we encourage commerce under the agent exception d. Necessity, it’s hard to prove conspiracies 2. Statements made before you joined the conspiracy are admissible 3. U.S. v. Doerr a. Furtherance requirement i. Not present in agency but present for conspiracy, why? -Statements used to prove conspiracy so it makes the statements more reliable -Used to prove declarant is a member of the conspiracy -Recognition that agency is a fiction, so the rules restricts admissions b. Why was this not in furtherance? i. They were not trying to recruit someone to be part of the conspiracy. The court doesn’t feel this language was part of the conspiracy ii. Idle chatter doesn’t count iii. Narrative doesn’t count 4. Bourjaily v. U.S. a. Common law rule was that you couldn’t use the statement itself to prove the existence of the conspiracy or the part’s participation. You needed separate outside evidence first to get the statement in b. Federal rules of evidence 104(a) got rid of the bootstrapping rule. You can consider the hearsay statement itself for the foundation of the conspiracy c. Very literal reading of the rules d. What if the only evidence of the conspiracy is the statement “my friend wants to buy the drugs,” then can it come in? i. Supreme Court doesn’t decide this ii. Rule 801(d) says this is not enough by itself (1997 amendment) e. Would that have changed the admissibility here? Was this the only evidence of conspiracy here? No. They found money in the friend’s car when they arrested him. There was lots of corroborating evidence i. There’s usually corroboration f. Dissent: Statement cannot be used to create authority, ignore the plan language of the rules 5. Hypos: a. Plaintiff sues pizza company because pizza ingredient explodes…. are these statements admissible… i. Letter from scientist written to president in the company file-Not admissible. There’s an adoption of the statement and the scientist isn’t an agent ii. Report written by a company scientist-Admissible, the person is making the statement during employment and within the scope of employment iii. Company retains a scientist to report on dangerousness of ingredients-Admissible. He’s an agent now 801(b)(2)(c) or (d) 24 iv. President sends a note to chief scientist and attaches a scientific article and tells scientist to find a new ingredient-Admissible because it is president’s own statement and he manifests a belief in the truth of the report v. Same as above but he just says “check this out” rather than manifesting a belief-Not admissible, no adoption of the statement b. L, M, C want to rob a bank. They recruit S to drive the getaway car. L tells C about their plan. i. Are L’s statements admissible against L? Yes, admission of a party ii. Are L’s statements admissible against M and C? Yes, they’re made by a conspirator, they’re made trying to recruit/in furtherance of the conspiracy iii. Are L’s statements admissible against his brother G? No, idle chatter. Admissible against L but not C and M because it’s not in furtherance of the conspiracy c. L find out police are looking for him. Makes a pact of silence with C. i. Are L’s statements admissible against L? Yes, his own statement ii. Against M? No. This is a separate conspiracy. These are 2 separate enterprises [see p186] -Sometimes there’s no bright line between old conspiracy and new conspiracy d. Robbery committed by M and L and only evidence against L is that L told her L would drive the car if she didn’t. i. If this is only evidence of L’s involvement, is it admissible? No. Need other corroborating evidence under 801(b)(2) e. Under the new federal rules amended… i. Not admissible, it can’t be the only evidence f. Same facts with other evidence, C was seen in the getaway car and he had a lot of money afterwards i. Admissible, there’s corroboration 6. Issue of admissibility doesn’t affect burden of proof at trial D. 804(a) Unavailability 1. Person takes the stand and asserts privilege 2. Person takes the stand and admits no memory (court must credit) 3. Unreachable by process or other reasonable means, 804(a)(1) a. National criminal action b. Within the district and 100 miles from courthouse for civil action c. Sometimes people outside the country can be reached d. State process within borders of the state and from state to state under uniform act e. Even if the person is outside the area, there must be reasonable attempts to reach them 4. Death or illness of witness 5. Witness refuses despite a court order 6. Hypos [p206] a. Prosecution has tried to find A but hasn’t exhausted all revenues. A isn’t unavailable because reasonable means have not beet taken by prosecution b. Civil matter. A subpoena was sent to place of employment and A wasn’t there. B called A and A said she’d stay in NY for 6 months. If there’s a uniform act then they could still subpoena. If this is true, then A is not unavailable 7. Burden of proof is with the party offering the testimony E. 804(b)(1) Former Testimony 1. Most reliable form of hearsay, why have a requirement? a. In other examples where unavailabity is immaterial, the testimony at trial isn’t a substitute because conditions of excitement/contemporaneousness aren’t apparent. Here, the demeanor could be replicated at trial so unavailability is important. It’s better to have the witness there 2. Requirements… a. Witness is unavailable b. Testimony was given under oath c. Must be same party/predecessor in interest i. What is a predecessor in interest? -Loyd: Similar motive to cross examine. Very broad interpretation d. Opportunity to cross examine/direct/or re-direct e. Similar motive to develop testimony i. Not the same as similar issue *** 3. Traveler’s Fire Ins. Co. v. Wright [p195] 25 a. Facts: This is an action by J. B. Wright and J. C. Wright to recover $ 20,000 on two fire insurance policies. The defendant fire insurance companies defended on the ground that the fire that destroyed plaintiffs' property was deliberately caused by the plaintiff, J. B. Wright, with the intent of cheating and defrauding defendants. Defendants alleged and proved that plaintiffs, J. B. Wright and J. C. Wright, were partners at all times involved herein. The jury returned a verdict for plaintiffs in the amount of $ 20,000 upon which the court entered judgment resulting in this appeal. b. Evidence: Defendants called Wm. Holland Eppler and Albert Brown as witnesses. Each witness claimed his constitutional privilege against self-incrimination and refused to testify. The claim of each was granted by the trial court. Defendant then offered certified transcripts of testimony given by each witness in the trial of a criminal case. Such testimony was to the effect that J. B. Wright, with the aid and assistance of the two named witnesses, actively procured the burning of the property. Each offer was rejected by the trial court. The court reporter who took the evidence in the criminal case testified as to the correctness of his transcript, the nature of the case in which the testimony was taken, and the parties involved. In addition to offering the transcript, defendants offered to have the reporter read same in evidence. i. Are the declarants unavailable? Witnesses asserted a privilege (5th amendment) ii. Are these the same parties in interest? Statement are admissible against J.B. Wright. There was no mutuality in this rule or the federal rule. It doesn’t matter that Traveler’s wasn’t a party to the first suit -Can the statement be used against someone not a party to the prior suit? Why was it material? The substantive law made it relevant when there was collusion. Why can the statements be used against J.C. now? Because he and J.B. had the same interests in cross examining. This depends on “predecessor in interest” is interpreted? c. Question Presented: Should this have been admitted? d. Holding: Yes e. Reasoning: The court held that testimony from a criminal case may be introduced in a subsequent trial where it appears that it is impossible to obtain the testimony of the witness who testified in the criminal case. The former testimony was admissible since there was an opportunity for the opposing party to cross-examine the witness. The principle, then, is that where the interest of the person was calculated to induce equally as thorough a testing by cross-examination, then the present opponent has had adequate protection for the same end. Thus the requirement of identity of parties is after all only an incident or corollary of the requirement as to identity of issue. It ought then, to be sufficient to inquire whether the former testimony was given upon such an issue that the party-opponent in that case had the same interest and motive in his cross-examination that the present opponent has. 4. Hypos [p206] a. Can the state be a processor in interest for the city? Technically they’re not the same party. What if the court reads the requirement broadly? Then the court might find the motives to be the same i. Federal gov’t and the state are not considered the same party, unless there’s a broad reading 5. Issue preclusion/collateral estoppel a. In some situation this comes into play b. Other times you have the same issue and the same party but there’s no preclusion i. Wasn’t fully litigated (guilty plea) 6. United States v. Salerno, similar motive a. Facts: Defendants took part in the activities of a criminal organization. During grand jury proceedings, witnesses testified against defendants under a grant of immunity. Defendants were indicted on a variety of federal offenses. During the trial, witnesses refused to testify, invoking their privilege against self-incrimination. Plaintiff sought to admit the transcripts of the witnesses' grand jury testimony under the hearsay exception of Fed. R. Evid. 804(b)(1) for former testimony of unavailable witnesses. The district court refused to admit the transcripts because there was no similar motive. The appellate court reversed that decision and said the similar motive doesn’t apply in the context because the government could call the witnesses and grant them immunity but they didn’t. b. Evidence: The transcripts c. Question Presented: Should they have been admitted? d. Holding: Probably not e. Reasoning: You cannot read the requirement out of the rule—there has to be a similar motive. 26 The court reversed the appellate court's judgment. The transcripts could not be admitted under Fed. R. Evid. 804(b)(1), unless plaintiff had a similar motive to develop the testimony, because Fed. R. Evid. 804(b)(1) did not suggest that former testimony could be admitted absent satisfaction of the Rule's elements, and the parties did not forfeit testimonial privileges. The court remanded the case for a determination as to whether plaintiff had similar motive for developing witnesses' testimony at trial. A prosecutor, it explains, must maintain secrecy during the investigatory stages of the criminal process and therefore may not desire to confront grand jury witnesses with contradictory evidence. It further states that a prosecutor may not know, prior to indictment, which issues will have importance at trial and accordingly may fail to develop grand jury testimony effectively. The Court of Appeals, as noted, erroneously concluded that the respondents did not have to demonstrate a similar motive in this case to make use of Rule 804(b)(1). It therefore declined to consider fully the arguments now presented by the parties about whether the United States had such a motive. Rather than to address this issue here in the first instance, we think it prudent to remand the case for further consideration. i. What if these witnesses died? Still not admissible because there was no opportunity for defendants to cross examine ii. Government can get this testimony in, all they need to do is give the witnesses immunity iii. Why might to motive be different in the grand jury? The prosecutor might have just been trying to get an indictment. Prosecution might not want to reveal a wiretap and informants during an investigation. Might not be enough evidence to impeach. Circuits are split on this issue 7. Hypo 5 [p206] a. D charged with drug possession and arrested for something different. At the time of the arrest, D and X live together. Hidden drugs found. D says he didn’t know about this but he saw X doing drugs. D had testimony from X in a different trial for murder where, on cx, he admitted that he was with someone who was on drugs. Is the former testimony admissible offered by D against the government? i. Here the evidence is offered against the state, a party in both trials. Same party ii. Did the state have a similar motive in the first trial? In the first trial, the government was trying to show X wasn’t a drug addict. That’s the same as in the second trial F. Declarations against interests 1. Require unavailability a. Why have an unavailability requirement? Should there be? Many people argue there shouldn’t be. There is a high degree of trustworthiness. 2. Were against interest 3. Can be offered against anyone, not just party opponent 4. Under the common law, these only counted if they were against money interests. Federal rule expanded to include penal interests a. Ex: Teenager caught shoplifting. Signs agreement that was shoplifting. Would a teen sign it even if they were innocent? Maybe 5. McKelvey Co. v. General Casualty a. Facts: Appellee insured was the holder of a policy of insurance issued by appellant insurer, insuring appellee for losses that it might suffer through larceny, theft, embezzlement, or other dishonest or fraudulent acts by its employees. Appellee insured brought an action against appellant insurer following appellant's refusal to cover thefts by appellee insured's employees. The employees had previously given written and signed admissions, but were unavailable as witnesses during the trial. b. Evidence: Signed admissions c. Question Presented: Should they have been admitted? d. Holding: Yes e. Reasoning: The court here determined that in appellee insured's action against appellant insurer to recover for defalcations by employees, where such employees were unavailable as witnesses after having been summoned and not found in the jurisdiction by the sheriff, written and signed confessions of such employees were admissible in evidence as declarations against interest as to both the fact and the amount of the loss. Where death, absence from the jurisdiction or insanity makes a witness unavailable, and where such witness is the only source from which his evidence can be obtained, as a matter of necessity a declaration by such witness against his interest should be admitted in evidence. A person does not make statements against his own pecuniary interest unless they are true and have thus considered such statements trustworthy, even though there is no opportunity to confront the witness or to cross-examine him. A declaration against interest by one 27 not a party or in privity with a party to an action is admissible in evidence, where (1) the person making such declaration is either dead or unavailable as a witness due to sickness, insanity or absence from the jurisdiction, (2) the declarant had peculiar means of knowing the facts which he stated, (3) the declaration was against his pecuniary or proprietary interest and (4) he had no probable motive to falsity the facts stated. 6. U.S. v. Barrett, statement against penal interests a. Facts: Appellant was convicted of various crimes arising from the theft and sale of a collection of postage stamps taken from a museum. At appellant's trial, the trial court refused to admit the evidence of three defense witnesses who could provide exculpatory testimony. Appellant sought review of his conviction, and the court vacated and remanded for a new trial. b. Evidence: One of the witnesses that appellant sought to present would have testified that he had a conversation with a co-conspirator who admitted that he but not appellant was involved in the theft. The co-conspirator who made the statement died prior to appellant's trial. c. Question Presented: Should this have been admitted? d. Holding: No e. Reasoning: The court agreed with appellant that the testimony could be admissible as a statement against interest pursuant to Fed. R. Evid. 804(b)(3). Was the statement against Mr. Tilley’s interest? if so, why? District court said part of the statement was not against his interest. Appellate court said you had to look at the statement as a whole. Where a declarant was unavailable as a witness, a statement made by him that exposed him to criminal liability and offered to exculpate the accused was admissible provided that the statement was proven to be trustworthy by corroborating circumstances. The trial court never inquired into the trustworthiness of the statement before deciding to exclude it from the evidence. Fed. R. Evid. 804(b)(3) requires a two-stage analysis: first, do the offered remarks come within the hearsay exception as a "statement against interest" and second, if they do, is there sufficient corroboration to clearly indicate trustworthiness? According to 804(b)(3), to be received as a prior inconsistent statement, the contradiction need not be in plain terms. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. i. Why have this second requirement of corroboration? Don’t let the crime get pinned on some dead or unavailable person ii. What do you do with collateral statements? What if the statement is neutral? There’s a split of authority on how to deal with it when it’s attached the a statement against interest -Williamson v. U.S.: Court said that you could not admit parts of the statement that were not against the person’s interest. 3 justices dissented and said you should. Only parts of statement against interest admissible *Favorable statements can “curry favor” or shift blame F. 803(3), State of mind exception 1. How is this different the non-hearsay purpose of state-of-mind? a. Hypo: D was robbed. He sees someone run by and identifies him. Is this admissible to state one mind? D is out of court? i. Is D’s state of mind relevant other than to prove the fact that D thought it was the robber? The belief can’t be used *just* to prove belief in the fact stated. This is NOT part of the exception. It’s a statement of memory used to prove this memory. Allowing this would wipe out the hearsay rule b. Wife says “my husband attacked me last week.” Offered to prove her fear of her husband. Hearsay or not? This is circumstantial evidence of her state of mind so it’s not definitionally hearsay c. Wife says “I am afraid of my husband.” Offered to prove her fear of her husband. This is hearsay. Is it admissible? yes, under 803 d. Offered to prove the state of mind which is the truth of the matter asserted 2. Why is this exception in the rules? Are these statements reliable/trustworthy? a. The declarant is an expert on his own feelings and contemporaneous statements are more probative to feelings than later statements i. Not used to prove facts, just used to prove state of mind 3. Adkins v. Brett a. Facts: The action involved in the present appeal is one for damages for the alienation by the defendant of the plaintiff's wife because she wanted a legal separation from the marriage. The cause was tried before a jury, a verdict was returned for the plaintiff, and from the judgment entered upon the verdict the defendant appeals. He must prove the affections were alienated and the defendant caused the alienation 28 b. Question Presented: Are conversations, offered as proof of the wife's mental state, were admissible as an exception to the hearsay rule? c. Evidence: The wife made statements to her friend Tucker that the defendant seduced her against her will. The serious questions in the case arise in connection with the admission of evidence of conversations between the plaintiff and his wife, wherein the latter admitted or stated that she had gone automobile riding with the defendant, had dined with him, had received flowers from him, that he was able to give her a good time and the plaintiff was not, that she intended to continue to accept the defendant's attentions and the plaintiff could do what he pleased about it, and that he was distasteful to her. d. Holding: Yes e. Reasoning: It was not incorrect for the jury to credit Tucker and believe that he heard the statement. One objection to the evidence of these conversations, which may as well be disposed of at the outset as involving the most elementary principles of evidence, is that they were had without the presence of the defendant. The answer to this objection is that it is wholly immaterial whether the defendant was present or not. The competency of evidence of declarations or statements by a person other than the party to the action against whom they are introduced is not affected merely by the latter's presence or absence. If the evidence be not competent if the party against whom it is sought to introduce it was not present when the statements or declarations were made, no more is it competent if he were present. The real objection to such evidence as that under consideration is that it is hearsay. The evidence was plainly relevant, that is, it tended to prove matters in issue, and was, therefore, admissible unless there is some rule of exclusion applicable to it. When the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person's declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule. In the present case the state of the wife's feelings at the time of these conversations, both toward her husband and toward the defendant, was material, and the conversations were indicative of her feelings, and this being so, evidence of them was admissible to show her then state of feelings. Here, the statements had dual relevancy and were too prejudicial i. Permissible: She no longer loved her husband ii. Impermissible: She was riding in the car with the defendant 4. How else could you get these statements in? a. Even if it’s the statement that she went riding in the car isn’t true, she wouldn’t say them if she loved him (like Daddy tried to kill me). Alienation of affection is a state of mind 5. Is the fact that the defendant wasn’t in the presence of the statements? a. Only for adopted admissions b. Effect on the hearer (notice of a defect etc.) c. Otherwise it’s totally irrelevant 6. D said “I believe I am Napoleon” to show insanity. Is this admissible? a. Not hearsay, not offered for its truth but state of mind 7. B deeds farm to S. F and M say the deed is a forgery. a. Evidence: S has evidence that the day before he told wife “I love my niece, not my kids.” Is this hearsay? Yes, the fact that he said this before signing the deed shows his state of mind. This is a reasonable amount of time b. Evidence: He says this after he writes the deed. Still admissible c. Evidence: At a family gathering days later he says “I named Shelby in my deed.” Statement of a fact believed offered to prove the fact. i. It could be circumstantial evidence of the fact that he doesn’t like his kids. Then it wouldn’t be hearsay ii. This could also be a declaration against interest. Giving land away is a classic declaration against interest 8. Mutual Life v. N.Y. [p221] 145 U.S. 285 f. Facts: Ms. Hillmon sued to insurance companies after her husband’s death. Issue was whether the drowned body was her husband or Walters. Insurance company thinks Hillman is committing insurance fraud and is still alive. To show it was Walters, defendants had letter from Walters to his sister that located Walters in the area where the body was found. g. Question Presented: Should these letters be admissible as evidence of state of mind? h. Evidence: The letters Walters wrote to his fiancé and sister. Letters say “I intend to travel to Crooked Creek w/Mr. Hillman.” i. Holding: Upon principle and authority, therefore, we are of opinion that the two letters were competent evidence of the intention of Walters at the time of writing them, which was a 29 material fact bearing upon the question in controversy; and that for the exclusion of these letters, as well as for the undue restriction of the defendants' challenges, the verdicts must be set aside, and a new trial had. j. Reasoning: There was massive confusion over whose body this was. A man's state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. The letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention. In view of the mass of conflicting testimony introduced upon the question whether it was the body of Walters that was found in Hillmon's camp, this evidence might properly influence the jury in determining that question. i. Intent is a state of mind ii. Can a statement of intent show he carried through the intent? Yes. The Supreme Court decided this and it’s not called the Hillmon doctrine iii. What if the statements were backward looking? Then it’s hearsay and not admissive under this exception. Only forward looking statements can be admitted 9. Shepard v. U.S. [p224] 290 U.S. 96 k. Facts: Petitioner was convicted of the murder of his wife by poisoning with bichloride of mercury. l. Question Presented: Was this evidence of state of mind? m. Evidence: The trial court admitted evidence of a conversation between the wife, then ill in bed, and her nurse. The wife asked the nurse to bring a bottle of whisky that would be found upon a shelf, and said that this was the liquor she had taken just before collapsing. She asked whether enough was left to make a test for the presence of poison, insisting that the smell and taste were strange. She then said "Dr. Shepard has poisoned me.” They were admitted as a dying declaration by the lower court n. Holding: No. Homicide may not be imputed to a defendant on the basis of mere suspicions, though they were the suspicions of the dying. To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that were declared. o. Reasoning: Prosecution argued state of mind to rebut defendant’s contention that she was suicidal (if this had been made in the lower court it probably would have been accepted but it wasn’t. Now it wouldn’t be fair to let it in.) There’s no evidence she knew she was dying so dying declaration doesn’t work. Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored. The testimony now questioned faced backward and not forward. This at least it did in its most obvious implications. What is even more important, it spoke to a past act, and more than that, to an act by some one not the speaker. Other tendency, if it had any, was a filament too fine to be disentangled by a jury. 10. Hypos [p227] a. Direct statement of feelings. Hearsay but admissible under exception b. Circumstantial statement of feelings: Not hearsay 11. U.S. v. Pheaster [p228] 544 F.2d 353 p. Facts: Appellants were convicted of conspiring to kidnap a 16-year-old boy for ransom. They were also convicted of depositing letters in the mail containing requests for ransom and threats of injury to the boy. q. Question Presented: Should this evidence come in as state of mind? r. Evidence: Larry’s statement to his friend about what he was going to do that night, that he was going to meet Angelo. s. Holding: yes t. Reasoning: Under the Hillmon doctrine, the state of mind of a declarant is used inferentially to prove other matters which are in issue. Stated simply, the doctrine provides that when the 30 performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act. Within this conceptual framework, hearsay evidence of statements by the person which tend to show his intention is deemed admissible under the state of mind exception. When hearsay evidence concerns a declarant's statement of his intention to do something with another person, the Hillmon doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person. Several objections can be raised against a doctrine that would allow such an inference to be made. One such objection is based on the unreliability of the inference, but is not compelling. A much more significant and troubling objection is based on the inconsistency of such an inference with the state of mind exception. The inference from a statement of present intention that the act intended was in fact performed is nothing more than an inference. Even where no actions by other parties are necessary in order for the intended act to be performed, a myriad of contingencies could intervene to frustrate the fulfillment of the intention. The fact that the cooperation of another party is necessary if the intended act is to be performed adds another important contingency, but the difference is one of degree rather than kind. The possible unreliability of the inference to be drawn from the present intention is a matter going to the weight of the evidence which might be argued to the trier of fact, but it should not be a ground for completely excluding the admittedly relevant evidence. Under Hillman this is admissible and the committee notes endorse the Hillman doctrine i. Declarant’s intent with respect to whether he likes Angelo or not is not relevant to show Angelo kidnapped him. ii. This is the hardest category, some courts won’t allow them in iii. Hypos [p233] -I am going to the parking lot. Other evidence locates Angelo there. This is purely his intent -Angelo is going to the parking lot. This is someone else’s intent, not allowed -“I am going to meet Angelo in the parking lot.” That’s the Pheaster case iv. No bright line for when declarant begins to assert someone else’s intent 12. Hypos [p239] a. (1) This is hearsay but is the exception under 803(3) b. (2) This is hearsay and not allowed because it’s a statement of memory c. (3) This is admissible, it’s irrelevant that the statement is self-serving. Statement doesn’t have to be contemporaneous with the event. As long is the present is the current state of mind “I AM sad” it doesn’t matter how long ago the event occurred (“I was sad”) d. (4) This is hearsay and it’s admissible under the exception e. (5) The deer hunting statement is hearsay but it’s admissible under the Hillman doctrine. The other statement is hearsay but it’s direct evidence and comes in under 803(3) f. (6) Here, the declarant’s state of mind is relevant to the defendant’s self defense. the 2nd half of the statement is relevant, it’s circumstantial evidence of fear and isn’t hearsay. The 2st part of the statement is relevant to her motive. It’s admissible under the Hillman doctrine . Zippo v. Rogers [p234] 216 F.Supp. 670 u. Facts: Plaintiff Zippo Manufacturing Company ('Zippo'), a Pennsylvania corporation, alleges both trademark infringement and unfair competition on the part of defendant Rogers, Inc. ('Rogers'), a New York corporation, by reason of Rogers' sale of pocket lighters closely resembling Zippo's. v. Question Presented: Are these admissible? w. Evidence: Study conducted by experts showing the shape of Zippo lighters doesn’t help customers identify with the brand. x. Holding: Yes y. Reasoning: The answers of respondents to the surveys evidences state of mind. Even if they are hearsay, they’re highly probative and very trustworthy. The surveys are admissible to show secondary meaning for the shape of the lighters and confusion between the brands 31 G. Public records exception 1. Why do we need this if we have as business records exception? a. Ex: Drug records. Police officers allowed to lay the foundation. Business is defined extremely broadly b. Public records exception is for a one time recording, business records exception is for systemic reporting c. If a public official does an investigation and makes findings, the statements don’t have to have happened under a duty to report 2. Three categories of admissible records… a. Activities of the office or agency i. Ex: Employment records, payroll statements, etc. b. Matters observed pursuant to duty imposed by law and duty to report i. Ex: Weather reports, maps, etc. -In a criminal case, police officer’s observations cannot be offered by anyone, even against the government (but courts might turn a blind eye to the plain meaning of the rule) c. Factual findings from an investigation i. Must be trustworthy ii. Can be used only by the defendant against the government iii. Ex: EEOC findings 3. Beech v. Rainey [p284] a. Facts: Plane crash and cause of accident is difficult to determine. Plaintiff alleges a design defect, defendant argues pilot error. Evidence is JAG report including a finding of fact about the plane’s handling b. Question Presented: Should this report have been admitted? c. Holding: Yes d. Reasoning: Prior to this case, there was a split in the circuit. There’s a divide over what exactly “public records and reports” are. Do findings of fact fall into “opinions” or “conclusions”? Factual findings can include conclusions. There’s no evidence that opinions within reports should be excluded, legislation didn’t intend this. Trustworthiness isn’t a distinction between fact and opinion. Opinion within a record isn’t a reason for exclusion. The definition of “factual findings” is held broadly so long as the report is based on factual findings—it can’t just be conclusions or opinions 4. Exclusion for law enforcement personnel investigations in criminal cases a. Legislators worried government would use a police report rather than calling the police officer which means no ability to cross examine b. Hypo: i. Fred accused of robbery. Police officer’s report says Fred was seen fleeing. Is this admissible as a public record? No. Statute says this cannot be admitted against a criminal defendant in a criminal trial ii. What if there’s foundation for this to be admissible as a business record? Now is it admissible? No because of U.S. v. Oates 5. U.S. v. Oates [p290] a. Facts: Drug trafficking. Documents from Customs chemist about his chemical analysis of the white power seized. Chemist was going to testify but then got sick. Another chemist was called to testify about the general methods used in the drug analysis. She wanted to testify from the original chemist’s worksheet that the drug was heroin. There were also differences between copies of exhibits given to defense and presented in court b. Question Presented: Should this report have been admitted? c. Holding: d. Reasoning: Factual findings resulting from a law enforcement investigation should be admitted under the plain meaning of 803(8) and under congressional intent for business records. But the prosecution argues instead that they should come in under a public records exception. To do so would flout the intent of the 3rd part of t