THE EVIDENCE ISSUE SPOTTER Rule 104a-questions about admissibility is for the judge i.e. is the person a qualified expert, did a communication fall under attorney/client privilege (policy is we don’t want jury to hear privileged material), whether something is hearsay or not -judge can look at anything out of the presence of the jury in making this determination as long as it is not privileged Authentication-104b 104b-preliminary questions for the jury-conditional relevance questions 104a judge himself decides whether there was a preponderance of evidence 104b-judge asks whether a reasonable jury could find by a preponderance of evidence, can only consider admissible evidence State v Carlson-wife said that husband had track marks from shooting up heroi, guy shook his head court said that the intent to adopt was a prelim question for the trial judge -court affirmed the lower court and said that the def’s nonverbal reaction was to ambiguous to infer anything from it Judge determines whether person meet foundational requirements for the hearsay exception to be a present sense impression or an excited utterance. Whether judge himself finds it by a preponderance of evidence (104a) 104b-could a reasonable jury find this FRE 104a-Preliminary Questions-judge is not bound by rules of evidence except those with respect to privilege . Rule 104a says that the judge determines “preliminary evidence questions.”-witness competency, privilege, and “admissibility of evidence.” Rule 104b says it is different when “relevancy” turns on “fulfillment of a condition of fact.” Here the judge merely screens the evidence and when different answers are possible the jury decides Character-Character is an “essential element” only when it is an ultimate issue. (Cleghornswittchma known to be intemperate that got in accident-negative entrustment claim) When character is an ultimate issue, it is not being used as evidence of anything else. -Character was an issue in the case. -Character evidence is relevant in libel and defamation cases -Rule 405 (B) provides that “In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct” (emphasis added ****In a criminal case, a def can not stipulate out certain elements of crime. Yet, if a def admits liability in a civil case, then it is no longer an issue and only damages will be decided.**** Cleghorn-intemperance evidence was not allowed to prove that he was drunk on a particular occasion; however, intemperance could be used to show that the employer was aware of the switchman’s dependency Character evidence analysis steps: 1. What is the evidence offered to prove? 2. If offered to prove character, is the particular character trait “in issue” in the case? a. If yes, may prove by any of the 405 methods b. If no, not allowed unless falls under one of the exceptions in 404a 3. Does the evidence fall under any of the exceptions in 404a? 4. If yes (falls under a 404a exception), then may be proved only by reputation or opinion testimony, not by specific acts 5. On cross, prosecutor may inquire about specific acts 6. But prosecutor is bound by the witness’ answer 7. And Rule 403 always applies 404b-we’re not proving character, looks like character but it isn’t, doesn’t trigger 405 404a-if you’re allowed to use character evidence you then trigger rule 405 Rule 405 –only describes how character evidence may be used when it is allowed 404(a)(1)-the accused can use character evidence to prove that they are a law-abiding person, opens the door, prosecutor can provide rebuttal 404(a)(2)-accused can offer a pertinent character trait of the victim-opens the door to character evidence, prosecution can rebut 404(a)(3)-character of witnesses for truthfulness Subsequent Remedial Measures-Rule 407: evidence of subsequent measures can’t be used to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for an earning or instruction. Social policy: encourage people to fix things if there is something wrong with them This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or another purpose, control, or feasibility of precautionary measures if controverted, or impeachment. FRE 404b Other crimes, wrongs or acts-used in civil and criminal cases, but mostly in criminal Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action inconformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (specific instances may be used-sometimes might look like character evidence but is not), provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. **The 404b list is not exhaustive. Mnemonic device: Knowledge Intent Preparation Plan Opportunity Motive Identity Absence of mistake or accident **FRE 404b which applies in both civil and criminal cases-generally prohibits the intro of evidence of extrinsic acts that might adversely reflect on the actor’s character, unless that evidence bears upon a relevant issue on the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth and to a disputed case, especially when that issue involves the actor’s state of mind and the only means of ascertaining the mental state is by drawing inferences from conduct. Perrin v Anderson, 1986 Rule 406-habit of a person or organization can be proved in anyway, includes specific acts, testimony, etc. -factors to decide whether is habit or character: specific responses to specific situations-most likely habit (going down the stairs two steps at time) -regularity of the response, unconsciousness element -habit evidence don’t have the moral overtones that the character evidence -habit is highly probative The court has defined “habit” as a “regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.” (Not exceptions, but are non-hearsay purposes) Effect on Hearer Subramaniam (not to prove the state of mind of the terrorists, but the feelings of the def) Sponge count hypo Vineyard Circumstantial evidence of declarant’s som -child custody hypo (“daddy tried to kill me”) Legally Operative Language -widget offer hypo -Ries Performative conduct (verbal act) -Estate of Murdock (“I am alive”) Questions in Hearsay Analysis: 1. Is it a “statement?” a. Is it a verbal or written assertion? OR b. Is it conduct intended as an assertion? 2. Who is the declarant? a. Is the declarant out of court? b. If the declarant is in court, was the statement made in court at the current trial Implied Assertions (person does not intend to assert what is implied-not hearsay) McCormick Excerpt-three categories of cases 1. Pure action with no element of communication 2. Action together with words 3. Words only, but words not of assertion but of action Sincerity is important-don’t have to worry about sincerity if the declarant did not intend to take the action Distinction between 803 and 804 803-availability of declarant is immaterial 804-declarant must be unavailable 804a-being unavailable: 1) privilege 2) refusing to testify 3) lack of memory 4) death or then existing physical or mental illness 5) unable to procure the declarant’s attendance…by process or other reasonable means Important points about 803(1) & 803(2) Present sense impression exception requires that the statement be “describing or explaining” the event or condition, whereas excited utterance exception only requires that the statement “relat[e] to the startling event or condition. -Present sense impression-the statement must be made while the declarant was perceiving the event or condition, or immediately thereafter. -Excited utterance-statement must have been made “while the declarant was under the stress of excitement caused by” the event or condition. Four testimonial infirmities -Sincerity -Memory -Perception -Ambiguity “ ‘a conspiracy is like a train, ‘ and ‘when a party steps aboard, he is part of the crew., and assumes conspirator’s responsibility for the existing freight…” -U.S. v Goldberg DIRECT STATE OF MIND *****Hilmon doctrine : intent is a direct state of mind 803(3), and can be used to prove that he most likely carried out that som. “I plan, I’m going to…-think of Hillmon doctrine).Must be a forward looking statement Zippo-The surveys were admissible because the answers of the surveyors are expressions of their present existing state of mind-hearsay, but admissible under 803(3)-we’re not trying to prove the fact believed (whether the belief was true), but the belief itself BUSINESS RECORDS p. 269 Potamkin Cadillac-the computer records were inadmissible because the records were not made in the regular course of business, the records were generated in the anticipation of litigation p. 270 Palmer v Hoffman-(may only be restricted to people that provide the records who have motivation of having it admitted, report was prepared by engineer involve din the accident-trustworthy concern) seminal case, concerned computerized records that are made in the anticipation of litigation -accident records were kept in the regular course of business -Court did not admit the records because it is not the business of the railroad to make accident reports, similar to Williams TODAY, courts do consider accident reports to be part of the business records. Yates v Bair Transport p. 275 -some records were allowed in, others were not -hospital records of the defense are admitted, but when the plaintiffs’ doctors provided the reports, they could not be admitted due to the trustworthy concern If there is hearsay within hearsay, let’s say that the outer hearsay –the business records contain a hearsay statement, if the business records can’t come in, then the hearsay statement found within the business record can not come in. However, the person making the hearsay statement could testify as to what they had said in the business record*****. Who must have personal knowledge? The person who provided the info must have personal knowledge, not the person who wrote the info or the person who authenticated it PUBLIC RECORDS OATES-records not admissible under the public records can not be admissible under the business records Conclusion: The court denied admitting Weinberg’s exhibits under the public records exception 803(8) because the full time chemists of the US Customs Service were considered law enforcement personnel, whose info is banned by this provision. Also, the record was inadmissible under the business exception rule of 803(6) because of the trustworthy component. There were redactions found on one copy of the record and not on the other, and a signature on the original but not on the copies. Because of the lack of trustworthiness, the Court found Weinberg’s record to be inadmissible. GRADY-(BOTH 2ND CIR) officers were not investigating a crime, just performing a ministerial function Police officer’s parking ticket-would be allowed under 803(8) because not exactly a police observation, performing routine. minsterial functions, police lacks incentive to be untrustworthy because he does not know if it is going to be used in court 807: Residual Exception-applies to situations where you have very necessary and reliable hearsay Requirements: 1) circumstantial guarantee of trustworthiness 2)offered as evidence of a material fact-what does this add to relevance requirement of FRE 402? 3)more probative on the point than other evidence-reasonably probative 4) interests of justice and general purposes of rules served by admissionwhha does this add to FRE 102 5) Notice -Particulars of statement -in advance of trial-fair opportunity to meet -name and address of declarant Grand jury testimony is an area where the use if the residual exception is common Grand Jury Testimony: Review of requirements of 804(b)(1): -Declarant available -Former testimony (i.e. under the oath) -party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony Review of Salerno holding: Involved issue whether grand jury testimony could be offered by the def against the gov’t -2nd Cir held that similar motive requirement of 804b1 did not apply -SC held that all requirements of the rule must be applied, and remanded to allow the 2nd Cir to decide the use of whether the gov’t had a similar motive to develop the grand testimony When evidence is a “near miss” (near miss theory) it shouldn’t come in under the residual exception.-created by Judge Becker, there is a split in the circs regarding this, but most courts have denied the theory. Crawford rule-witness is unavailable and the party had Scalia said it is a bright line rule Ohio v Roberts (1980) General Confrontation Clause test: 1. “rule of necessity”-in most cases, the prosecutor must either produce or demonstrate the unavailabilty of the declarant 2. Trustworthiness showing-either: “firmly rooted” exception, or “particularized guarantees of trustworthiness”-this particular statement has guarantees of trustworthiness Crawford v. Washington -announces a new rule for the Confrontation Clause, evidence must be testimonial, unavailability and a prior opportunity to cross-examine -we get reliability through confrontation, we can’t substitute our own definition of reliability -police interrogation is testimonial -there was the marital privilege so the wife was not required to testify -Scalia says that you lose the reliability of the evidence when a def is unable to cross examine a witness -if it is not testimonial, a 911 call is admissible hearsay under excited utterance and she would not be required to come to court -ex parte in court statements, an affidavit are testimonial People v. Moscat -the court focuses on the victim, when a person makes a ‘911’ call they are not expecting it to be used in criminal proceedings, they are simply trying to save their life at the time. -gov’t is responding to cry for help, so it its not like an interrogation which the gov’t is prompting 1. Competency: who may testify and what conditions must be satisfied in order for them to testify? -FRE 601-competency-every one can be a witness except judges and jurors in a particular case 602-personal knowledge-conditional relevance issue for the jury 104b 603-oath or affirmation 604-interpreters 605-competency of judge as witness 606-competency of jurors as witnesses-judge makes decision under 104a Mental disability-could the witness communicate with the jury and understand the taking of oath, a case by case determination State ex rel Collins v Superior Court-once witness is hypnotized he is tainted and can not testify, but it could be used as an investigative tool, and the witness can testify as to what they could retell prior to hypnosis The Five Possible Methods of Impeachment: 1. Contradicting the witness-“counterproof” 2. Showing that the witness has made prior inconsistent statements. 3. Showing defect in sensory or mental capacity 4. Showing bias that might lead the witness to fabricate 5. Showing that the witness is by disposition untruthful (a) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. “A leading question is one that suggests to the witness the answer desired by the examiner.” “Isn’t it true that….” “Don’t you agree that….” “…, didn’t you?” Most “yes or no” questions IMPEACHMENT The Five Possible Methods of Impeachment: 6. Contradicting the witness-“counterproof” 7. Showing that the witness has made prior inconsistent statements. 8. Showing defect in sensory or mental capacity 9. Showing bias that might lead the witness to fabricate 10. Showing that the witness is by disposition untruthful Impeachment with prior inconsistent statements-how does this impeach? -General: witness “blows hot and cold” -Specific: prior statement was true and current testimony is false The “collateral matters” rule (State v Oswalt)-what kind of evidence you’re allowed to use to impeach Rule: a witness can not be impeached, by extrinsic evidence, upon matters collateral to the principal issues bring tried. IS the collateral matters rule a part of modern federal evidence law? What is “extrinsic evidence?” Something other than what is coming out of the person’s mouth -we shouldn’t have a mini-trial over collateral issues, which are not directly at hand -main rationale of the collateral matters rule is waste of time Notes: A typical list of factors to be considered in deciding whether to exclude a prior conviction offered to impeach the accused is set forth in U.S. v Sloman, 6th Cir. 1990 The factors listed are: 1) The impeachment value of the prior crime 2) The point in time of the conviction and the witness’ subsequent history 3) The similarity between the past crime and the charged crime 4) The importance if the def’s testimony 5) The centrality of the credibility issue U.S. v Abel S.C. 1984 p.566 Can extrinsic evidence be admitted to show bias? You can always use extrinsic evidence could always be used to show bias. The credibility of a witness (directly related to bias) is never a collateral issue. Expert testimony 704: Opinion on Ultimate Issue (Scop and Odem cases) -Ultimate issue rule is to determine Scop was purposely manipulating his language by usurping the language of the judge (appeared to be giving meaning to legal terms, jury instructions) and jury (weighing the credibility of the facts) -705: Disclosure of Facts or Data Underlying Expert Opinion (you don’t have to have a hypothetical, on cross the expert witness can explain the facts underlying his opinion) The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event GA has the Harper test-whether the technique or procedure has verifiable certainty or rests upon the law of nature In general, Daubert usually prevents less from coming in. Usually, Harper allow more to come in. Factors that Daubert indicates might bear on a judge’s gate-keeping determination for expert testimony reliability: -theory or technique can or has been tested -has been subjected to peer review -is there a high know potential rate of error and are there standards controlling the technique’s operation The Advisory Committee lists other factors: was method/conclusion developed expressly for the purpose of the litigation?, Has the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion? (Joiner), has the expert accounted for obvious alternative explanations?, Is level of care same as expert would use for regular professional work outside the litigation context?, is expert’s claimed filed known to reach reliable results for this type of opinion? -whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.” **Daubert made clear that its list of factors are helpful, not definitive** There may be cases where a scientific claim has never been subject to peer review because of lack of interest, or maybe the claims may be supported by the general community but the discipline itself is unreliable (such astrology or necromancy). Polygraph -The Court decided to adopt the Daubert standard, but held that any possible probative value on a polygraph test is substantially outweighed by its prejudicial effects. Piccinonna-11th Circ--The court said that the science of polygraphy has progressed to a level of acceptance sufficient to allow its use when the danger of unfair prejudice is minimized. ARBPHU What we need…. A= authentication-threshold showing that for example that this gun was used on the day of the crime R=Relevance B= best evidence Can’t have… P=privileged H= Hearsay U= unduly/unfairly prejudicial (403) Attorney-Client privilege Upjohn--**Attorney-client privilege only protects disclosure of communications, it does not protect disclosure of the underlying facts by those who communicated with the attorney. A fact is one thing and a communication concerning that fact is an entirely different thing. Differences between work product protection and attorney client privilege p. 585 1) Material that is covered by the attorney-client privilege can not be discoverable even if the opponent demonstrates that she has a special need for the material to prepare her case. Material that is covered only by work product protection can be discovered upon such a showing, at least if it does not reveal the mental impressions of the party’s attorney or other rep. 2) The attorney-client privilege applies only to confidential communications between the attorney (or attorney’s rep) and the client (or client’s rep). A much larger category of material is covered by the work product protection. For example, statements to an attorney by a witness who is not a client are covered. For that matter, an attorney need not be involved at all for the work product protection to take effect. For example, info gathered by the party or the party’s agent (such as a claim adjuster) are covered by work product doctrine so long as the info is gathered in anticipation of litigation, even if no attorney had been retained at the time of the info-gathering. 3) The work product protection applies only to info gathered in anticipation of litigation. The attorney-client privilege covers confidential communications to the lawyer seeking legal advice or services, whether or not litigation is expected. Clark v state--The court held that the attorney and Cox’s conversation was not privileged because it was not in the realm of legitimate professional counsel and employment. Court said that the accused was not seeking legitimate advice from his attorney in preparing his legal defense. (crime fraud exception-does not refer to past crimes, the client was not seeking legitimate legal advice) -Because Cox followed the lawyer’s advice and got rid of the weapon, then the crime-fraud exception comes into effect Menendez v Superior Court-**The dangerous patient exception requires only reasonable cause for belief by the psychotherapist in the dangerousness of the patient and the necessity of the disclosure to address that danger. “The protective privilege ends where the public peril begins.” Some exceptions If a spouse is charged with a crime against the spouse or child, the marital privilege does not exist -preparing future crimes is not covered by the marital privilege Authentication FRE 901 Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent -chain of custody-accounting for where the evidence is from discovery to the time of trial 104b judge-is there sufficient evidence that a reasonable jury would find what the proponent says it is. Final points about authentication: Authentication of handwriting: 901(b)(2): nonexpert opinion on handwriting (but must be based upon familiarity Reply letter doctrine BURDENS Burden of proof-umbrella term generally used to encompass two distinct burdens: Burden of production-the burden of producing sufficient evidence to permit a reasonable jury to decide in the party’s favor on the disputed list Burden of persuasion-once the case goes to the jury, the burden of convincing the jury to accept its position on the disputed factual issue. Presumption-a rule providing that proof of a designated fact has a predetermined effect in establishing the existence of another fact. Basic fact-the fact that triggers the presumption Presumed fact-the fact triggered by the finding of the basic fact Main theories regarding presumptions: Thayer/Wigmore “bursting bubble theory”-embodied in 301