Law School Outline - Evidence Outline 1- Emory Law

EVIDENCE OUTLINE - SEAMAN FALL 2003 I. INTRODUCTION A. FRE 101. Scope. The rules govern proceedings in federal criminal and civil proceedings. Note that there are some rules that distinguish between criminal and civil proceedings. B. FRE 102. Purpose and Construction. The key purpose of the rules is “fairness, truth, and justly determined.” C. ANGLO-AMERICAN SYSTEM VS. CONTINENTAL SYSTEM II. RELEVANCE - ARTICLE IV A. INTRODUCTION 1. You cannot determine whether evidence is relevant without knowing what it is intended to prove. The substantive theory of the case will determine whether evidence is relevant. B. Rule 401 – RELEVANT EVIDENCE: evidence having any tendency to make the existence any fact that is of consequence to determination of the action more or less probable than it would be without the evidence. 1. “Any tendency” – to be relevant evidence does not have to prove the case. 2. “Of consequence” (materiality) – o be material the evidence must be offered to prove a properly provable issue in the case. 3. Questions to ask in determining relevancy under FRE 401: a. What is the evidence sought to be admitted? b. What fact is the evidence sought to prove? c. Does is tend to make the fact “more probable or less probable than it would be without the evidence”? d. Is the fact “of consequence to determination of the action”? i. What is the ultimate issue to be proven? ii. Is it properly provable under the substantive law and the pleadings in the case? 4. Rule 401 has a very low threshold and favors admissibility; as long as there is a nexus between the inferences, the evidence is relevant. a. The more inferences that you have to make, the weaker the link between the evidence and an issue, the less probative the value, and thus, the less likely that it is to be admitted (but it still may). i. Evidence with contradictory inferences is not irrelevant as long as one possible inference is relevant. b. Once the threshold of relevance is passed, the weight of the evidence becomes the issue (Rule 403) and not its admissibility. C. Direct vs. Circumstantial Evidence 1 1. Direct evidence: Evidence, which accepted as genuine or believed to be true, necessarily establishes the point for which it is offered. Direct evidence is usually accepted into evidence without any problems. 2. Circumstantial evidence: Evidence which, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so. Circumstantial evidence is generally more difficult to get into evidence and requires an evidentiary hypothesis. D. Rule 402 – All relevant evidence is admissible and all non-relevant evidence is not admissible. E. Rule 403 Balancing Test 1. Rule 403 – Exclusion of Relevant Evidence – Although relevant, relevant evidence may be precluded if its probative value is substantially outweighed by the danger of unfair prejudice , confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. a) “Probative value” – the judge must take the evidence as “true” in the determination of probative value. b) “Unfair prejudice” – evidence which will deflect the jury from actually deciding the case on its factual merits and will lead the jury to make its decision on unfair considerations that do not relate to the issues of the case (i.e. emotions). Evidence is not necessarily “unfair” merely because it hurts your case. 2. Rule 403 favors the admission of evidence. If the probative value is equal to the prejudicial effect then the evidence will be admitted. 3. Old Chief v. U.S. (S. Ct.): Although evidence of the defendant‟s prior conviction was relevant, the details and name of the conviction are not admissible because the jury may consider them for an improper purpose. a. In the criminal context, unfair prejudice means an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” i. The evidence would have created an impermissible propensity inference (see Rule 404). b. The prosecution generally has the right to prove its case in any way that it chooses, however, Rule 403 requires the judge to examine all of the evidence and determine how badly a particular piece of evidence is needed. 4. The standard of review for an evidentiary ruling is abuse of discretion (very deferential to the lower court). F. Who decides questions of relevance – the judge or the jury? 1. Rule 104(a) – the JUDGE decides general questions of admissibility. In making this determination, the judge is not bound by the rules of evidence except with respect to privileges. 2. Rule 104(b) – the JURY decides issues of conditional relevance. 2 3. Relevancy conditioned on fact – Rule 104(b) – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. a. A judge may conditionally admit proffered evidence (which may have otherwise been inadmissible) subject to later proof of foundational facts. i. The standard of proof for conditional relevance is that a reasonable jury could find, by a preponderance of the evidence, that the conditional fact exists. ii. If the preliminary fact is true then the conditional fact is for the jury. iii. If the proffering counsel fails to fulfill the terms of the conditional admission, the opposing counsel should file a motion to strike the conditionally admitted evidence. G. Character Evidence – Rules 404 & 405 1. Propensity evidence is generally prohibited (by Rule 404) for a number of reasons: a. The jury might give too much weight to the evidence. b. The jury might punish the defendant for prior bad acts or bad character. c. The jury might dilute the prosecution‟s burden. d. The jury might not realize that the defendant came under suspicion because of the prior crimes. 2. Rule 404(a) – “Evidence of a person‟s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” There are three exceptions: a. Rule 404(a)(1): Character of the accused. [criminal context] The accused may offer evidence of a pertinent character trait (i.e. his good character) and the prosecution may rebut the same. i. Note that in both of these exceptions, the accused must first proffer the character evidence (i.e. the prosecution cannot initially proffer such evidence). ii. BUT, once the accused offers such evidence he opens the door for the prosecution to offer the same. iii. On cross-examination, the prosecution may inquire into relevant specific instances of conduct. b. Rule 404(a)(2): Character of the victim. [criminal context] The accused may offer evidence of a pertinent character trait of the victim (i.e. the victim‟s violent nature) and the prosecution may rebut the same. i. For example, the accused may offer evidence of the victim‟s violent nature to prove that the victim was the aggressor in a fight. The prosecution may then offer evidence of the victim‟s peaceful nature. c. Rule 404(a)(3): Character of the witness. [civil or criminal] see pg. 3. Three types of character evidence [Rule 405]: a. Opinion Evidence: One or more persons may offer their personal opinion (based on observation) as to the person‟s character for honesty or some other trait. 3 i. The attorney must set a foundation that the witness is familiar with the individual in question. b. Reputation Evidence: Testimony as to a person‟s “general reputation” in the community may be given, whether the witness actually knows the person in question or not. i. The attorney must set a foundation that the individual in question has a reputation and the witness knows of it. c. Specific Acts: Evidence may be given of specific acts that a person has done which would lead to inferences of character. i. Specific acts evidence is allowed only when character is “in issue.” [Rule 405(b)] 4. Character in ISSUE ( direct evidence) – a person‟s character may itself be an issue (negligent entrustment, libel or defamation, damages). a. When character is the ultimate issue, character evidence may be based upon a witness‟s personal opinion, reputation or specific acts (Rule 405(b)). b. Cleghorn v. N.Y. Central and Hudson River Railway Co. 5. Though character may itself not be an issue, character evidence may still be used as circumstantial evidence from which an inference can be drawn as to the existence or non-existence of some fact which is in issue. – ask Seaman question. 6. Character as circumstantial evidence. Generally Rule under Rule 404(a) – cannot use character evidence to prove “action in conformity therewith on a particular occasion” (i.e. propensity). Therefore, the initial inquiry is what is the evidence offered to prove? a. If the evidence is offered to prove character in order to prove propensity then it is inadmissible under Rule 404(a) unless it falls under one of the three exceptions (see below). b. If the evidence is offered circumstantially to prove action in conformity on a particular occasion under a 404(a) exception, this may be introduced via opinion or reputation evidence only. i. The accused cannot offer specific acts evidence to prove a character trait when such evidence is offered circumstantially. 7. What if the accused offers character evidence under 404(a)(1) or (a)(2)? a. Prosecution can cross-examine the character witness about specific acts relevant to the character trait. b. BUT the prosecution is “bound by the witness‟s answer.” c. Prosecution may also offer its own character witnesses to testify as to the defendant‟s bad character. d. If character evidence is admissible for one purpose but inadmissible for another, the opposing party is entitled to a limiting instruction under Rule 105 – Limited Admissibility: When evidence which is admissible to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 4 i. ii. Note that counsel will often not ask for a limiting instruction because it calls extra attention to the evidence at issue. The judge will not give a limiting instruction sua sponte (independently) unless it would be reversible error not to. 8. FRE 404(a) Character Evidence Analysis: a. What is the evidence offered to prove? b. If offered to prove character, is the particular character trait “in issue” in the case? i. If YES, the character evidence may be proved by any of the Rule 405 methods: personal opinion, reputation or specific acts. ii. If NO, the character evidence is inadmissible unless it falls under one of the exceptions in Rule 404(a). c. Does the evidence fall under one of the exceptions in 404(a)? 1) Is it the character of the accused, offered by the accused? 2) Is it the character of the victim, offered by the accused? 3) Is it the character of the witness for truthfulness? d. If it falls under a Rule 404(a) exception, then the character evidence may be proved by reputation or opinion testimony, but not by specific acts. e. On cross-examination, the prosecutor may ask about specific acts. f. BUT, the prosecutor is bound by the witness‟s answer. g. Rule 403 balancing test also applies. 9. Rule 404(b) – Other crimes, wrongs or acts: Evidence of other crimes, wrongs or acts cannot be offered for propensity purposes. Such evidence may however be admissible for other purposes such as: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request of the accused, the prosecution in a criminal case provides reasonable notice of the general nature of such evidence in advance of trial (or during trial is the court excuses for good cause shown). a. KIPPOMIA i. Knowledge, Intent, Preparation, Plan, Opportunity, Motive, Identity, Absence of mistake or accident. b. The list of admissible purposes is not exhaustive (“such as”). i. Modus operandi: handiwork ii. Res gestae: same transaction c. The rule applies in both civil and criminal cases. The party seeking to admit such evidence must articulate a permissible reason why the evidence is necessary. d. Such evidence is still admissible even if the individual was acquitted of the prior crime (note that Rule 403 balancing test is still available). e. The rule applies to both acts prior to and subsequent to the charged crime. f. Identity evidence – the identity exception is limited in scope and does not allow admission of extrinsic acts that are merely similar, but only those that have such a high degree of similarity as to mark the specific offense as the handiwork of the accused. i. U.S. v. Carillo – packaging drugs in balloons for sale is not considered “handiwork” because it is not unique or uncommon. 5 g. Pattern evidence – “pattern” refers to a series of acts that collectively identify the offender. The existence of a pattern alone is insufficient to permit admission of pattern evidence – the pattern must show identity, intent, plan, absence of mistake, etc. to make the evidence admissible. i. U.S. v. Beasley – the temporal proximity and similarity of the acts is imperative to the admission of pattern evidence. Where the acts are merely related to the crime charged, but are dissimilar, such evidence may not be admitted as pattern evidence. h. Some crimes are themselves a character trait like pyromaniac, child molester or drug addict. Evidence of the act itself is a character trait and this sort of blends into the propensity evidence that the rule doesn‟t allow. i. Another example is if the defendant is charged with a crime that requires that he acted “knowingly,” evidence of a prior conviction for the same crime could prove such knowledge. j. Prosecutors try and take advantage of this rule all the time because it is the only way to admit character evidence if the defendant doesn‟t open the door. The advantage of FRE 404(b) is that the prosecution doesn‟t have to wait for the defendant to open the door. 10. FRE 404(b) Crimes, Wrongs or Acts Analysis [under Huddleston v. U.S.]: a. Threshold inquiry: Is the evidence probative of a material fact other than character? [see FRE‟s 401, 402, 404(b)] b. Is there sufficient evidence that a reasonable jury could find that the other crime, wrong or act occurred? [FRE 104(b)] i. Under Tucker v. State (Nevada): the trial court must find that the defendant did the prior act by clear and convincing evidence. ii. Under Huddleston v. U.S. (S. Ct.): the district court must find that there is sufficient evidence to permit a reasonable jury to find that the defendant did the prior act. c. Does the potential for unfair prejudice substantially outweigh the probative value? [FRE 403] d. Provide a limiting instruction if requested. [FRE 105] 11. Before the judge allows admissible character evidence, he must conduct a 403 balancing test. The judge must consider the following factors: a. Probative force of the evidence; b. How badly the party needs the evidence; c. Availability of less prejudicial proof; d. Sufficiency of the evidence; e. How inflammatory the evidence is; f. Whether the evidence is disputed; g. Whether the judge can give an effective limiting instruction; h. How the evidence will affect the length of the proceeding; and i. Similarity of the prior wrong to the charged offense. 6 Rule H. Habit Evidence [Rule 406]: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or the organization on a particular occasion was in conformity with the habit or routine practice. 1. A habit is a regular practice of meeting a particular kind of situation with a certain type of conduct or reflex behavior in a specific set of circumstances. This is a narrow range of highly probative traits, namely automatic, invariable patterns of behavior. 2. A habit is specific whereas character is general. 3. A habit tends to be a mechanical, involuntary reaction. 4. Both the stimulus and the response must be specific in order to show habit. The more specific the stimulus and the behavior the more likely it will be considered habit. 5. This acts as the general exception to propensity evidence. I. Extrinsic Reasons that Evidence may be Excluded: There are classes of evidence that may be excluded for various policy reasons [Rules 407-411]: 1. Rule 407 – Subsequent Remedial Measures: When, after an event that causes injury or harm, measures are taken that if taken previously may have made the injury or harm less likely to occur evidence of the subsequent remedial measures are not admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s design, or a need for a warning or instruction. Evidence of subsequent remedial measures are admissible when offered for another purpose, such as (1) proving ownership, (2) control or (3) feasibility of precautionary measures, if controverted, or (4) impeachment. a. Meaning of “feasibility” – when is it controverted: i. Narrow definition: evidence is inadmissible unless the defendant contends that “the measures were not physically, technologically, or economically possible under the circumstances then pertaining.” ii. Broad definition: “feasible” means “more then that which is merely possible, but includes that which is capable of being utilized successfully.” 2. Rule 408 – Compromise and Offers to Compromise. a. Evidence of conduct or statements made in compromise or settlement negotiations is not admissible. The exclusionary rule applies only to real offers to compromise or statements made in the course thereof. i. In Davidson v. Prince, plaintiff‟s letter that reviewed the facts of the incident and demanded full payment was not an offer to compromise and was therefore admissible. b. The rationale of the rule is to encourage parties to settle their disputes out-ofcourt. 3. Rule 409 – Payment of Medical or Similar Expenses. a. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. 7 4. Rule 410 – Inadmissibility of Pleas, Offers of Pleas, Plea Discussions and Related Statements. a. A (1) withdrawn guilty plea; (2) plea of nolo contendere; (3) any statement made in the course of any proceedings under Fed. R. Crim. P. 11 or comparable state rules; or (4) statements made in course of plea discussions with a prosecuting attorney which do not result in guilty plea or in a withdrawn guilty plea are generally NOT admissible against the defendant who made the plea. b. The statement is admissible if (1) another statement made in the course of the same plea discussions is introduced and it is necessary to consider the statement, or (2) in a criminal proceeding for perjury, as long as the statement was made under oath in presence of counsel and on the record. 5. Rule 411 – Liability Insurance: Evidence that a person was or was not insured against liability is NOT admissible upon the issue of whether the person acted negligently or otherwise wrongfully. a. Evidence is admissible if used for another purpose on such issues as proof of agency, ownership, or control, or bias or prejudice of a witness. b. In a case for punitive damages, the existence of insurance may be admissible so jury can decide damages. J. Rule 412 – Prior Sexual Activity of Alleged Victim [Rape Shield Laws] 1. All states have some sort of Rape Shield Laws. Reputation or opinion evidence is not allowed. Use of specific acts is allowed in special circumstances. 2. Generally, the following evidence is not admissible in any criminal or civil proceeding involving alleged sexual misconduct [412(a)(1) & (2)]: a. Evidence offered to prove that an alleged victim engaged in other sexual behavior. b. Evidence offered to prove an alleged victim‟s sexual predisposition. i. Note that the issue of a victim‟s dress is a point of conflict. In Meritor Savings Bank, the Supreme Court said that the issue of the victim‟s dress and manner are relevant in cases of sexual harassment. It is unclear whether this extends to other instances of sexual misconduct as Rule 412 would seem to prohibit such evidence. 3. Exceptions to the rule [412(b)(1)]: a. In a criminal case, the following evidence is admissible if otherwise admissible under the rules of evidence: i. Evidence of specific instances of sexual behavior by the alleged victim to prove that someone other than the accused was to source of semen, injury or other physical evidence [412(b)(1)(A)]; ii. Evidence of specific instances of sexual behavior between the alleged victim and the accused offered by the defendant to prove consent or by the prosecution [412(b)(1)(B)]; Evidence which if excluded would violate the constitutional rights of the defendant [412(b)(1)(C)]. iii. 8 b. In a civil case, evidence of the sexual behavior or sexual predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim‟s reputation is admissible only if it has been placed in controversy by the alleged victim [412(b)(2)]. 4. Procedure to determine admissibility: a. A party intending to offer such evidence must file a written motion at least 14 days before trial describing the evidence and its purpose and serve the motion on all parties and notify the alleged victim or the alleged victim‟s guardian or representative [412(c)(1)(a)&(b)]. b. Before admitting the evidence, the court must conduct an in camera hearing and afford the victim and the parties a right to be heard. The motion and related papers must remain under seal [412(c)(1)(C)]. K. Rules 413, 414 & 415 – Other Sexual Crimes and Acts 1. Rule 413, 414 & 415 were very controversial and the Supreme Court advocated against their admission. The reason behind their enactment by Congress was to provide a model for the states – note that most states have not enacted these rules. 2. Rule 413 – Evidence of Similar Crimes in Sexual Assault Cases a. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant‟s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. b. Notice Provision: If the prosecution wishes to produce such evidence under the rule, it must disclose the evidence to the defendant at least 15 days before the trial (unless good cause shown). c. The rule also defines sexual assault. 3. Rule 414 – Evidence of Similar Crimes in Child Molestation Cases a. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant‟s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. b. Same notice provision as in Rule 413. c. Child is someone under age 14. The rule also defines child molestation. 4. Rule 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation a. In a civil case in which a claim for damages or other relief is predicated on a party‟s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party‟s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. b. Same notice provision as in Rule 413. 9 5. Note that Rules 412-415 trump Rule 404. Thus, if evidence could be admitted under Rule 404 but is excluded by one of these rules, the evidence is not admissible. III. HEARSAY – ARTICLE VIII A. Definition of Hearsay [FRE 801(c)]: “Hearsay” is a statement, made by an out-ofcourt declarant, offered in evidence to prove the truth of the matter asserted.  A hearsay “statement” may be any one of the following [FRE 801(a)]: 1. Oral statements 2. Documents 3. Assertive Conduct a. The key is to the definition of “statement” is that nothing is an assertion unless intended to be one. A “declarant” is a person who makes a statement.  B. Rationale – The hearsay rule reflects concerns about the trustworthiness of hearsay evidence.  The reliability of such evidence is questionable because:  It was not given under oath;  It was not given where the fact finder could observe the declarant‟s demeanor; and  It was not subject to cross-examination by opposing counsel to test the perception, memory, veracity, and articulateness of the out-of-court declarant or actor.  Hearsay protects the values of: a. Confrontation (6th Amendment rights in a criminal case) b. Oath c. Cross-examination C. Basic Hearsay Analysis  Is it a “statement”? a. Is it a verbal or written assertion? b. Is it conduct intended as an assertion?  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 or hearing?  *What is the statement offered to prove? 1. If it is offered to prove the truth of the matter asserted = hearsay. 2. If it is offered for some other purpose = not hearsay. D. Not Hearsay – If the truth of the matter of the declarant‟s statement is not the issue, there is no hearsay problem.  Typical examples of non-hearsay purposes: 1. Verbal act / performance utterance not intended as assertion 10 i. “I‟m still alive.” This evidence is not offered for the truth of the statement, but rather for the fact that it was made. The content of the statement doesn‟t matter – just that the person spoke.  The issue was whether the man was alive – the point is that dead men do not talk – the actual content of the statement is irrelevant. 2. Effect of the statement on the hearer i. The evidence is not offered for the truth of the statement but rather to show the effect on the hearer. ii. Evidence of statements made to a particular person may be offered to show his state of mind in the sense that he had notice, knowledge, motive, good faith, duress, probable cause, or that he had acquired information that had a bearing on his subsequent conduct.  “Terrorists said they were going to kill me.” It doesn‟t matter whether or not the terrorists were going to kill him, rather, the statement is offered to show that the listener thought he was going to die – offered to show duress. 3. Used to show declarant‟s state of mind i. If the declarant directly states what their state of mind is then that is hearsay.  In Fun-Damental Too, Ltd. v. Gemmy Industries Corp., plaintiff sought to prove consumer confusion over the two products. The customer statement “I‟m confused” is hearsay. The customer statement “Why did you sell the product at a lower price” (to illustrate customer confusion) is not hearsay. ii. Note that the hearsay evidence to illustrate the state of mind of a witness is not admissible if the state of mind of the witness is not at issue. 4. Legally operative language i. When the issue revolves around words that are legally significant in and of themselves, evidence of the words is admissible. ii. The words are not offered for the truth of the matter asserted but beacause they are legally operative language. iii. The credibility of the declarant does not matter and the credibility of the witness may be challenged in court. iv. It doesn‟t matter if the declarant‟s statement “I will guarantee a loan” is true or not – it is relevant to show that the witness believed it. 5. Statements about a person‟s reputation may not be hearsay. 6. Use of prior inconsistent statements, made out of court by a witness, will not be hearsay when used to impeach a witness‟s present testimony (not showing prior out-of-court statement but rather attempting to raise questions about a witness‟s credibility). E. Implied Assertions are conduct or words that imply something about the state of mind or belief of the declarant. 11  Under Rule 801(a), the declarant must intend the assertion in order for the conduct to be considered hearsay. a. Under the Common Law, implied assertions were not hearsay but were not admissible for policy reasons. b. *Under the FRE, evidence of conduct, verbal or nonverbal, that is not intended as an assertion, is not hearsay and is therefore admissible. Examples of non-assertive conduct: a. The witness states that he saw a person using an umbrella. The person with the umbrella is not intending to assert that it is raining = not hearsay. b. A ship captain brings his family on board a boat. The ship captain is not intending to assert that the boat is safe = not hearsay. c. *Note that intentional assertive conduct is hearsay. For instance, the act of pointing to identify a suspect in a line-up, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. [ACN Rule 801(a)] Examples of non-assertive words: a. U.S. v. Zenni – the statements of callers to a residence who gave directions for placing bets were not hearsay because they were offered for the implied assertion that bets could be made at the premises called. The callers did not intend to make an assertion when they spoke. Words can be assertive but offered to prove something other than the matter asserted. For example: The statement by a woman “I am the Pope” is not hearsay if offered to prove that the woman is insane.    F. Borderland of Hearsay – Trace on the Mind of the Declarant  State v. Bridges: Soldier molested girl in apartment and the soldier was later arrested for other crime. The girl described the apartment to her mother and the prosecutor sought to introduce the mother‟s testimony about the description of the apartment. In terms of admissibility, the credibility of declarant is probably irrelevant because there is no other way for the girl to have been able to describe the apartment [“trace on the mind of the defendant”]. Judge Weinstein has accepted such evidence on this theory. 1. The argument against this as hearsay is that it is intended to prove the truth of the matter asserted. G. “Statements” of Animals and Machines  Animals: A “statement” or conduct by an animal is not hearsay (Rule 801 “statement of a person”). The rationale is that animals don‟t lie. 1. Admissibility of bloodhound evidence has to prongs: a. The bloodhound in question must be shown to have been trained to follow human beings by their tracks and to have been tested in its accuracy in trailing upon one or more occasions; and b. The evidence of acts of trailing may be received as circumstantial of corroborative evidence against a person whom other circumstances point as being guilty of the commission of the crime charged. 12  Machines: Machines do not lie and they cannot be excluded as hearsay evidence. They do present a reliability issue and courts will generally require that the proponent of the testimony demonstrate that the evidence is reliable. HEARSAY EXCEPTIONS AND EXEMPTIONS  Rule 801(d) – lists statements which are not hearsay.  There are 27 separate hearsay exceptions in FRE 803 and 804(b) plus the catchall exception. A. Requirement of Unavailability: 1. Rule 803 exceptions do not require unavailability of the declarant. a. The statements and the circumstances are reliable enough that crossexamination is not necessary. 2. Rule 804 exceptions do require unavailability of the declarant. a. Cross-examination is desirable but it is not possible. Despite a preference to have the declarant testify, if he is unavailable and the circumstances indicate reliability, it is better to admit the statements then to keep them out. Note that the party offering the testimony has the burden of showing that the declarant is unavailable. B. Reasons that a Declarant may be Unavailable under Rule 804(a): 1. privilege; or 2. refusal to testify; or 3. lack of memory; or 4. death or then existing physical or mental illness or infirmity; or 5. proponent of a statement has been unable to procure the declarant‟s attendance by process or other reasonable means. C. Requirement of Personal Knowledge 1. Advisory Committee Notes – “In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of first-hand knowledge. It may appear from his statement or be inferable from circumstances.” 2. FRE 602. Lack of Personal Knowledge – A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter [subject to FRE 703 regarding expert opinion testimony]. D. Note that a court must determine as a preliminary question that the statement falls under a specific rule before the statement is admitted. Such preliminary questions are determined by the court under Rule 104(a) and must be proven by the offering party by a preponderance of the evidence. E. Dying Declarations – Rule 804(b)(2): In a prosecution for homicide or in a civil action proceeding, a statement made by a declarant while believing that the declarant‟s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 13 1. Fear of death supplies sufficient trustworthiness and the victim‟s death makes the hearsay necessary. 2. Such hearsay is admissible in criminal cases for homicide only and in all civil cases. 3. The declarant must be the victim. 4. Sense of imminent death – The victim must have made the statement while actually believing that death was imminent. 5. Scope of declaration – The dying declaration must state facts about the cause or circumstances of the victim‟s impending death. a. A mere opinion about the cause of death does not fall within the exception. 6. The requisite unavailability does not need to be because of death. The victim does not need to be dead at the time of trial, if she is otherwise unavailable, so long as the victim believed death was impending at the time that the declaration was made. a. Under Rule 104(a), the judge makes the preliminary determination of whether the victim thought that they were going to die. The judge can consider any and all evidence except for privileged evidence. 7. Note that this is an expansion of the Common Law rule in which the exception applied only in criminal murder trials. F. Present Sense Impression – Rule 803(1) (availability immaterial) 1. “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” 2. The statement must be “describing or explaining” the event or condition. 3. The statement must be made while the declarant was perceiving the event or condition, or immediately thereafter. a. The time interval between observation and utterance is too short to permit reflective thought. 4. Contemporaneous statements of present sense impression by unknown declarants may be admitted. G. Excited Utterance – Rule 803(2) (availability immaterial) 1. “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” 2. The trustworthiness of the statement is supplied by its spontaneous and contemporaneous nature which minimizes any chance of fabrication. 3. The statement must “relat[e] to” the startling event or condition. 4. The statement must have been made “while the declarant was under the stress of excitement caused by” the event or condition. H. Admissions by Party Opponents – Rule 801(d)(2)  Note that this is an exemption not exception.  Note that this is the most important hearsay exemption / exception because it is used all the time. 14 Any out-of-court words or acts of a party that are inconsistent with the position that the party takes in the current proceedings may be offered to show the truth of the matter asserted in the out-of-court statement. FRE 801(d) Statements which are not hearsay. A statement is not hearsay if– (2) Admission by party-opponent. The statement is offered against a party and is (A) the party‟s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party‟s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Corroboration Requirement [801(d)(2)] The contents of the statement shall be considered but are not alone sufficient to establish the declarant‟s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). a. Admissions Generally i. The statement does not have to be against the party‟s interest (i.e. “I committed the crime”). ii. The statement does not have to be based on personal knowledge. iii. The doctrine is incredibly broad – essentially anything ever said by a party may be used against them. iv. The rationale for admission of these statements is generally that a party would not make a statement against their own interest if it wasn‟t true (reliability). Also, under the FRE, this is an adversarial system and a party should be bound by their words. v. Admissions may be expressly made or implied from a party‟s conduct. b. Express Admissions i. Pleadings: When a party has filed pleadings in a current action, any admissions contained therein may be used against the pleader as conclusive evidence of the facts admitted. ii. Guilty Pleas: As long as a guilty plea is not coerced, it may be used as an admission in the accused‟s present trial or in any subsequent criminal or civil trial for the same act. When a guilty plea is withdrawn before trial, in most jurisdictions it may not be used as an admission 15 against the accused in the present or in a subsequent criminal or civil trial. c. Implied Admissions are inferred from conduct of the party or one of his agents. i. Admission by silence: If a party is shown to have heard and understood a statement made by another in his presence, and a reasonable person in the party‟s position would have denied the statement, then the party‟s nondenial (his conduct) may be introduced to shown that he agreed with or accepted as true the facts stated in the other person‟s statement.  Note that in the criminal context, once an accused has been Mirandized, silence becomes too ambiguous and is not treated as an admission. ii. Admission by other conduct: A party may do any number of things that will support an inference that he thinks he is liable in some way, i.e. jumping bail, fleeing the scene of a crime, attempted escape, counterfeiting evidence, or bribing a witness – the theory being that the party is impliedly admitting that he has a weak case. d. Adoptive Admissions [Rule 801(d)(2)(B)]: When a party is shown to have heard and full knowledge of the content of a statement made by another person, and the party by affirmative words or acts shows that he agrees with or accepts as true the facts alleged in the statement, the statement may be introduced as an admission against the party. e. Vicarious Admissions (agent or employee) [Rules 801(d)(2)(C)&(D)] i. A party may expressly authorize another (his agent or employee for example) to speak for him, or such authority may arise by operation of law. When this occurs, the admission of the agent or employee will be imputed to and be admissible against the principal or employer. ii. The statements of the agent must be made during the course and within the scope of the agent‟s authority to act for her principal. a. The trend is to hold that any “statements” about matters that are within the scope of the agent‟s employment are admissible. b. The statements are admissible as long as the employment relationship still exists – not if the employee has been fired for instance. The agency relationship must be proved by independent evidence (other than the statements of the alleged agent). a. The agency relationship includes: (i) the agent‟s power to alter the legal relationships between the principal and third parties; (ii) the existence of a fiduciary relationship toward the principle regarding matters within the scope of the agency; and (iii) the principal‟s right to control the agent‟s conduct regarding matters within the scope of the agency. 16 iii.  The issue of control normally determines whether an agency relationship exists. f. Vicarious Admissions (admissions by a co-conspirator) [ Rule 801(d)(2)(E)] i. Admissions by a co-conspirator may be introduced against another co-conspirator if the following requirements are met: a. The conspiracy itself is established prima facie by independent evidence (however, there is a trend permitting use of the statements themselves to prove the conspiracy); b. The statement itself was made during the conspiracy (before the crime was consummated or the declarant withdrew from the conspiracy); and  Note that a late joining conspirator takes the conspiracy as he finds it and is bound by the statements of the earlier conspiracy. c. The statement was made “in furtherance of” the conspiracy (i.e. relates to the effort to accomplish the legal objective).  Note that once the first conspiracy is complete, the later actions that the conspirators may take to conceal the first conspiracy, are usually considered to be a second, separate conspiracy. ii. The rationale is an agency analogy – the conspirators are each other‟s agents and an admission by one is an admission by all. Though this does not really apply in the criminal context, the law should not grant criminal conspiracies more favorable treatment than legitimate agencies. (U.S. v. DiDomenico, J. Posner) I. Former Testimony Exception [Rule 804(b)(1)] (requirement of unavailability) a. Transcripts of testimony given by a witness at a former deposition, hearing or trial, in the same or another case, are generally considered hearsay but admissible under an exception. b. They party against whom the testimony is being offered (1) must have been a party to the earlier proceedings, (2) must have had the opportunity to examine the witness when the testimony was being recorded, and (3) must have had a similar motive as that involved in the current proceeding. c. The issues in the former proceeding must be substantially the same as those involved in the trial at which the testimony is offered. d. A criminal defendant cannot introduce the grand jury testimony of a witness who asserts the 5th Amendment privilege at trial (unavailable at trial). Note that the circuits are split on whether there is a “similar motive” between the grand jury hearing and the later criminal trial. J. Statements Against Interest Exception [Rule 804(b)(3)] (requirement of unavailability) a. When a hearsay declarant, not a party to the action, has made statements against her own apparent self-interest, such statements are admitted since 17 they are generally thought to be trustworthy (and, therefore crossexamination can be dispensed with). b. The declarant must be competent, have personal knowledge of the facts stated, and not state the facts in an opinion or conclusory form. c. The declaration must be to the declarant‟s immediate prejudice at the time she makes the statement. The fact that a suit may be brought later on the basis of the facts stated is usually sufficient (e.g. “I was negligent.”). d. The declarant must be aware that the statement is against her interest. e. The interest affected must be of a substantial nature and a pecuniary or proprietary one. For example, a statement by A that she owns less of an interest in property then she formerly claimed (an estate for years as opposed to a fee simple) would be admissible. K. State of Mind [Rule 803(3)] (availability immaterial) a. This exception allows the introduction in evidence of unexcited statements of present sense impressions indicative of mental state made by out-of-court declarants. b. When the declarant‟s state of mind or mental condition is in issue (e.g. her feelings, emotions, attitudes, knowledge, belief, plans, intent, etc.) then the declarant‟s out-of-court statements concerning her mental condition, if made at the time that such condition is in issue, are admissible. i. “I like B very much and want to give him this $1,000,” is admissible on the issue of whether it was a gift or a loan. c. Future Conduct: A declarant‟s extra-judicial statements concerning her mental state are admissible to show that the declarant subsequently acted in accord with her mental state. i. Hillmon Doctrine: Evidence of an out-of-court declarant‟s intentions may be admitted to prove that the declarant did what was intended. 1. Note that the Hillmon Doctrine cannot be extended to declarations pointing to past conduct. 2. Note that the Hillmon Doctrine may apply to situations where the intention involves another person. d. Note that the state of mind exception allows the admission of indirect and direct assertions. i. Direct assertion: “I‟m scared of X” (to show scared of X) ii. Indirect assertion: “X threatened me” (to show scared of X) e. Summary of Analysis of State-of-Mind Statements: 1. Is the statement hearsay? (Is it a direct statement of the declarant‟s state of mind or circumstantial evidence of an unasserted state of mind?) 2. Is the statement one of “memory or belief” offered to “prove the fact remembered or believed?” 18 3. Is the relevant state of mind the intent of the declarant to do something in the future? (Hillmon Doctrine) 4. May the statement of intent be used to prove the intent of someone else, or the doing of an act by someone else? (U.S. v. Pheaster (9th Cir.) state of mind evidence may be admitted to show intent of the declarant even when it involves another person). L. Medical Diagnosis or Treatment [Rule 803(4)] (availability immaterial) 1. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 2. The rationale is that such statements satisfy all of the testimonial infirmities: b. Reliability – it is in the patient‟s self interest to be reliable. c. Corroboration – if the patient is speaking to a doctor than presumably the doctor can determine if they are being accurate. d. Perception – the patient is probably perceptive of their own ailments. e. Sincerity – similar to reliability. 3. The statement can be made to a doctor, nurse, paramedic, or anyone who is potentially providing medical treatment. 4. The statement applies to treatment or diagnosis. 5. The declarant does not necessarily have to be the patient (i.e. could be a relative speaking on behalf of the patient). Statements by the doctor to the patient are not admissible. 6. Statements of past symptoms are also included. 7. Statements about the causes of the symptoms are relevant when they have to do with the diagnosis or treatment – this often becomes relevant in child molestation cases. M. Statements of Prior Identification [Rule 801(d)(1)(C)] 1. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. a. Charlie testifies as trial “I picked Bill (defendant) out of a line-up at the police station a few days after the robbery.” This is admissible and is the classic paradigm example. 2. Most courts will also allow another witness (i.e. a police officer) to testify as to what the declarant identified. Note that the declarant still has to testify or be available for cross-examination. 19 3. Note that only identification of person is allowed. Identification of a getaway car, for instance, would not be permitted. Some courts have allowed identification of a person‟s clothing. N. Past Recollection Recorded [Rule 803(5)] (availability immaterial) 1. If a witness indicates that she has no present memory of the facts that she observed earlier but that she made a record of those facts, then the record is hearsay when offered to prove the facts asserted but is admissible as an exception if a proper foundation is first laid. 2. Rationale: If the witness is allowed to use the written record she escapes crossexamination, except as to the making of the record. However, if the requirements stated below are followed, the record is probably as reliable as the witness‟s testimony, since the possible defect of memory is avoided. 3. Requirements for Admissibility: a. The witness must identify the writing as one which she made herself or which was made under or at her direction.  This requirement has been liberally construed. For example, when a witness testified before a grand jury, the record of her testimony was held to have been “at her direction.”  The modern trend is to find it sufficient if the writing was made by another person for the purpose of recording the witness‟s statement at the time is was made and the witness read the memorandum when the event was fresh in her memory and stated that it was a correct record. b. The writing must have been made at the time when the facts recorded were fresh in the witness‟s memory. c. The witness must have forgotten the facts recorded so that she cannot testify from the stand. d. The writing must be authenticated as an accurate record by having the person who recorded the facts testify that she did so accurately. e. Since the contents of the writings are in issue, the best evidence rule applies and the original writings must be produced. 4. Admissibility of the Writing: a. The majority view is that the writing itself may be admitted as evidence. b. The minority view is that the writing cannot be admitted but must be read by the witness. The rationale is the juries give too much weight to writings. 5. Present Recollection Refreshed a. If the witness has a failure of memory, he may be shown some item (stimulus) to refresh his memory. The item is then taken away from the witness and he will testify as to his refreshed memory.  The refreshing document will not be admitted into evidence and so there is no hearsay problem. 20 O. Business Records [Rule 803(6)] (availability immaterial) 1. Records kept in the normal course of a regularly conducted business activity are admissible. a. The person making the entries must have a duty to make such entries; unofficial entries do not satisfy the requirement. b. The record must relate to the primary activity of the business; records prepared in anticipation of possible litigation do not qualify. 2. The offered records may be in any form if made in the regular course of business. 3. Entries of acts, events, conditions, opinions, or diagnoses are admissible. 4. The matters entered must have been within the personal knowledge of the entrant, or transmitted to the entrant by someone under a duty to report who had firsthand knowledge of the facts. 5. The entry must have been made at or near the time of the transaction so that the entrant‟s knowledge was still fresh (trustworthiness). 6. Like other writings, business records must be properly authenticated to be admissible. a. If the records are kept by several clerks then the courts will require the “custodian” of the records (or another qualified witness) to authenticate them. 7. The best evidence rule applies. 8. Computer records are allowed unless the opposing party produced some evidence to question their reliability. 9. An accident report is not trustworthy when prepared by a litigant specifically for use in trial. a. But the mere fact that a record could be used in litigation does not mean that it must be excluded – trustworthiness is key. b. A doctor‟s report, even though made in anticipation of litigation, may be introduced into evidence if there are guarantees of trustworthiness.  If the defendant requests a doctor‟s report, created by a doctor of the defendant‟s choice, the completed report, if offered by the plaintiff, would have sufficient guarantees of trustworthiness. 10. Government reports setting forth factual findings resulting from an authorized investigation do not fall under the business records exception (U.S. v. Oates). P. Absence of Entry of Business Records [Rule 803(7)] (availability immaterial) a. Testimony of the offer of the record for the purpose of demonstrating that a particular entry does not appear in the record is permitted. 1. The lack of entry is admissible to show that an event, which had it occurred would have been recorded, did not, in fact, take place. 21 2. Ex. a regularly-used receipt book to show nonpayment of a bill. Q. Public Records and Reports [Rule 803(8)] (availability immaterial) a. Records, reports, statements, or data compilations prepared by a public officer or agency may be admitted as a hearsay exception. Records must be officially kept by a public employee. This exception is broader than business records exception. b. Most courts apply this exception to police reports. c. There are three categories of public records not excluded by the hearsay rule: 1. Records setting forth the activities of the office or agency.  Employment records, personnel records, payroll documents 2. Matters observed pursuant to duty imposed by law / duty to report.  Police reports (Except not against the defendant in a criminal case. Note that the defendant could probably offer it) 3. Factual findings resulting from an investigation made pursuant to authority granted by law.  Administrative agency findings d. As long as a conclusion or opinion in a report is based on a factual investigation and satisfies the trustworthiness requirement, it is admissible with rest of the report (i.e. no distinction between facts and opinions). e. The writing must have been made at or near the time of the act or event recorded. f. Note that in a criminal case the criminal defendant must have opportunity to cross-examine the official who wrote report. g. The best evidence rule and authentication apply. R. Records of Vital Statistics [Rule 803(9)] (availability immaterial)  Not covered in class. S. Absence of Public Record or Entry [Rule 803(10)] (availability immaterial) 1. A statement in writing from the custodian of the record that he has made a diligent search and failed to find a record is admissible when offered to prove the absence of a record in that office. 2. The relevance of such evidence is that where one would expect to find public record or entry, the absence of such entry tends to show that the purported event never took place. T. Records of Religious Organizations [Rule 803(11)] (availability immaterial)  Not covered in class. 22 U. Marriage, Baptismal and Similar Certificates [Rule 803(12)] (availability immaterial)  Not covered in class. V. Family Records [Rule 803(13)] (availability immaterial)  Not covered in class. W. Records of Documents Affecting and Interest in Property [Rule 803(14)] (availability immaterial)  Not covered in class. X. Statements in Documents Affecting an Interest in Property [Rule 803(15)] (availability immaterial)  Not covered in class. Y. Statements in Ancient Documents [Rule 803(16)] (availability immaterial) 1. A statement contained in a writing which was created at least 20 years prior to the date of its offer is admissible against a hearsay objection where the authenticity of the document has been established. 2. The Common Law requires 30 years. 3. Must show that: (1) the condition of the document creates no suspicion regarding its authenticity, (2) the document has been kept in a place where it would likely be kept if it were authentic, and (3) it has indeed been in existence for at least 20 years at the time of its proffer at trial. Z. Market Reports, Commercial Publications [Rule 803(17)] (availability immaterial)  Not covered in class. AA. Learned Treatises [Rule 803(18)] (availability immaterial) 1. This is an important exception that comes up fairly frequently. 2. A learned treatise is a book or article published as a reliable authority on a matter ordinarily the subject of expert opinion, which is called to the attention of an expert witness upon cross-examination, or which is relied upon by the expert in direct examination. 3. Even though this is a Rule 803 exception in which availability is generally immaterial, here, the expert must be on the stand. 4. A learned treatise can be used to impeach an expert by showing that the expert‟s views are at variance with an authoritative text. 5. The relied on statement may be read into evidence but may not be received as an exhibit (used for substantive evidence or to impeach). Rules 803(19)(20)(21) not covered in class. Judgment of Previous Conviction [Rule 803(22)] (availability immaterial) 1. A prior conviction for a crime which carries a sentence of at least one year in prison or death is admissible as hearsay exception where it is offered against the person convicted in a later case for the proof of any fact which was essential to sustain the judgment of conviction. 23 BB. CC. 2. NOTE: A prior conviction can always be offered, where appropriate, for the non-hearsay purpose of impeachment. 3. A criminal acquittal is excluded as hearsay in subsequent civil cases (different burden of proof). 4. A civil judgment is not admissible in a subsequent criminal trial because the standard of proof is different. 5. NOTE: withdrawn guilty pleas and offer to plead are inadmissible – Rule 410. DD. Rule 803(23) not covered in class. EE. Residual Exception [Rule 807] 1) This is the “catch-all” exception to allow in other kinds of hearsay meeting the same standards of necessity and trustworthiness as required for the listed exceptions. It covers both available and unavailable declarants. 2) If a party wants to offer a hearsay statement that is not admissible under the other exceptions / exemptions then that party must give notice to the other party (extensive notice). 3) Requirements of the Rule: a. Circumstantial “guarantees of trustworthiness” – this is a case-by-case analysis dependent upon a variety of factors: i. Nature of the statement itself (sworn or unsworn) ii. Relationship between the declarant and the witness iii. Knowledge and qualifications of the declarant (mental capacity of the declarant) iv. Type of case in which it is being offered (civil or criminal) v. Corroboration (it isn‟t clear if this is a requirement) b. Offered as evidence of material fact. c. The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure though reasonable efforts. d. The general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. e. The proponent must provide notice: (1) particulars of the statement, (2) in advance of trial, and (3) name and address of the declarant. 4) The court must make sure that grand jury testimony is reliable before it is admitted. 5) Note that most scholars believe that if something is a “near-miss” then it should not be admitted. However, many courts do not follow the near-miss theory. a. The rationale is that if the evidence comes close to another rule, but does not fit, it is a near miss and should not be admitted because Congress intentionally excluded it. FF. The Confrontation Clause is the criminal defendant‟s constitutional right to confront the witnesses testifying against them (6th Amendment). 24 1. Admission of hearsay evidence under one of the recognized hearsay exceptions does not violate the Confrontation Clause of the Constitution. 2. The Confrontation Clause restricts the range of admissible hearsay in two ways: a. The prosecution must either produce, or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. b. Once the declarant is shown to be unavailable, the statement is admissible only if it bears “adequate indicia of reliability.”  Reliability can be inferred, without more, if it falls squarely within a firmly rooted hearsay exception: prior testimony, excited utterance, medical treatment or diagnosis, and statements by co-conspirators. Note that you can always argues that an exception is “firmly rooted” (except for below).  If the statement falls within a firmly rooted exception then the proponent isn‟t required to show unavailability.  If the exception is not firmly rooted, then must show “particularized guarantees of trustworthiness.”  Examples that are not firmly rooted: residual exceptions, new exceptions created by states, state law variations and expansions on longstanding exceptions, and statements against interest that inculpate the defendant. GG. Constitutional issues raised by exclusion of hearsay and other evidence when the criminal defendant seeks to admit it. 1. Voucher Rule: The “voucher rule” was a Common Law rule that a party who calls a witness “vouches for his credibility” and thus cannot impeach him. This was held unconstitutional by the Supreme Court in Chambers v. Mississippi. 2. In Green v. Georgia, the Supreme Court held that the Due Process Clause of the 14th Amendment may require admission of otherwise inadmissible hearsay as evidence for the criminal defense. 3. Note that in both cases the Supreme Court focused at least in part on the reliability of the statements. 25 IV. WITNESSES – ARTICLE VI & OPINIONS AND EXPERT TESTIMONY – ARTICLE VII A. Competency 1. Competency refers to the admissibility of a witness‟s testimony. a. While the weight of a witness‟s testimony is always up to the trier of fact (jury), his competency to testify is always a question of law to be decided by the trial judge. 2. Every person is competent to be a witness except as otherwise provided in the rules [Rule 601]. a. Exceptions: i. Dead Man‟s Statute: if a witness had a transaction or a conversation with someone who has subsequently dies and the witness is suing the decedent‟s estate over that transaction, the witness may not testify about the transaction because the decedent is not there to testify. ii. A judge cannot be a witness in a case over which he is presiding [Rule 605]. iii. A juror cannot be a witness in a case in which he is sitting [Rule 606(a)]. 3. Common Law Incompetancies a. At Common Law, there were a number of grounds to disqualify a witness from testifying: Religious Belief (lack thereof); Infamy; Interest; Testimony of an Interested Survivor; Mental Capacity (infant, insane, intoxicated); Infancy; Mental Derangement; Intoxication; Marital Relationship; and Official Connection with Tribunal (judge, court officer, attorney, juror). b. Rule 601 abolished the Common Law rules of incompetencies (all of the witness exclusions originally had to do with reliability). c. The Common Law incompetencies are not a ground to prohibit the witness from testifying though they are grounds for impeachment 4. Preconditions to Witness Testimony: a. Rule 602: The witness must have personal knowledge of that which the witness seeks to testify about. Whether the witness has personal knowledge is a question for the jury. b. Rule 603: The witness must take an oath or affirmation that they will testify truthfully. Note that the witness does not need to swear before God. c. Mental incapacity or drug or alcohol use by the witness does not render them incompetent though it is grounds for impeachment. 26 d. The federal rules do not render a child witness incompetent though many states have rules regarding child witnesses. In most states the judge will make an initial determination about the child‟s competency. e. Ability to communicate  The witness must be capable of expressing himself so as to be understood by the jury – either directly or through an interpreter. i. Interpreter  If the witness testifies through an interpreter, it must be shown that the interpreter is qualified in the foreign language in question and is under oath to make a true translation [Rule 604]. 5. Criminals: Even a convicted felon may give testimony (different from common law). a. The fact of conviction may serve as basis for impeachment though. The conviction may affect the weight of the testimony, but not its admissibility. 6. Hypnosis: The use of hypnosis presents special problems because of its potential to alter memory. a. The type of memory loss that the hypnosis is intended to overcome is a critical factor. When there is a pathological reason for the loss, such as traumatic neurosis, hypnosis is likely to result in reliable memory. i. When the loss is due to a lack of recollection or to some discernable motivation, the hypnotic memory is likely to be fanciful or otherwise unreliable. b. Hypnotic susceptibility: Some subjects are more amenable to hypnosis than others, and this may affect the reliability of the results. c. The Supreme Court recognized three possibilities of inaccuracies i. The subject may try to please the hypnotist with imagined answers. ii. The subject may confabulate, or provide details from the imagination. iii. The subject‟s memory hardens, giving greater confidence in the memory, whether correct or false. d. Courts treat hypnotically induced testimony in one of three ways: i. Hypnosis testimony is admissible (minority view). ii. Hypnosis testimony is per se inadmissible.  Note that in Rock v. Arkansas, the Supreme Court held that in that specific case, the per se exclusion of the defendant‟s hypnotically induced testimony – that was corroborated by an expert witness – was a Constitutional violation of the defendant‟s right to testify on her own behalf. 27 iii. If a person is hypnotized in accordance with procedural safeguards then it is admissible. e. Note that under some state rules, if a witness is hypnotized, they are not only precluded from testifying about the induced memories, but also precluded from testifying at all. 7. Judge as Witness [Rule 605] (see above) 8. Juror as Witness [Rule 606]: a. Rule 606(a) A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. b. Testimony as to Jury Deliberations  There is a wide split of authority as to the extent to which jurors are permitted to testify in post-verdict proceedings for the purpose of attacking or supporting the jury verdict. i. Under FRE, juror testimony is admissible only to show any outside influence improperly brought to bear on any member of the jury, or “extraneous prejudicial information improperly brought to the jury‟s attention.” [Rule 606(b)].  Anything internal to the deliberations cannot be attacked. Thus, the jury could flip a coin to determine the verdict and that cannot be challenged.  Drug use, lack of sleep, etc. are similarly internal influences and may not be admitted to invalidate a verdict (Tanner v. United States). B. Basic Trial Procedure 1. Introduction a. Direct examination  when a witness is first examined on a matter not within the scope of any previous examination. b. Cross-examination  examination by a party other than the direct examiner on a matter within the scope of a previous examination. c. Redirect examination  the direct examiner questions a witness after his cross-examination. d. Recross-examination  questioning by the cross-examiner after a redirect. 2. Rule 611 – Mode and Order of Interrogation and Presentation a. Control by the court. The trial court has broad discretion in controlling the mode and order of interrogation (may impose time limits for instance). The operative word is “reasonable control.” b. Scope of cross-examination. “…[L]imited to the subject matter of the direct examination and matters affecting the credibility of the witness…” 28 c. Leading questions. i. A leading question is a question that suggests an answer. ii. Leading questions are allowed for preliminary undisputed matters, to transition from one area to another, where the witness is hostile or adverse, or in a special case where the witness needs assistance (i.e. child witness). iii. Leading questions are generally not allowed during direct examination. iv. Leading questions are permitted on cross-examination. 3. Common Objections as to Form: a. leading, argumentative, asked and answered, assuming facts not in evidence, compound, calls for speculation, answer is nonresponsive, lack of foundation, harassing / badgering the witness, cumulative, misstating testimony / misleading, ambiguous / vague. 4. Cross Examination A. Cross-examination serves four basic functions: a. Impeachment – discrediting the witness being examined. b. Using the testimony of the current witness to discredit the testimony of other witness. c. Using the testimony of the witness to corroborate the favorable testimony of other witness. d. Using the testimony of the witness to develop cross-examiner‟s own case. B. In direct one can neither lead nor impeach the witness; in cross both may be done. a. But, are exceptions to rule against impeaching one‟s own witness. C. The adverse party has the right to cross-examine a party‟s own witnesses. a. Refusal to respond  If a party or nonparty witness refuses, without justification, to answer questions that are necessary to his complete crossexamination, his previous direct testimony may be excluded. b. Excuse of incapacitation  A party or nonparty witness may not refuse to be cross-examined when cross has not begun (or material parts not completed) on the excuse of physical or mental incapacitation without the court striking the witness‟s direct testimony. c. Witness dies  If witness dies before cross, his direct may be stricken. d. Judge has wide discretion _ Judge‟s rulings will not be reversed unless he unduly or arbitrarily restricted the right, causing substantial harm to a party. D. Scope of Cross-examination a. Rule 611(b) cross-examination limited to matters covered in direct and matters affecting credibility of witness. i. BUT, the cross-examiner may go into additional facts that are directly related to the general subject matter covered on direct. b. When the purpose of the cross-examination is to test the credibility of a witness, none of the jurisdictions limit the scope of the cross. 29 C. IMPEACHMENT A. Generally 1. Impeachment is the process whereby a lawyer attacks the credibility of a witness. 2. Impeachment can occur on cross, or (in limited circumstances), as part of the opponent‟s extrinsic evidence presented by either testimony of other witness or by the introduction of exhibits. 3. Effect of impeachment  The fact that a witness has been impeached does not mean that his testimony will be stricken or disregarded. The jury may still choose to believe the witness despite impeachment evidence. a. A witness that has been impeached can be rehabilitated on re-direct or (in limited circumstances), through extrinsic evidence presented by either the testimony of other witness‟s or by the introduction of exhibits. 4. Who May Impeach – Rule 607  The credibility of a witness may be attacked by any party, including the party that called the witness. a. The Voucher Rule (against impeaching own witness) is abolished. b. The party calling a witness may sometimes raise the impeaching material during direct to take the “sting” out of the potential impeachment. c. Generally, you cannot bring in extrinsic evidence to impeach a witness on a collateral issue. i. Extrinsic evidence is anything outside of the witness‟s testimony. Credibility is never a collateral issue. d. BUT, the prosecution may NOT call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony. U.S. v. Hogan. 5. There are five ways to impeach a witness: a. Contradiction (“counterproof”) b. Character of witness for untruthfulness i. Non-conviction misconduct that casts doubt on veracity [Rule 608(b)]. ii. Convictions that cast doubt on veracity [Rule 609]. iii. Reputation / opinion testimony about the character of witness for veracity [Rule 608(a)]. c. Showing that witness had made prior inconsistent statements [Rule 613]. d. Defect in sensory or mental capacity. e. Showing bias that may lead the witness to fabricate. B. Impeachment by Contradiction  Something in the witness‟s story is wrong. 1. Can‟t use extrinsic evidence. 2. Collateral Matters Rule  can‟t introduce other witness just to contradict witness on a matter that would not otherwise be relevant to the case. 30 a. Prevents wastes of time; avoids confusion of the issues. b. The rule excluding extrinsic collateral evidence to impeach a witness does not apply to cross-examination itself. 3. Under 404(b) evidence of other crimes may be admissible to impeach a testifying defendant through contradiction. a. When evidence comes from own defendant‟s own mouth, then it is NOT extrinsic. b. Example: Defendant‟s admission of prior positive drug tests contradicted his testimony that he had only seen drugs on TV. C. Impeachment by Evidence of Character and Conduct of Witness – Rule 608 1. Whenever a witness takes the stand, he puts his character for honesty and veracity in issue. He can therefore be impeached by evidence that his character is such that he may lie under oath. a. Extrinsic evidence IS allowed – testimony of character witness. 2. Rule 608(a)  Attack or support witness‟s credibility with reputation or opinion evidence only relating to truthfulness or untruthfulness. a. Only when credibility for truthfulness is attacked can party attempt to prove truthfulness through opinion or reputation testimony. Then other side can ask these witnesses about specific acts. 3. Prior Bad Acts  Misconduct that has NOT been the subject of a criminal conviction may still reflect on a witness‟s veracity. 4. Rule 608(b)  Most courts allow cross-examination as to prior bad acts if they are clearly probative of the veracity and do not involve unreasonable risks of prejudice, confusion, etc. (judge‟s discretion). a. Can NOT introduce extrinsic evidence to prove past misconduct, but can ask questions that refer to extrinsic evidence. 5. Subject to 403 balancing. D. Impeachment by Evidence of Prior Convictions – Rule 609 1. Proof of conviction of certain crimes may be used to impeach a witness. 2. Rule 609(a)(1) allows impeachment of a witness who has been convicted of a crime punishable by death or by at least one year imprisonment. a. Majority view permits impeachment by any felony conviction, regardless of type of offense. b. If witness is not accused, do 403 balancing. c. If witness is accused, do reverse 403 (probative value outweighs prejudice). 3. 609(a)(2) allows impeachment of any witness by any crime involving dishonesty or false statements, regardless of whether a felony or misdemeanor. 31 a. Courts cannot do 403 balancing test for 609(a)(2). Admission of this evidence is mandatory! b. Dishonesty means deceitful behavior, a disposition to lie, cheat, or defraud. This is narrowly construed. i. Bank robbery is not dishonest crime. 4. Evidence of a conviction is not admissible if it has been more than 10 years since the date of conviction or release, unless the court determines, in the interests of justice, that the probative value of the conviction, supported by facts and circumstances substantially outweighs its prejudicial effect. 5. If conviction is pardoned or annulled, then NOT admissible. 6. Juvenile adjudications are NOT admissible, generally. 7. A pending appeal doesn‟t render conviction evidence inadmissible – evidence of the appeal is admissible. 8. * NOTE: Evidence of similar offenses can be highly prejudicial. The general rule is that evidence of similar offenses for impeachment purposes under FRE 609(a)(1) should be admitted sparingly, if at all. 9. Remember, under 404(b)  evidence of other crimes, wrongs or acts is NOT admissible to prove the character of a person in order to show propensity. E. Impeachment by Psychiatric Condition 1. This type of impeachment usually involves testimony that a witness is a pathological liar. However, it may concern other mental conditions that would affect the credibility of the witness. 2. SO, evidence of a witness‟s mental disorders that may affect her motives for testifying is admissible to impeach the witness‟s credibility. a. For example, a paranoid person may interpret a reality skewed by suspicions, antipathies, or fantasies. 3. Psychiatric evidence is NOT a collateral issue; it is one of credibility which must be determined by the jury. F. Impeachment by Prior Statements – Rule 613 [(801(d)(1)] 1. A witness may also be impeached by showing that he has made prior inconsistent statements (extrinsic evidence) regarding the matters as to which he has given testimony. 2. Before a witness‟s prior inconsistent statement can be admitted, it must in fact be inconsistent with his testimony at trial. a. Thus, if the witness‟s only testimony is that he does not remember anything, the prior statement is NOT admissible because there is nothing with which it can be inconsistent. 32 3. Rule 613(a) The statement itself (if in writing) need not be shown to the witness; nor need its contents be disclosed (although it must be shown to opposing counsel on request). 4. Many jurisdictions limit the foundational questions that must be asked. a. But, still it is best to show context. 5. It is sufficient if the witness was given an opportunity to explain or deny the allegedly inconsistent statement. Rule 613(b). 6. NOTE: A prior inconsistent statement by a witness is hearsay and therefore cannot be used as proof of the facts contained therein (unless falls under an exception of 803 or 804 or is not hearsay as explained in 801). a. Its use is limited to impeachment of the witness and the jury must be so instructed. b. Remember, prior inconsistent statements made by the witness while testifying under oath at some prior trial, hearing or other proceeding are admissible as nonhearsay; as such, they can be used as substantive proof of whatever was stated. Rule 801(d)(1)(A). i. Grand Jury testimony can come in. ii. Prior inconsistent statements are ALWAYS admissible. 7. A witness who has been impeached by a prior inconsistent statement can be rehabilitated by: a. Redirect, where counsel can show that the circumstances of the making of the statement were such that the witness was mistaken, the witness was misunderstood, or that the prior statement was taken out of context. b. If the prior statement is written and contains additional statements on the subject matter, the entirety of the writing can be read to the jury under the rule of completeness (Rule 106). This may help to explain. c. If the prior statement was written by someone other than the witness and adopted by the witness, counsel can show that the recording of the statement was inaccurate, and that the witness wasn‟t given adequate opportunity to review and correct the recording. d. Reputation evidence as to witness‟s integrity and veracity. e. Evidence of prior consistent statements IS admissible! i. Under 801(d)(1)(B), prior consistent statements are NOT hearsay if they are offered to rebut a charge of recent fabrication or improper influence or motive. Thus, a prior consistent statement can be used as substantive evidence.  BUT, consistent statement ONLY can be offered to rebut an alleged motive (improper influence or recent fabrication).  The prior consistent statement doesn‟t have to have been made under oath like prior inconsistent statement. ii. A statement made after the speaker had a motive to testify falsely (leniency, plea deal) but before the witness testified in court would NOT be eligible as non-hearsay. 33 G. Impeachment by Showing Hostility, Bias or Interest. 1. Quite apart from attacking the witness‟s character for truthfulness, the crossexaminer may seek to impeach a witness by showing that he is biased, hostile, or has some interest in the outcome of the trial giving him a motive to lie. 2. Bias a. Witness can be biased for as many reasons as there are for one person to be associated with another, (i.e. family relationships, friendships, similar economic, social, occupational positions, etc.). i. However, evidence as to the bias, prejudice, or interest of the witness’s relatives is generally not admissible to impeach the witness because one cannot choose his relatives.  Friends bias can be used for impeachment. ii. Evidence of membership in same organization – the tenets of which include perjury to protect members – is admissible. b. Extrinsic Evidence  The general rule is that before extrinsic evidence of bias can be introduced through either the testimony of another witness or by use of a document, the witness with the alleged bias must be confronted with that alleged bias on cross and deny it. c. Bias is different than character evidence. Whereas character evidence is about one‟s nature or general trait or character, bias is specific and related to the state of mind of witness. 3. Prejudice a. Prejudice is the opposite of bias. It involves a showing as to why a witness has negative feelings towards a party. Prejudice can be general, such as disliking people of a certain race or religion, or can be case specific. b. Extrinsic Evidence  Generally, before extrinsic evidence can be used, the witness with the alleged prejudice must be confronted with the alleged prejudice on cross and deny it. 4. Interest of outcome a. Civil cases  Interest in the outcome of a civil case usually results from a pecuniary interest of the witness in the verdict. An interest can be pecuniary or an expectation of a witness that he will benefit as a result of favorable testimony. b. Criminal Cases  The defendant has a liberty interest and his family has an accompanying economic interest. Government witnesses who testify pursuant to a negotiated agreement also have a liberty interest in testifying in favor of the government. For that reason, plea bargains with government witnesses must be disclosed to the criminal defendant because of the potential exculpatory nature of this evidence. c. Extrinsic evidence  Extrinsic evidence generally can‟t be used until the witness with the alleged interest is confronted on cross and denies or attempts to explain away the interest. 34 d. It is proper to ask a witness on cross what compensation he has been promised for testifying. 5. Improper motive of influence a. Often used in connection with interest in the outcome, improper motive or influence usually arises where the witness‟s testimony has been purchased by money or threats. b. The focus is on the mind of the witness and not the party that calls him. For example, a belief or hope on the part of the witness that he will receive favorable treatment will be sufficient to allow admissibility of this sort of evidence. c. Extrinsic evidence  Extrinsic evidence generally can‟t be used until the witness with the alleged interest is confronted on cross and denies or attempts to explain away the influence. 35 6. Rehabilitation a. The proponent of the witness can show that the alleged bias, prejudice, interest, or improper motive or influence does not in fact exist. b. Rehabilitation of the witness that has been impeached can be accomplished by redirect examination or by the use of extrinsic evidence. c. Rehabilitation may be shown through prior consistent statements made at a time when the alleged improper motive didn‟t exist. H. Impeachment by Memory or Perception 1. A witness may be impeached by showing that the witness has an impaired ability to remember the events in question or by showing the unlikelihood that the witness can actually remember those items about which testimony is given. 2. Also, a witness may be impeached by showing that the witness had an impaired ability to perceive the events in question. a. Matters of perception include the ability to see, hear, smell, or feel some particular item in question. OPINIONS, EXPERTISE and EXPERTS I. Opinion Evidence by Law Witnesses 1. An opinion is an inference from facts observed. a. The general rule is that the drawing of such inferences is the function of the trier of fact, so testimony that is the mere opinion or conclusion of the witness is NOT admissible. b. BUT, there are a number of situations in which statements that are conclusions or opinions by the witness are admissible. i. Either by lay witness or expert. 2. Rule 701  Conclusions and opinions by lay witnesses are admissible when derived from their personal observation of the facts in issue and when no better evidence can be obtained. a. Before a lay witness‟s opinion is admissible, the trial judge must be satisfied that: i. The witness‟s opinion is “rationally based on the perception of the witness” (the witness personally observed that about what he has an opinion), AND ii. The opinion is “helpful to a clear understanding of his testimony or the determination of a fact in issue.”  This means that the subject of opinion has to be something about which normal persons regularly form opinions (i.e speed, size, and sound) and that opinion testimony is the clearest way of getting matter to jury. iii. Courts usually allow lay opinions as to sobriety/intoxication, speed of moving objects, value of personal property, size, color, and weight of objects, and time and distance. 36 b. Modern trend favors admission of opinion testimony and relies on cross to reveal weaknesses in the witness‟s conclusions. 3. Rule 704  All non-expert testimony in the form of an opinion or inference otherwise admissible is NOT objectionable because it embraces an ultimate issue to be decided by the trier of fact. J. Expert Opinion 1. General requirements for admissibility – trial court must determine: a. Specialized knowledge helpful to the jury  It must appear that the subject matter at issue goes beyond the everyday knowledge of persons of ordinary experience and education. [Rule 702] i. i.e. that some scientific, technical, or other specialized knowledge would be of assistance to the trier of fact in understanding the evidence of determining the issue. b. Witness specially qualified  It must appear that the witness whose opinion is offered has some special knowledge, skill, experience, or other qualification that would be of assistance to the jury for the purpose aforesaid. [Rule 702] c. Proper basis for opinion  Finally, the witness‟s opinion must be based on matters that experts in the particular field reasonably rely upon in forming opinions regarding the subject matter at issue. [Rule 703] 2. The trial court‟s determination of the above is one of the preliminary matters as to which the proponent carries the burden of persuasion – unless the trial court is persuaded as to the witness‟s qualifications, etc., the opinion testimony is NOT admissible. 3. Usually, expert testimony is one method by which a party may prove its case. But sometimes expert testimony will be required as a matter of law. a. Usually when the subject matter is such that the juror cannot determine liability from common experience. 4. Expert can NOT express a direct opinion that a criminal defendant is guilty of the crime charged. a. Expert can offer opinion as to criminal defendant‟s intent (i.e. intent to distribute crack). 5. An expert witness may NOT offer opinions that embody legal conclusions by including the terms of the statute that embody the crime. a. Rule 704(a)  Abolished ultimate issue rule. Any witness can give testimony which concludes ultimate issue. Under common law, testimony could not embrace ultimate issue (using legal language, etc.) b. Rule 704(b)  Exception to 704(a) (“Hinckley Amendment”)  reinstates ultimate issue rule as to mental state of criminal defendant. 37 6. An expert witness may NOT offer opinions on relevant events based on his personal assessment of the credibility of another witness‟s testimony. a. Witness credibility is to be determined exclusively by the jury. 7. An expert witness usually has to disclose the facts or data upon which he relied in forming his opinion before he may state the opinion itself. Fact or data may be elicited by: a. First-hand observations  Expert can show to have personally perceived the facts (i.e. treating physician). b. Testimony heard in court  The expert may be asked if he was in court and heard the facts as developed by previous testimony, and whether his opinion is based thereon. c. Hypothetical Question  A hypothetical question may be posed for the expert. i. Hypothetical questions can NOT (1) include facts that are not in evidence, (2) be based in part upon another expert‟s testimony, (3) be argumentative, or (4) include unnecessary facts. d. Data/Facts outside court  The presentation of facts or data to the expert outside of court and other than by his own perception. i. Rule 703 permits the introduction of underlying facts or data necessary to the expert‟s opinion. ii. Hearsay is not admissible as substantive evidence, only admissible to explain basis of the expert‟s opinion. iii. Balancing test from [Rule 703] – 2000 Amendment  probative value of evidence in assisting jury in understanding expert testimony vs. prejudicial affect.  Rule 403 allows the evidence in unless prejudicial. Here, the evidence stays out unless its probative value is very high. iv. Must be facts or data reasonably relied upon in that particular field. 8. An expert can NOT bolster his opinion evidence with hearsay (by testifying that his conclusions were “essentially the same” as those of another expert who did not testify and whose report was admitted at trial). a. Witness can say he reviewed the other expert‟s report and even relied upon it, but he could not testify that the two opinions were essentially the same. This is hearsay and is not allowed. 9. An expert may base his opinion on underlying information, but the otherwise inadmissible information can‟t just come into evidence just because it helped the expert form his opinion. a. It must still comply with the requirements of Rules 703 and 705. b. NOTE: Reports prepared for litigation are not of the type reasonably relied upon by experts in a particular field [Rule 703]. c. Inadmissible, but reliable, information can form the proper basis for an expert‟s testimony. 38 10. Rule 706  Court can appoint an expert to testify or explain technical information and advise the court. K. Real or Demonstrative Evidence 1. Real or demonstrative evidence is evidence that can be directly presented to the fact finder (i.e. a gun or knife). a. The testimony of witnesses regarding such evidence is NOT required; the evidence speaks for itself. 2. Types of real evidence: a. Original Evidence  Real evidence may be the original thing itself i. Example: the murder weapon in a homicide case. ii. If it can‟t be brought in court (murder scene), the judge may let the jury go view it. b. Prepared evidence  Real evidence may be prepared for demonstration. i. Example: tape recordings, models, sketches, photos, experiments. c. Direct evidence  real evidence may be offered to prove some fact about the object itself. i. Example: if the issue is whether the plaintiff was injured, plaintiff‟s mangled arm may be shown to the jury. d. Circumstantial evidence  Real evidence may also be presented to raise an inference as to the existence of nonexistence of some fact that is in issue. 3. Problems of Admissibility: a. Relevancy  All real evidence must pass the basic relevancy test in order to be admitted in evidence. i. Real evidence may be excluded if it is too prejudicial. b. Authentication  All real evidence must be identified and its connection with the case explained. Witnesses are called to do this. c. In making these rulings, trial judges are given wide discretion. L. Experimental and Scientific Evidence 1. Experiments that are conducted out of court and the results of which are described at trial by witnesses. 2. Problems with admissibility: a. Relevancy  The biggest problem is usually one of relevancy. i. The conditions under which the experiment is conducted must be substantially similar to the facts that existed at the time that the events in dispute occurred. 39 ii. When the experiment is technical or complex, the witness describing the experiment will have to be a qualified expert. iii. The witness must describe the test, the conclusions and reasons for them, and the accuracy of the results. b. Substitute for Relevancy  Whether a test is reliable is an issue that should be discussed under relevancy. c. Prejudicial Evidence  Even if a test or experiment yields relevant evidence, such evidence may be excluded in the discretion of the judge due to its prejudicial nature. 3. Specific tests or experiments: a. Radar test to measure speed  When radar is used to measure the speed of a moving car, this evidence will be admitted if a foundation is first laid as to the accuracy of the device itself and its operation. b. Body fluid test  Chemical tests for intoxication (blood, urine), whether voluntarily or involuntarily given, are usually admitted. Blood tests to prove identity are usually admissible. c. Lie-detector and truth serums  Generally these tests are NOT admissible in evidence since they are though to be untrustworthy. However, when such tests are administered by a qualified expert, some courts will admit the evidence if all parties agree to have the tests taken. 4. Admissibility of scientific evidence: a. The majority of states still follow the Frye “general acceptance test”: scientific expert testimony is admissible if the scientific methodology or procedure is generally accepted within the scientific community. b. New Test Daubert v. Merrell Dow Pharmaceuticals (U.S. 1993): c. Scientific knowledge factors (not all factors are required): i. Can be and has been tested, ii. Has been the subject of peer review and publication, iii. Has standards controlling its operation. iv. Court should consider known or potential rate of error. v. General acceptance (from Frye). d. Frye recognizes that judges aren‟t scientists and so let the scientists be the gatekeepers through their own “general acceptance.” i. Frye test is inconsistent with FRE‟s liberal approach. e. Daubert lets the judges be the gatekeepers. i. The factors are NOT definitive; the trial court has discretion. ii. Other factors in ACN are helpful too. f. Daubert extends to not only scientific evidence, but applies to technical knowledge and all forms of expert testimony under Rule 702 (per Kumho Tire). i. The standard of review is abuse of discretion. g. There must be a Daubert hearing before evidence is admitted under Rule 702. 40 5. Handwriting and Polygraphy a. Analysis by a handwriting analyst may or may not be admissible dependent upon the courts determination that is scientific or nonscientific evidence. i. Experienced handwriting experts may be able to provide an opinion that is helpful to the jury. ii. Since Daubert, nine federal courts have questioned the admissibility of handwriting expert testimony. iii. There are two stages to such analysis: first stage (pointing out the similarities and the differences between the handwriting samples) and second stage (evaluating the similarities and the differences). b. Basic accuracy of the polygraph test is still open to debate but results of polygraph exam are NOT inadmissible per se. i. When parties stipulate in advance to admissibility of polygraph results, the trial court should admit evidence.  Stipulation should include: (1) the manner in which the test is conducted, (2) the nature of the questions asked, (3) the identity of the examiner, and (4) the purpose for which the evidence will be introduced. ii. Polygraph evidence is also admissible to impeach or corroborate the testimony of a witness at trial. c. BUT, there is no consensus that polygraph evidence is reliable. i. Trial court retains discretion. 6. Statistical Evidence a. When a certain event cannot be proved by direct evidence, the parties may resort to proof based on probabilities. i. Such evidence is not favored, even thought the standard of proof in civil case may be “more likely than not.” The courts require more certainty than a mere statistical likelihood. ii. However, if in a given case the probability evidence is such that it approaches certainty, the courts will admit the evidence. b. Statistical evidence is NOT admissible in criminal cases. i. “Mathematical odds are not admissible as evidence to identify a defendant when the odds are based on estimates the validity of which have not been demonstrated.” c. Blood grouping tests for paternity  long been recognized; covered by strict statutes. i. Most courts admit such evidence if a foundation is laid first. ii. Some courts won‟t admit results if the results are not negative. 7. Eye Witness Identifications a. An expert witness may testify about problems with eyewitness identifications. b. Variables affecting accuracy of eyewitness identifications: 41 i. The forgetting curve is very steep. Immediate identification is much more trustworthy than long-delayed identifications. ii. The effects of stress, unconscious transfer of identification, and assimilation of post-event information. iii. The fact that the witness‟s degree of confidence is unrelated to accuracy. 8. Controversial “Syndrome” Expert Testimony  Battered women syndrome (mostly defense)  Battered child syndrome / effects of sexual abuse (prosecution)  Rape trauma syndrome (prosecution)  Children‟s memory and testimony (defense)  The basic premise is that people act in a certain way and the behavior of individuals in certain situations may in fact be counterintuitive to what the lay juror may expect. For example, in the case of a battered woman, the jury may not understand why the woman did not leave and the witness may testify about learned helplessness. 9. DNA Evidence a. Two types of genetic testing: RFLP and STR. b. DNA evidence is found at the crime scene and is called transfer evidence – the defendant transferred his DNA to the victim or the crime scene or the victim transferred her DNA to the defendant. i. Note that there are different time frames for the viability of such evidence. c. See class notes for collection, admission and trial processes. 42 V. PRIVILEGES – ARTICLE V A. Scope and Effect of Privileges: 1. Privileges keep out helpful evidence in situations where it is considered more important to keep certain information confidential than to require disclosure of all information relevant to deciding issues in case. 2. Privileges are generally disfavored. The only exception to the general rule that the public has a right to “every man‟s evidence” is when recognition of a privilege would promote a public good transcending the public‟s need for evidence. 3. Rule 501 provides that federal courts shall apply the rules of privilege developed at common law except that they must look to state rules of privilege in diversity cases. 4. Only the holder of the privilege (person whose interest or relationship is sought to be protected) can claim the privilege. a. A privilege may also be asserted by someone authorized to do so on behalf of the holder b. If the holder is not present, the court or a motion by any party must exclude testimony which is subject to a claim of privilege. c. Only the holder can complain when the disclosure of the privileged matter was compelled erroneously or made without opportunity to claim the privilege. 5. When a communication is claimed to be privileged, it must always be shown that it was made in confidence. 6. Waiver: a. By failure to object  As with other exclusionary rules of evidence, privileges are deemed waived if not raised by appropriate and timely objection when the testimony is first offered. b. By consent  Any person entitled to claim a privilege may waive it by consent. i. Failure to claim the privilege ii. Contractual provision iii. Voluntary disclosure c. A waiver of the privilege by one holder does NOT affect the right of the other to claim the privilege. d. There is no waiver if the disclosure was compelled erroneously or made without opportunity for the holder to claim the privilege. Eavesdroppers  As long as the holder of the privilege was not negligent, there is NO “waiver” of the privilege. 43 7. B. Attorney-Client Privilege 1. A client of an attorney has a privilege to refuse to disclose, and to prevent the attorney or anyone else from disclosing, confidential communications between the client and the attorney related to the rendering of legal services. a. Encourages full disclosure by the client to the attorney to facilitate proper legal counsel. b. Privilege belongs to the client. Only the client can waive it. c. Client has an absolute privilege, even after he dies. 2. Communication must have been made to a member of the Bar, or to an employee for transmission to the lawyer. a. Actual employment of the attorney is NOT required. b. Communications are protected even if the attorney does not accept the case or the client does not hire the attorney. 3. Privilege covers communications that relate to a fact the client told his attorney primarily for the purpose of securing either an opinion on law, legal services, or assistance in some legal proceeding. a. Doesn‟t extend to non-legal matters (i.e. business advice, court time) 4. Communication between client and attorney must have been intended to convey a specific meaning. a. Attorney‟s observations of client‟s condition, identity of the client, hiring of lawyer, the amount of fees and payment thereto, and the fact that a consultation took place are NOT privileged. b. Documents provided by client for attorney are NOT privileged unless prepared specifically to give client information. c. Documents prepared by attorney that reveal the attorney‟s mental processes in evaluating information are protected under work-product doctrine. i. Only applies to documents made in anticipation of litigation. d. A cover letter may be protected, but underlying documents probably aren‟t if they are otherwise discoverable. e. NOTE: Underlying facts are NOT protected, only communications. 5. The “client” who communicates with the lawyer may be a natural person, a corporation, or any similar entity. a. Any employee‟s communications with the corporation‟s counsel are protected by the corporation‟s privilege, not the employee‟s, when the employee acts in a representative capacity. b. Federal Courts (Upjohn) Employees at any level could, acting within the scope of their employment, cause serious legal problems for corporation. c. Control Group Test  only those who control the corporation fall within the attorney-client privilege. Many states still use this. 44 6. Confidentiality  Communication must have been made outside presence of strangers under circumstances that show that the parties intended the communication to be confidential. a. Presence of authorized third parties (relatives, joint clients) doesn‟t ruin privilege. b. Use of agents (secretaries, translator) doesn‟t destroy privilege either. c. Communications to counsel of co-attorney or co-defendant are also protected. d. If an attorney hires a physician to examine the client in preparing for litigation, the physician‟s report is NOT privileged under physicianpatient privilege because not treatment is contemplated. i. BUT, the physician could be said as acting as the client‟s agent and communications to attorney may be privileged (if doctor isn‟t going to testify). 7. Exceptions  public policy reasons privilege not applicable. a. Joint clients  if litigation later arises between clients. b. Breach of duty  if either client or attorney breaches duty, attorney may testify as to relevant communications. c. Proposed crime  A communication made to enable either the client of the attorney to commit a crime or fraud is NOT privileged. i. Public policy does not require protection of a person who takes counsel on how he can safely commit a crime. ii. A party seeking in camera review of evidence under the crimefraud exception must make a threshold showing that such review is appropriate. iii. BUT, crime-fraud exception only applies to seeking advice about future crime.  “I killed my wife,” is protected because it is a completed act. C. Doctor – Patient Privilege 1. A patient, whether or not a party to the action, has a privilege to refuse to disclose, and to prevent his physician from disclosing, any information acquired by the physician in confidence while attending the patient. a. This is not common law, only statutory. b. Some states only allow this privilege in civil actions. 2. This is based on policy reasons of encouraging full disclosure between physician and patient so as to aid in the effective treatment of illness. 3. The privilege belongs to the patient and if waived, the doctor might have to testify. a. Doc is authorized to assert privilege on patient‟s behalf if patient is unavailable. b. If the patient is incompetent, privilege may be asserted by his guardian. 45 4. Requirements  a. The privilege applies if the patient reasonably believes the person whom he is consulting to be a licensed physician. b. The privilege applies not only to „communications‟ between doctor and patient, but also to any information obtained by the doctor in the course of examination of treatment that would normally be regarded as confidential. c. The privilege applies only to information obtained by doctor in the course of consultation for the purpose of obtaining treatment. i. SO, when doc is appointed for examination to testify in court (not for treatment), there is NO privilege. 5. Exceptions  Sometimes limited to civil actions; principal application is in domestic relations cases. a. Personal injury suit by patient  no privilege in personal injury suit brought by plaintiff. b. Competency, guardianship, and commitment proceedings affecting the patient  no privilege in these proceedings. c. Deceased patient  Privilege does NOT apply in will contests, or validity of deed of deceased patient, or any proceeding in which all parties are claiming through the deceased patient. d. Malpractice cases  NO privilege when patient asserts claim against doctor. e. Illegal purposes  NO privilege if services of doctor were sought to assist anyone to plan or commit a crime or tort. 6. Waiver  a. By contract  contractual provision waiving privilege are upheld. b. By calling doctor to testify  patient calling doctor to testify. c. By calling patient to testify  if patient testifies, doctor can too. d. Disclosure to third party  unnecessary third party presence. D. Psychotherapist-Patient 1. The patient can refuse to disclose confidential communications between him and his psychotherapist made for the purpose of diagnosing or treating his mental or emotional condition. a. The patient can also prevent testimony by the psychotherapist or by any person participating in such diagnosis or treatment (i.e. possibly members of therapy groups, patient‟s family). 2. Privilege is also based on imperative need for confidence and trust for effective psychotherapy. a. Recognizing a privilege in this area serves important private interests. b. It also serves the public interest by facilitating treatment of mental and emotional problems generally. 46 3. The privilege applies to ANY litigation. 4. Psychotherapist need not be a licensed physician. a. Privilege applies to certified psychologists, psychiatrists, and social workers as well. 5. Broader than doctor-patient privilege – fewer exceptions: a. Commitment proceedings against patient  If the psychotherapist has determined that the patient is in need of hospitalization for mental illness, she may testify. b. Court-ordered examinations  communications by patient in the course of a court-ordered examination are NOT privileged. c. Mental condition in issue  When patient has placed his mental condition in issue (claiming insanity in a criminal case), NO privilege. E. Privilege Based on Marital Relationship 1. There are two separate marital privileges: testimonial privilege and marital confidences privilege. 2. Testimonial Privilege: The witness spouse is the holder of the privilege and cannot be compelled to testify in a criminal trial against his or her spouse. Note that the witness spouse can choose to testify (Trammel). a. The old rule was the both spouses held the privilege but that has been abrogated. This rule evolved from the Common Law of incompetancies. The husband and wife were considered one person. b. Once that privilege is invoked then the witness spouse will not testify about anything. c. They must be married at the time of the trial – if the spouses are divorced then there is no privilege. Note that this could apply to a common law marriage dependent upon the law of the state in which the district court is sitting. d. This only operates in the criminal context and only when the spouse is the defendant – the rationale is that it is unseemly to have one spouse put another spouse in jail. e. There is an exception for crimes that happen within the family (i.e. a crime against the spouse or a crime against the children) – in this context the privilege does not operate. f. Note that the prosecution may subtly coerce a witness spouse to testify (i.e. they could be offered immunity). 3. Marital Confidences Privilege: This privilege applies to confidential communications between the spouses made during the marriage - if the confidences weren‟t made during the marriage then there is no privilege. 47 a. Note that this privilege is held by both spouses. b. Even if they get divorced, as long as the confidences were made during the marriage, those confidences are privileged. c. This privilege applies in civil cases and when one spouse is not the defendant. d. Observed behavior during the marriage is not protected by the marital confidences privilege. 4. Note that even if one spouse discloses a marital confidence to a third party some courts have held that that does not waive the privilege. 5. If the communication is made in the presence of third parties then it is not privileged. 6. A spouse cannot refuse to testify if they have exculpatory information – generally the other spouse can compel them to testify. Once the witness spouse testifies about the exculpatory information, most courts will hold that privilege is waived regarding any inculpatory information. 7. If the marriage is valid in the state in which the spouses reside, then the marital privileges apply. F. Parent-Child Privilege 1. There is NO Common Law parent-child privilege. Only four states have one. 2. There is no public policy rationale to support a parent-child privilege because parents and children will confide in each other regardless of the existence of a privilege. 48 VI. WRITINGS A. The Best Evidence Rule 1. Rule 1002  Requires a party who seeks to prove the contents of a document, recording or photograph to offer in evidence the original copy of that document unless the absence of the document can be adequately explained. a. A “document” within the meaning of the rule includes a letter, contract, receipt, a book or account, a blueprint, or an X-ray. b. Under Rule 1001, “writing” includes photograph, motion picture, recordings in any form, and any other data compilation. c. Example – a doctor‟s testimony about an X-ray is inadmissible without the X-ray itself being introduced as evidence. 2. Rationale  Slight differences in written words or symbols may make a vast difference in meaning. Production of the original prevents fraud or mistake (which might occur if oral testimony or copies were used instead). 3. Best evidence rule is waived by failure to make a timely and specific objection. 4. The rule only applies to private writings. Properly authenticated copies of any official document or recorded writing may be used instead of original. Rule 1005. 5. Rule applies only when the secondary evidence is offered to prove the contents of an original writing. a. It does not apply when the writing itself is “not closely related to the controlling issues.” Rule 1004(4) b. Example: when the issue was earnings of the partnership and not the content of the books, the best evidence rule doesn‟t apply. 6. The best evidence rule applies to contents of writings (all printed and written documents of any type whatsoever). a. Where the prosecution was not trying to establish the contents of a writing, but rather what the defendant said, the rule doesn‟t apply. b. An eavesdropper can testify on a conversation recorded instead of admitting the actual recording (but worry about hearsay). 7. Under Rule 1003, a duplicate is admissible as the original unless: a. The authenticity of the original is genuinely disputed, or b. It would be unfair under the circumstances to admit the duplicate instead of the original (as when only part of the original was reproduced and the rest is necessary for cross-examination). 8. Rule 1001(4)  A duplicate includes a carbon copy, photostatic copy, microfilm reproduction, etc. 49 9. The best evidence rule does NOT apply if it is impossible or impractical to produce the “original writing” in court. a. Lost or destroyed – Rule 1104(1)  When the original writing has been lost or destroyed without the fault of the party offering the secondary evidence, the rule doesn‟t apply. b. Unobtainable – Rule 1104(2)  If the original writing is in the possession of a third person who is outside the state (and hence outside the court‟s subpoena power), the rule doesn‟t apply. i. Under the FRE, a writing is unobtainable only when it cannot be obtained “by any available judicial process or procedure.” c. Too voluminous – Rule 1106  If the original writings are so voluminous that it would be impractical to produce them in court, the trial court may hold the rule not applicable and allow secondary evidence (summaries), provided the originals are available to an adverse party. d. In possession of opponent – Rule 1004(3)  When the original writing is in control or possession of the adverse party, and he fails to produce it upon reasonable advance notice. i. Notice is usually in separate pleading – “notice to produce”. 10. When best evidence rule doesn‟t apply, and secondary evidence as to contents may be received, the majority view prefers a copy of the original (rather than oral testimony as to contents). a. The minority view (FRE) doesn‟t have any rules for preference. The proponent may use any kind of evidence. The kind of secondary evidence offered goes only to the weight, not to the admissibility of evidence. 11. Where the party against whom the written evidence is offered testifies to its contents, the best evidence rule won‟t apply. [Rule 1107] B. Authentication 1. Before any writing (or secondary evidence of its content) may be received in evidence, it must be authenticated – the proponent must offer a foundation of evidence sufficient to support a finding that the document is genuine and what it purports to be. [Rule 901] a. This is NOT required if the genuineness of the document is admitted in the pleadings or by other evidence or if the adverse party fails to raise a timely objection to lack of foundation. b. Authentication requires only enough evidence to establish a prima facie showing that the document is what it purports to be. i. If its genuineness is disputed, it is up to the jury to decide by a preponderance of the evidence. 2. A court may NOT admit a purportedly official document without testimony from the custodian of the document or any circumstantial evidence of its source. 50 3. In most cases, the proponent of the writing must produce evidence apart from the document itself to show that it is genuine and is what it purports to be. a. There is no limit on the kinds of evidence that may be used for this purpose, but rule 901(b) illustrates examples of authentication. 4. Direct evidence of authenticity  a. Testimony by subscribing witness – 901(b)(1). i. Only method at common law. ii. Under Rule 903, this is NO longer required (except to authenticate wills). b. Testimony of other witness – [901(b)(1)]. c. Opinion testimony as to handwriting identification [901(b)(2)-(3)]. i. Such evidence may be given by any person familiar with the handwriting of the supposed writer, or by expert testimony, or even by having the trier of fact compare it with some admittedly genuine document. d. Opinion testimony as to voice identification – [901(b)(5)] i. Any person familiar with the speaker‟s voice may authenticate a recording of the voice by stating her opinion as to identification. 5. Circumstantial evidence of authenticity  a. Admissions i. It may be shown that the party against whom the writing is offered has in the past either admitted its authenticity, or acted upon it as if it were authentic. b. Authentication by content – 901(b)(4) i. A writing may also be authenticated by a showing that it contains information that is unlikely to have been known to anyone other than the person who is claimed to have written it, or is written in a manner unique to that person. ii. A writing may be authenticated by evidence that it was received in response to a communication sent to the claim author. iii. Likewise, when a series of correspondence between two persons is established, and a letter is shown to fit in as a connecting link between other letters in that series, that is sufficient to authenticate the letter as being part of that series. c. Style or manner of expression – 901(b)(4) i. Identification of the writer‟s style or manner of expression (i.e. the use of certain words, phrases, abbreviations, or idioms that are shown to have been unique to the person who is claimed to have written it. 51 d. Telephone messages – 901(b)(6) i. Analogous doctrines are applied to authenticate telephone conversations. ii. Self identification is NOT required when one answers the phone. 6. Documents that are Self-Authenticating  Certain kinds of documents or records require no independent proof of authenticity. a. Merely producing one of these documents establishes prima facie its own authentication. b. The burden then shifts to the adverse party to prove that the document is not what it purports to be or otherwise is NOT authentic. c. Examples: official documents under seal, notarized documents, certified copies of public records, etc. VII. A. BURDEN OF PROOF AND PRESUMPTIONS Burden of proof has two elements: 1. Burden of persuasion  “Burden of proof” is most commonly used to describe the extent of the party‟s obligation to produce evidence to prove the facts. a. Obligation to establish by evidence a requisite degree of belief in the mind of the trier of fact. The fact finder determines whether this burden is satisfied and renders a verdict accordingly. 2. Burden of „going forward‟ (production)  A party has an obligation of introducing or going forward with probative evidence if that party bears the burden of persuasion on that issue. a. The party must come forward with enough evidence where a reasonably jury could find for the party on that element. b. The judge determines if the party with the burden of production has produced enough evidence to be in the range where a reasonable jury could find in its favor. c. Once a case goes to a jury, the burden of production drops out, and then the party has to worry if it has persuaded the jury by the burden of persuasion. B. Burden of Proof in Civil Cases: 1. The plaintiff has the burden of production on most issues. 2. Once the plaintiff has met the burden of production, the defendant has three basic options: a. Offer no evidence and rely on the plaintiff‟s failure to meet the burden of persuasion. b. Introduce evidence to contradict or undermine plaintiff‟s evidence. c. Introduce evidence of affirmative defenses. 3. If the plaintiff does not present enough evidence on an issue, there will be a directed verdict for the defendant. 4. If the plaintiff presents some evidence, the issue will go to the jury. 52 5. If the plaintiff produces an overwhelming amount of evidence, there will be a directed verdict for the plaintiff. Preponderance of the evidence  The most generally applicable burden of persuasion. a. Applies to almost all issues in civil cases, to preliminary fact determinations made by the judge, and even some issues in criminal cases such as venue and statute of limitations. b. The standard requires such evidence as, when weighed against that opposed to it, has more convincing force, and is thus more believable (i.e. more likely than not, or 51%). i. It is essentially a balancing – whichever side produces the greater weight of evidence satisfies the burden. ii. It is NOT enough that mathematically the chances somewhat favor a proposition to be proved. c. The party having the burden of persuasion must produce a preponderance of evidence to persuade the fact finder. i. Must be more than evidence equal to opposing side. 6. 7. Clear and Convincing Evidence  For certain types of issues, a proponent must present clear and convincing evidence, which is a higher burden than the preponderance of the evidence standard requires. a. Typically fraud allegations must be proven by clear and convincing. C. Presumptions Generally 1. The law may require the fact finder to make a deduction from particular facts in evidence in the absence of a contrary showing. This legal device is called a presumption. a. The presumption is the fact automatically proved by the proof of some other fact. b. Presumption is NOT evidence but a deduction that the fact finder must draw particular evidence unless contradicted. 2. Presumptions are short cuts for proving an issue because the basic fact leads to a presumed fact. a. Once the party established the basic fact, they do not have to prove the presumed fact. b. Example: letter is addressed and mailed (basic facts): letter is received (presumed fact). 3. Presumptions shift the burden of production to the other to meet or rebut the presumption. a. They are essentially a procedural tool. 4. Under Rule 104, the judge determines the preliminary question of whether the basic fact is established (by a preponderance of the evidence standard / more likely than not standard). 53 5. Reasons for presumptions: a. Consistent experience over time make the probability of the presumed fact‟s existence strong. b. Practicability (i.e. to save time). c. Public policy. d. Fairness and access to proof issues. There are a large number of presumptions and they change over time. There are different kinds of presumptions: a. Irrebuttable (conclusive) Presumption  This is a mandatory “presumption,” but in reality it is an absolute rule, not a presumption. i. These are rules of substantive law (often statutory) that cannot be contradicted by contrary evidence. ii. Example: “If a woman is pregnant, it‟s presumed to be her husband‟s” (for policy and logic reasons). iii. Two equally important (policy and logic), but conflicting, then conclusive presumptions should both be disregarded. b. Rebuttable Presumption  This is a mandatory inference unless rebutted. i. Rebuttable presumptions have the effect of placing upon the opposing party the burden of going forward with the evidence. ii. If the opposing party does so, the case goes to the fact finder. iii. There are two views as to what happens with the presumption in such situation:  Thayer Presumption  Morgan Presumption c. Permissive Inference  Is not really a presumption, but is an inference. i. Is just an adding up of the facts to make an inference. ii. This is the standard way of proof. 6. 7. D. Thayer Presumptions (a.k.a. “Bursting Bubble”): 1. A presumption is merely a preliminary assumption of fact that disappears once contrary evidence is introduced. a. Rule 301 follows this approach, except that in diversity cases, state laws are followed (302). 2. When the opponent of a presumption introduces evidence contradicting or rebutting the existence of the presumed fact, the bubble of the presumption bursts and the presumption disappears. a. Jury decides the issue as if the presumption had never existed. 54 b. Even if nobody believes the evidence admitted to rebut the presumption, its receipt is sufficient to kill any inference raised by the presumption. 3. The Common Law follows the Thayer view that the after party introduces evidence of a basic fact, presumption shifts only the burden of production and NOT the burden of persuasion as to disproving the existence of presumed fact. 4. If plaintiff produces enough evidence to prove a basic fact and defendant fails to sufficiently rebut it, the court will instruct the jury to find for the proponent on that issue or direct a finding on such point. a. Example  “Because the letter was addressed to B and mailed by A, you shall find that the letter was received by B.” 5. If the basic facts established and defendant produced counter-evidence on the basic fact: a. Example  “If you find the letter was addressed to B and mailed by A, you should find that B received the letter.” 6. If the basic fact is established and Δ produces counter-evidence rebutting the presumed fact: a. Judge can choose to give no instruction (since the presumption exploded). b. Judge can give instruction about permissive inference. “If you find the letter was addressed to B and mailed by A, you may (but are not required) to find that the letter was received by B.” E. Morgan Presumptions 1. Morgan presumption holds that a presumption is evidence, so that even if contrary evidence is presented, the fact finder can weigh the presumption against the conflicting evidence. a. Theoretically a difficult view because it allows the jury to weigh a legal conclusion against evidence. b. Morgan cares if the bubble bursts on policy grounds because the presumption is too important to disappear and therefore the burden of persuasion should shift. 2. The Morgan presumption shifts the burden of production and persuasion to the Δ once the Π produces evidence of the basic fact. 3. In most cases, there is NO difference between the two presumptions, except when evidence rebutting presumption (not basic fact) is introduced. a. When there is rebuttal for the presumption and no-contrary evidence for basic facts  “You should find B received the letter in question unless you believe its non-receipt is more probable than its receipt.” 55 F. Comparison of Morgan and Thayer (rule 30): If proponent introduces evidence that could support a finding that a presumption‟s basic fact exists: 1. Opponent‟s response: No evidence on basic or presumed fact: a. Thayer (Rule 301)  proponent entitled to directed verdict on the presumed fact. b. Morgan  same. 2. Opponent‟s response: Evidence that could support a finding that the basic fact does not exist (i.e. proof never mailed the letter): a. Thayer (Rule 301)  Jury instructed to find the presumed fact if it finds the basic fact. b. Morgan  same. 3. Opponent‟s response: Evidence that contradicts the existence of the presumed fact (i.e. proof never got letter): a. Thayer (Rule 301)  No jury instruction requiring a finding; possible instruction on allowable inference from the Π‟s evidence. b. Morgan  Jury instructed to find the presumed fact UNLESS it is persuaded that the presumed fact does NOT exist. 4. Thayer‟s approach (“bursting bubble”) shifts the burden of production but NOT the burden of persuasion. G. Presumptions in Criminal Cases 1. Three underlying constitutional principles: a. Prosecution must bear the burden of proof (beyond a reasonable doubt) on every element of the crime. i. Burden of proof can NOT be shifted to the Δ for any element of the crime. b. NO directed verdicts for prosecution are allowed. c. Δ has a right not to testify. i. Burden of production cannot be shifted when it would impinge on the Δ‟s 5th Amendment rights. 2. But, the government can amend the statute and define the criminal law however it wants. 3. Mandatory presumptions are unconstitutional (Ulster v. Allen) 4. Permissive inferences are constitutional (Ulster) a. All this really amounts to is a jury instruction to help guide the jury‟s logic. 5. Two-step process for presumptions in criminal cases: a. The presumption must be rational. There must be a “reasonable nexus” or a “rational connection” between the basic fact(s) and the presumed fact. b. See if the proposition is “more likely than not” in the particular case. 56 6. Jury instructions should be clear to use permissive language: a. Example: Jury should consider all evidence about whether the  was under the influence of alcohol in such a way to impair him, including his blood alcohol level. If you find he was under the influence of alcohol, you are permitted to infer from his blood alcohol level that he was so impaired. 57