Evidence Outline

EVIDENCE - OUTLINE I. THE JUDICIAL FUNCTION APPELLATE REVIEW (1) Standard of Review a. Factual Findings i. Must be clearly erroneous; otherwise, appellate court will give full discretion to trial court’s findings b/c they had witnesses before them, etc. b. Discretionary rulings – abuse of discretion i. Judge must have applied incorrect law, thus, in exercising his or her discretion, applies the wrong law; therefore judge has no authority to make the decision; OR ii. Judge must have made an unreasonable choice 1. trial judge’s discretion was completely incorrect (for instance, trial judge may choose A, B, or C, but he chooses D); in other words, the judge given the evidence presented should have had been led to only one conclusion iii. in Chappel, supreme court held that Evidentiary rulings are reviewed under the discretionary rulings standard of review c. Legal Rulings – de novo review i. No deference to trial court (2) Favoring Affirmance a. The system favors affirmance of judgments, imposing what amounts to a double standard operating in favor of the trial judge and against trial counsel i. ―Where the trial judge sustains an objection or accepts an offer of proof on the ground on the wrong ground (a ground later shown inapplicable or erroneous), judge‟s ruling will likely be sustained on appeal if some other ground, though unmentioned below, supports judge‟s action‖ DOCTRINES OF AFFIRMACE a. Cumulative Evidence Doctrine– appellate court supports affirming the judgment of the trial court despite errors in admitting/excluding evidence, because so much other proof was properly received on the same point that the jury would likely have found against Δ even if the judge had ruled correctly on admitting/excluding evidence b. Curative Instruction – error may avoid reversal by means of instruction to jury. FRE 105 i. Curative / Limiting Instruction may be counterproductive by emphasizing the point that is being asked of the jury to forget; ii. An error is cured by the limiting instruction which instructs the jury to NOT consider the evidence as proof for a purpose other than for which the evidence is being offered. 1. verdict may cure the error by finding in favor of person who error would adversely affect 2. instruction may cure exclusion of evidence when judge implies in his instructions that the issue has been resolved in favor of the party who offered the evidence c. Overwhelming Evidence Doctrine – a reviewing court may conclude that evidence was properly admitted and supports the judgment below overwhelmingly, and generally affirms the ruling, even in the face of errors of admitting/excluding evidence that might otherwise be considered serious. The evidence was such as to invite a direct verdict. (3) Was error properly preserved for appeal? (except where Plain Error occurs) a. Was Objection or Offer of Proof preserved for record i. Objections must be made on a specific ground; ii. Attorney should object on multiple grounds 1. ―An objection on particular grounds suffices only to preserve errors made on those very grounds. If appellant objected that certain testimony violates the hearsay doctrine, he can prevail on appeal only if the testimony did offend the hearsay doctrine (as well as outcome). He might argue on appeal that the testimony also offended the rule against proving conduct by character evidence, but failing to raise this ground in his original objection waived his right to assert it on appeal‖ (p. 47) iii. ONLY ONE BITE AT THE APPLE: 1. Appellate judges hold your feet to the fire; can only appeal arguments already made to trial judge – NO NEW ARGUMENTS iv. Motion in Limine – a procedural device, sometimes authorized by statute, that has existed in c/l in all jurisdictions, which provides a chance for both parties to brief and important evidence issue and present more elaborate argument than is possible during trial; 1. No need to object/offer proof where the judge has made a ruling regarding the evidence in question before trial; Error harmless unless it affects a Substantial Right of the party affected Types of Error a. Harmless – an error / mistake that probably did NOT affect the judgment b. Reversible – an error that probably did affect the judgment c. Plain Error – in the estimation of the reviewing court warrants relief on appeal even though the appellant failed at trail to take the steps usually necessary to preserve its rights, i.e., objecting or making an offer of proof; i. Plain error is so egregious and awful that allowing the judgment to stand rises to the level of a miscarriage of justice ii. Must be obvious 1. Trial judge should have known better even if lawyer did not 2. A slim hope for appealing attorneys iii. Greater certainty than reversible error that outcome was affected at trial d. Constitutional – in criminal cases, a mistake by trial court in admitting evidence for the prosecution that should have been excluded under the Constitution. Harmless v. Reversible? (4) The question in every case is whether the evidence erroneously admitted probably affected the outcome or whether evidence erroneously excluded probably would have affected the outcome. -1- EVIDENCE - OUTLINE FRE 101 – Scope These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in FRE 1101. FRE 102 – Purpose and construction These rules shall be construed to (1) secure fairness in administration, (2) elimination of unjustifiable expense and delay, AND (3) promotion of growth and development of the law of evidence (4) to the end that the truth may be ascertained and proceedings justly determined. FRE 103 – Rulings on evidence (a) Effect of erroneous ruling: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, AND (1) Objection In case the ruling is one admitting evidence, (i) a timely objection or motion to strike (ii) appears of record, (iii) stating the specific ground of objection, if the specific ground was not apparent from the context; OR (2) Offer of proof In case the ruling is one excluding evidence, (i) the substance of the evidence was (ii) made known to the court by offer OR (iii) was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Record of offer and ruling The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. Hearing of jury In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. o Motions in limine made before trial. Judge makes discretionary ruling outside of jury’s hearing and thus protecting Δ from substantial prejudice. See Old Chief Plain Error Nothing in this rule precludes taking notice of plain errors (1) affecting substantial rights (2) although they were not brought to the attention of the court. (b) (c) (d) FRE 104 – Preliminary questions (a) Questions of admissibility generally (1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). (2) In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact (1) When the relevancy of evidence depends upon the fulfillment of a condition of fact, (2) the court shall admit it upon, or subject to, (3) the introduction of evidence sufficient to support a finding of the fulfillment of the condition.  Judge performs a screening function as to admission of conditional evidence  Where different answers are reasonable, jury decides whether condition is satisfied (c) Hearing of jury (1) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. (2) Hearings on other preliminary matters shall be so conducted (i) when the interests of justice require, OR (ii) when an accused is a witness and so requests. (d) Testimony by accused The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.  Cross examination limited to scope of direct unless judge grants permission to go outside scope of direct. (e) Weight and credibility This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. -2- EVIDENCE - OUTLINE FRE 105 – Limited admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.  Limited instruction given to evidence that is highly probative to one aspect of case yet highly prejudicial to another aspect of the case.  Opper v.United States, 348 US 84, 95 (1954), Ct. states that jury is presumed to follow the trial judge‟s instructions, where they are clear and jury can be reasonably expected to follow them; otherwise, jury system makes little sense. (p. 83-84) o However, see Bruton v. United States, (1968) where evidence is admissions by co-conspirators, limiting instructions are insufficient to protect the Δs from unfair/substantial prejudice b/c prosecutor could sever and proceed separately against the various defendants. FRE 106 – Remainder of or related writings or recorded statements (Rule of Completeness) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.  Rule of Completeness states that while a Party has a right to present evidence in his own manner and in which ever order he chooses, the adverse party (party against whom the evidence is being offered), to prevent the written/recorded statement from being taken out of context (where evidence is written/recorded) can request the judge to require the proponent of written/recorded evidence to introduce another part of the written/recorded statement to be considered by jury at same time. o Normally court allows the proponent of evidence to introduce his evidence in any manner he chooses, but Ct. here is going against this policy, where the failure to do so would confusion the jury such that it could NOT later be remedied by counter evidence offered during Case In Rebuttal.  Evidence may also be presented during case-in-rebuttal ORDER OF PROOF (1) Π (or prosecutor) present his case-in-chief, then rests; (2) Δ presents his case-in-chief, then rests; (3) Π (or prosecutor) presents his case-in-rebuttal; (4) Δ presents his case-in-rebuttal; (5) Each side present further cases-in-rebuttal (again sometimes called cases-in-rejoinder) ORDER OF EXAMINATION (1) Direct examination by the calling party; (2) Cross-examination by the adverse party; (3) Redirect examination by the calling party; (4) Re-cross by the adverse party; (5) Further redirect and re-cross may be necessary; -3- EVIDENCE - OUTLINE II. RELEVANCE FRE 401 – Definition of „„relevant evidence‟‟ "Relevant evidence" means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.   McCormick on Evidence § 185, (1984): “A brick is not wall” (each brick is not enough, but several bricks would be) Evidence of Flight: Supreme Court has held that evidence of flight by the accused is competent evidence which has a tendency to establish guilt, but such evidence is insufficient to prove guilt or create a presumption of guilty. The judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or refute, is consequential within the meaning of FRE 401 o Only a judge is qualified to decide this point, for it turns on substantive and procedural rules, which establish and limit the issues (p. 87) Jury determines the weight given to admitted, relevant evidence Evidence need not be in dispute to be relevant;    FRE 402 – Relevant evidence generally admissible; irrelevant evidence inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. FRE 403 – Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time Although relevant, evidence may be excluded if its probative value is substantially outweighed (1) by the danger of unfair prejudice, OR (2) confusion of the issues, OR (3) misleading the jury, OR (4) by considerations of undue delay, OR (5) waste of time, OR (6) needless presentation of cumulative evidence.  Shortness of Life – Courts may limit # of witnesses for a given point; judge may exclude duplicative evidence; judges may also inssit that trial continue once it has begun and deny requests for time to locate new witnesses;  FRE 403 favors admissibility;  Probative value weakened substantially when issue is NOT contested by in case (See Chappel) or when issue in contest is stipulated to by party against (See Old Chief) Old Chief v. United States (I), US Supreme Court (1997) Appeal from conviction for possession of a firearm. Old Chief had a previous felony conviction. Δ offered to stipulate to previous felony conviction. Prosecutor sought to introduce guilty plea which indicated similar, previous crime. RULES: Relevant evidence may be excluded when its risk of unfair prejudice substantially outweighs the probative value, in view of the availability of alternative evidence on the same point.  FRE 403 favors admissibility; HOLDING Ct. held that since a proffer to stipulate was made by Δ; the evidence substantially prejudiced Δ b/c jury’s hearing would undoubtedly lead to bad character reasoning. Probative value was weak b/c stipulation proved same point. State v. Chapple, AZ Supreme Court (1983) Appeal of conviction for 1st degree murder. Δ contests his identification by two eyewitnesses. Drunk knife fight case. Gruesome photos were admitted which did NOT prove anything as to eyewitness identification. RULES: Inflammatory evidence SHOULD NOT be admitted if NOT probative of any contested issue in the case.  Evidence not inadmissible solely b/c repugnant; murder is repugnant. Repugnancy is NOT the test (p. 79,FN 3). HOLDING Ct. found that evidence should have been excluded b/c not probative of any contested issue in the case. Probative value weakened b/c issue NOT being contested. Old Chief v. United States (II), US Supreme Court (1997) Appeal from charge of being a felon in possession of a firearm and assault with a dangerous weapon. Old Chief Δ offered to stipulate to previous felony conviction rather than admitting full record of prior offence. Prosecutor sought to introduce guilty plea which indicated similar, previous crime. RULES: In determining whether to admit evidence under the balancing test provided for by FRE 403, the court must determine whether the a substantial risk of unfair prejudice outweighs the probative value of the evidence sought to be admitted in light of the evidentiary record.  Objecting party has burden of proof to show that substantial prejudice outweighs probative value, i.e., admissibility; HOLDING Ct. abused discretion b/c risk of prejudice was substantially increased and probative value substantially lessened when Old Chief Δ proffered to stipulate to prior felony conviction, or Count #3. NOTE: Holding in Old Chief is clear that it is Limited to felon-in-possession cases. Ct. determined an issue of federal evidence law, and state courts are NOT bound by it, but most states have adopted similar rules. (Pg. 81, FN 7) People v. Collins, (1968) Probabilistic Proof Appeal from conviction of 2nd degree robbery. Mathematical probability 1/12M that he was not the robber. RULES: Applications of mathematical techniques in the proof of facts in a criminal case must be critically examined in view of the substantial unfairness to the Δ which may result. NOTE: In civil cases, probabilistic proof has been admitted in Tort cases. Criminal cases have a ―beyond a reasonable doubt‖ standard of proof which cannot be satisfied by probabilistic proof. -4- EVIDENCE - OUTLINE III. HEARSAY FRE 801 – Definitions RULE 801(a) + RULE 801(b) + RULE 801(c) statement + declarant + hearsay a. ―A‖ for ―A‖ – statement offered to prove its substantive truth = HEARSAY STATEMENT, thus evidence inadmissible = HEARSAY STATEMENT Statement – is (1) an oral or written assertion OR (2) non-verbal assertive conduct of a person, if it is intended by the person as an assertion.  Hearsay is limited to what a person said, but sometimes they can say something with a gesture, usu. where the conduct is intended as a short form for words.  Nonverbal Assertive Conduct are only assertions if they are intended to be one, AND o Burden is on the party claiming that the intention existed (tendency is to admit b/c if intention exists, then it is hearsay and would be inadmissible) o not about what the witness thought, but what the declarant thought and intended o Nonverbal conduct that is unassertive is not objectionable as hearsay (maybe objectionable as something else) and that evidence will be admitted b/c while it may be fabricated it is less likely to be fabricated b/c of it is nonverbal and nonassertive nature; therefore, the testimony is less dangerous and admitted to prove the existence of the belief of the declarant in acting the way he did (ACN p.185-186)  Irrelevant evidence is always inadmissible (doesn’t matter if hearsay or NOT). Relevance trumps hearsay. Cain v. George, (1969) ―Negative Hearsay‖ Hotel owners show that the heater did NOT kill child b/c heater was working properly. RULES: FRE 801(a) requires a statement made by a declarant to assert something. Thus, proof of failure to complaint (lack of assertive conduct), is non-verbal non-assertive conduct, is NOT hearsay. NOT hearsay where evidence derives its value solely from the credit to be given to th witnesses themselves and is NOT dependent upon the veracity or competency of other persons. HOLDING: Ct. found that evidence of failure to complaint by previous tenants was admissible to prove that the heater was acting properly. Evidence is NOT hearsay b/c based on witnesses/owners personal knowledge, not stmt by decl. b. c. Declarant – A ―declarant‖ is a person who makes a statement  machines, animals, clocks, radar guns, or thermometer does not qualify under 801(b) b/c lack of (person); o Reliability of machine evidence requires foundation evidence to show that the evidence was properly calibrated b/c the court could exclude such evidence inadmissible under FRE 401 or FRE 403. o Scoreboard or computer notes are being typed by a person into the machine; OJ Simpson dog barking o Proof of canine tracking and identification is usually admissible (p. 125). See United States v. McNeice; HOWEVER, some cours will hold that dogs/animals fail witness competency tests (oath, sworn, X) Hearsay – a ―Hearsay‖ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. U.S. v. Check, (1978) ―Indirect Hearsay‖ Under cover police offer (Spinelli) testifies at trial as to only his half of conversation with the liaison (Cali) for Check the drug dealer. Very clear that testimony is being offered to prove that Check sells drugs. RULES: The hearsay rule cannot be circumvented by framing testimony so as to suggest what an unavailable declarant said, i.e., through the use of indirect hearsay. It makes no difference if what witness is testifying to statement that was previously made in-court or out-ofcourt, if statement is at all offered for substantive truth of what is said, then it is hearsay. HOLDING: Ct. holds that Spinelli’s testimony should have been excluded b/c it is hearsay. Out of court statements by declarant (Cali) being offered to prove ―A‖ for ―A‖ (that check is a drug dealer). Transparent attempt to incorporate the officers testimony who did not testify at trial. d. Statements which are NOT HEARSAY – A statement is not hearsay if: 1. Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is A. inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, OR B. consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, OR C. one of identification of a person made after perceiving the person; OR 2. Admission by party-opponent – The statement is offered against a party and is A. the party's own statement, in either an individual or a representative capacity OR B. statement of which the party has manifested an adoption or belief in its truth, OR C. statement by a person authorized by the party to make a statement concerning the subject, OR D. 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. statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). -5- EVIDENCE - OUTLINE IV. NON-HEARSAY 1. ―A‖ for ―B‖ – statement offered to prove that it was truly said A PRIOR INCONSISTENT STATEMENT by a witness offered to Impeach the Declarant/Witness’s credibility a. Prior Inconsistent Statement i. Witness/Declarant says ―A‖ one day and ―Not A‖ on another day b. Made by declarant/witness c. Statement offered to show that words were truly said (―A‖ for ―B‖) not for substantive truth (―A‖ for ―A‖) i. Statement is irrespective of statement’s substantive truth and cannot be offered ―A‖ for ―A‖ only that W truly said ―A‖, thus ―A‖ for impeachment purposes (―B‖); ii. Prior statement used to impeach Declarant/Witness must be made/said by Declarant/Witness; 1. when the prior statement not made by W can only be used to impeach W if the statement is substantively true, and therefore hearsay d. NON-Hearsay b/c statement is being offered to impeach. NOTE: Impeachment is not the exception! A statement by a Declarant that constitutes a VERBAL ACT or Verbal Part of an Act by the Declarant a. a/k/a ―Words of independent legal significance‖ or ―Operative facts‖ b. An act that through law, custom or logic can only be done by words c. VERBAL ACT NOT OFFERED FOR SUBSTANTIVE TRUTH, only that WORDS WERE TRULY SAID (―A‖  ―B‖), where ―B‖ is almost exactly ―A‖ but what makes it NOT HEARSAY is that the MAGIC WORDS (law, custom, or logic where words constitute an act) were MAGICALLY SPOKEN BY A MAGICAL PERSON (declarant) IN A MAGICAL SETTING where the words had LEGAL SIGNIFICANCE, so there is no other way to show that that an oral contractual acceptance was ORALLY ACCEPTED i. Verbal act is created at the moment when the Declarant (magic person) actually says the MAGIC words, not later b/c that is the repetition of the MAGIC words. 1. i.e., offer (verbal Legal Act) and acceptance (verbal act) of a contract; a valid gift OR marriage contract ii. NO OTHER WAY TO make a contract offer, enter into marriage, obtain permission to borrow book WITHOUT A VERBAL EXPRESSION. How else can it be proven other than the VERBAL ACT? iii. Repetition of a historical fact is NOT A VERBAL ACT; (magic person must say magic words, no one else) iv. Anyone can repeat the statement (verbal act) so long as they heard it and it is not hearsay if those words are NOT being offered “A”  “A” v. Substantive Truth of VERBAL ACT must be proven through some other means d. Verbal Part of a Physical Act i. Some acts are physical (handing someone $20) but if you want to give meaning to it as to what it was for, that is what’s considered the VERBAL PART OF THE ACT A statement by a declarant that is offered to show the EFFECT ON THE LISTENER/reader of the declarant’s statement a. Statement offerd NOT to show that statemet is substantivle true, but to show that the statement was hear or read by another (NOT declarant) and to explain why the listener/reader acted as he/she did after hearing the declarant’s statement b. the statement comes in with a limiting instruction 2. 3. A statement by a declarant that is offered as CIRCUMSTANTIAL EVIDENCE OF THE DECLARANT‟S STATE OF MIND a. Statement by declarant is only admissible as circumstantial evidence of the declarant’s state of mind (feelings) and is NOT admissible to prove the underlying facts contained in the statement. i. whether the statement shows the mental state Regardless of the truth of the statement ii. The Best evidence of how the declarant feels is the declarant’s own statements b. Declarant’s state of mind must be a legitimate issue in the case i. Otherwise, this NON-hearsay category could be easily manipulated to admit inadmissible hearsay evidence under the guise of circumstantial evidence of declarant’s state of mind. c. FRE 803(3) HEARSAY EXCEPTION: See Betts i. 803(3) offers a direct statement of declarant’s state of mind to prove the substantive truth of statement, i.e. hearsay ii. The distinction is usually disregarded in the cases because the statement will usually be admissible either under the exception to the hearsay rule or under the theory that it is not hearsay.‖ Betts v. Betts, Custody dispute. Little girl states that step-dad killed brother, hurts mommy and will hurt her too. 803(2) or 803(3) may apply. RULES: There is a distinction between NON-HEARSAY STATEMENTS which circumstantially indicate a present state of mind Regardless of their truth, and HEARSAY STATEMENTS which indicate a state of mind Because of their truth. The state of mind must be relevant in either instance. HOLDING: Ct. holds that since NON-hearsay statement is being offered ―A‖ for ―B‖ hearsay exceptions is irrelevant. Substantive truth of beliefs are irrelevant for admitting little girl’s statements under NON-hearsay doctrine. 4. 5. A statement that constitutes a VERBAL OBJECT a. A Statement that is comprised of identifying words on an OBJECT b. Images / Legend, i.e., the logo on a car, a sign on a building, the label on a product, the printing on a company’s truck, the name on a suitcase, the letterhead on a company’s stationery, ETC.! i. The declarant is the person who created the logo, pin, sweatshirt, t-shirt with statement. ii. Statements that appear to be hearsay but are actually offered to prove something other than what is asserted in the statement (NON-hearsay) exceptions c. Describes a physical reality. A description of situation is NOT hearsay. When statement (logo) being offered just as a description, it is a VERBAL OBJECT, but when statement (logo) is being offered to prove substantive truth, then its HEARSAY If the inscription is affixed in the course of business to indicate ownership, control or origin, the inscription is self-authenticating under FRE 902(7); Otherwise, it would be HEARSAY b/c declarant wrote ―Poland Spring‖ on bottle. Absent FRE 902(7), proponent would require 2 witnesses. One witness describes the exact, physical reality of the bottle and the other establishes that Poland Spring bottles advertise/market the exact bottle previously described. FRE 902(7) removes this excessive testimony. NOTE: -6- EVIDENCE - OUTLINE V. NOT-HEARSAY EXCEPTIONS ―A‖ for ―A‖ – Not-Hearsay by Statutory Magic FRE 801(d)(1)(A) – Prior Inconsistent Statements 1. Declarant testifies at Trial 2. Subject to Cross-Examination concerning statement a. Not required to be cross-examined about the event, just must cross-examinable about the statement 3. Statement is Inconsistent a. Her statement at trial does not corroborate her prior statement b. Memory loss is inconsistent (in her earlier statement to police she identified one attacker, but at trial she didn’t remember beating, so statement at trial and prior statement were inconsistent);Knowing and not-knowing is inconsistent 4. Under oath subject to penalty of perjury 5. at a trial, hearing, deposition, or other proceeding  Originally, #4 or #5 did not exist, Supreme Ct. agreed that nothing more was req’d, House req’d more triggers. The ACN later added #4 and #5 requirements. NOT all fed’l courts have this reqm’t. NJ does not require them  Inconsistency can be evasive answers at trial, silence or changes in positions, or inconsistent answers caused by memory change/loss o Grand Jury admissible where witness has memory loss at trial  Witness may still be subject to cross to effectively fulfill the 801(d)(1)(A) reqmts despite memory loss State v. Smith, (1982) Turn Coat Witness Conlin, assault victim, made a confession at the police precinct before a notary, against her pimp. At trail, Conlin makes a statement different from her written confession saying that Gomez beat her, not her pimp. RULES: FRE 801(d)(1)(A) – inconsistent prior testimony made under oath at other proceeding. A sworn statement inconsistent wit courtroom testimony may be substantively introduced if reliable. Proceeding is defined broadly but limited to those situations that are similar to actual proceedings. Reliability/Trustworthiness is the key. Conlin made statement while still fresh in her mind so more reliable and statement before notary, NOW subject to cross, at judicial building, before police officer, under penalty of perjury is sufficiently similar to be ―other proceeding.‖ HOLDING: FRE 801(d)(1)(B) – Prior Consistent Statements To Refute Fabrication 1. Declarant Testified at Trial 2. Subject to Cross-Examination concerning statement a. Not required to be cross-examined about the event, just must be cross-examinable about the statement that little girl said, not about the abuse 3. Consistent with declarant’s testimony; AND a. Little girl has made statements to mother, babysitter, pediatrician, social worker; 4. Offered to rebut a. Opposing attorney must open the door by implying that declarant is fabricating story; i. No one knows prosecutor has seven statements inside his folder and he cannot do anything with them, b/c they are ―A‖ for ―A‖; he must wait; 1. Prosecutor wants ―A‖ for ―A‖ 2. Pediatrician cannot get up say that it is daddy; Social worker only knows what little girl said 5. An express or implied charge against the declarant of RECENT FABRICATION or IMPROPER INFLUENCE OR MOTIVE 6. Statement must be made Pre-Motive charge a. Identify moment that consistent statement was made; difficult but NOT more difficult than rebutting when charge of fabrication took place; i. TEMPORAL REQMT: DOES NOT APPEAR IN FRE RULE, but Sup. Ct. does require that: b. if statement is made prior to charge of fabrication, declarant’s credibility is increased Tome v. United States Daughter makes statements that Daddy treats her like wife. Δs atty opens door by accusing little girl of not wanting to return to live with father. Implied charge of fabrication. Stmt to social worker,dr., mother, etc. admissible under FRE 801(d)(1)(B) to REBUTT charge of fabrication/improper motive; RULES: C/L allowed prior consistent, pre-motive charge stmts to be admitted to rebut. FRE 801(d)(1)(B) has an implied, pre-motive requirement that the statement be made before the express/implied charge of fabrication/improper motive Evidence admitted under FRE 801(d)(1)(B) may also be used for substantive purposes after they are admitted to rebut the existence of improper influence/ improper motive/ or recent fabrication. HOLDING: Ct. found that pre-motive requirement for FRE 801(d)(1)(B) was implied by ACN which intended to carry over c/l reqmt of statement being made before the improper motive / fabrication charge was made. Indicates veracity and reliability of statement. -7- EVIDENCE - OUTLINE FRE 801(d)(1)(C) – Prior Statements of Identification 1. Declarant 2. Testified at Trial 3. Subject to Cross-Examination concerning statement a. Not required to be cross-examined about the event, just must be cross-examinable about the statement 4. Statement is one of identification; 5. Made of a person after perceiving a person;  FRE 801(d)(1)(C) permits substantive introduction of prior identifications. “A” for “A”  Exception stands independently of other exceptions: o Has NO oath requirement; no “in proceedings” requirement State v. Motta, (1983) HI case with composite sketch as stmt. Artist is declarant. Wendy picks out Δ by photo. RULES: Hearsay exceptions only apply to hearsay statements. A composite sketch is NOT inadmissible hearsay. FRE 801(d)(1)(C) permits substantive introduction of prior identifications. “A” for “A” Ct. finds that composite sketch/artistic rendering is a short form of words. Iwashita and artists were available. Evidence admitted to prove that Δ was person who robbed Iwashita. HOLDING: -8- EVIDENCE - OUTLINE ADMISSIONS DOCTRINE Admissions by party opponent are excluded as from category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. They lack a guarantee of trustworthiness FRE 801(d)(2)(A) – Individual Admissions by Party Opponents 1. Statement made by a Party in either, (i) an individual capacity (ii) a representative capacity (i.e., a person chargeable to that party); AND 2. Offered against that party  No cross-examination requirement  No ―against interest‖ requirement (p. 186)  Admission must be voluntary; involuntary confessions are barred under 5th Amendment o Mental incapacity, medically critical condition, minor  Must come out of mouth of adversary, BUT Adversary need not testify  Absolute right to testify what is coming out of adversary’s mouth;  Guilty pleas are typically excluded under fed’l rules, but may be admitted under state rules; no lo contendere Bruton v. United States, (1968) Evans arrested and orally confesses that he and Bruton committed robbery. Joint trial. Limiting instruction to jury that confession was substantive evidence as to Evans, but inadmissible as to Bruton. Both are convicted. Evans overturned. Bruton’s affirmed due to limiting instruction. RULES: FRE 801(d)(2)(A) – Individual Admissions by Party Opponents. Statement by someone chargeable to that party. HOLDING: Ct. overturns Bruton’s conviction b/c he did NOT have opportunity to confront witness against him. Further, substantial risk of prejudice incurred when Evans confession was admitted with limiting instruction. Hearsay rule must be strictly applied b/c there is a lack of reliability with confession of co-defendant. FRE 801(d)(2)(B) –Admissions by Party Opponents through Manifestation of Affirmation / Adoption through Silence The statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth; (1) a statement by someone else made in party’s presence; AND (2) party adopted the statement by some affirmation; OR (3) party was silent (did not deny) as to the statement made in his presence; AND (4) under the totality of the circumstances, reasonable, probable human behavior would have been that a reasonable person would have denied the statement United States v. Hoosier, (1976) Girlfriends statements made in Δ presence which were NOT denied. RULES: Failure to deny is tacit adoption under the totality of the circumstances test. Whether a reasonable person in like or similar circumstances would have denied that statement if it were not true? ACN (p. 192) HOLDING: Ct. finds that Hoosier tacitly adopted his girlfriend’s statements when he failed to deny them. However, a statement in Δ/party’s presence is NOT ENOUGH, nor is his silence. Court would look to probably human behavior. Doyle v. Ohio, (1976) Doyle was silent after Miranda warnings and did NOT give police any story until trial. Use silence as admission of guilt at trial RULES: No inference of guilt may arise where arrested person chooses to exercise his Miranda warnings. -9- EVIDENCE - OUTLINE FRE 801(d)(2)(C) –Admissions by Party Opponents by Authorized Person Admission by party-opponent where the statement is offered against a party and is a statement by a person authorized by the party to make a statement concerning the subject; 1. statement by party 2. offered against a party 3. statement by a person authorized by party to make statement concerning subject  statements of authorization is insufficient to establish proper authority; must be proven by other evidence FRE 801(d)(2)(D) –Admissions by Party Opponents by Agent or EE The statement is offered against a party and is 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; 1. a statement by the party's agent or servant; AND 2. concerning a matter within the scope of the agency or employment; AND 3. made during the existence of the relationship;  statement made by EE, within scope of Empmt and during empmt must be proven by other evidence; Maldhandt v. Wild Canid, (1978) Sophia (wolf) bit a child. Statement made to ER. Mr. Poos statement satisfies FRE 801(d)(2)(D) RULES: No implied requirement under 801(d)(2)(D) that declarant have personal knowledge of the facts underlying his stmt. HOLDING: Mr. Poos statement satisfies all three reqmts of FRE 801(d)(2)(D), but under FRE 801(d)(2)(C) statement in minutes may be admissible against Wild Canid ER, but NOT against Mr. Poos. He is NOT spokesperson. (1) employed by Wild Canid; (2) He was in charge of wolf; (3) statement made while still working for ER; FRE 801(d)(2)(E) –Admissions by Party Opponents by Co-Conspirator The statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 1. statement by co-conspirator a. Not a statement TO A Co-conspirator, but by a co-conspirator; thus statement can be made to anyone b. Fact of conspiracy, etc. must be proven by other evidence 2. during course of conspiracy a. Conspiracy ends when conspirators are arrested; b. Supreme Ct. has been emphatic, that statements made during the concealment phase of the conspiracy are not within the exception 3. in furtherance of the conspiracy  No requirement that conspiracy be a charge against Δ.  Bourjaily Amendments were made to 801(d)(2)(E) –ACN (p. 194) –Amendment in accordance with existing practice Bourjaily v. United States Meet me in parking lot with money. Bourjaily does exactly as told. Sting operation catches him. RULES: All matters of evidence have a preponderance of the evidence (51%) standard; predicate facts must be established by a preponderance of the evidence prior to requesting admissibility Court must considered in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question U.S. v. James, 590 F.2d 575, *582 (C.A.Ga., 1979) (p. 223) Both because of the "danger" to the defendant if the statement is not connected and because of the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to obviate such danger, we conclude that the present procedure warrants the statement of a preferred order of proof in such a case. The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator. If it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected up. Court may consider the contents of a co-conspirator‟s statement in determining “the existence of the Conspiracy and the participation therein of the declarant and the party against whom the statement is offered” Contents of the declarant‟s statement do NOT ALONE suffice to establish a conspiracy in which the declarant and the defendant participated HOLDING: Statements sought to be introduced have high probative value as to existence of conspiracy and may be used to determine whether conspiracy existed, usu. requires additional evidence. - 10 - EVIDENCE - OUTLINE FRE 802 – Hearsay Rule Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. VI. HEARSAY EXCEPTIONS –FRE 803 – Hearsay exceptions; availability of declarant immaterial Under FRE 803, these exceptions, the circumstances provide an indicia of trustworthiness, in other words, the statements are such that there exist circumstantial guarantees of trustworthiness; FRE 803(1) – Present Sense Impression 1. A statement describing or explaining a. NARROWER than FRE 803(2) b/c statement must be describing/explaining event 2. an event or a condition a. BROADER b/c 803(2) requires a ―startling‖ event 3. made while the declarant was perceiving the event or condition or immediately thereafter a. time requirement is shorter b/c statement must describe and event and be made while perception is occurring or immediately thereafter i. b/c it is more credible 1. no risk of memory loss 2. less opportunity for fabrication b. previously made statements outside of court is NOT THE PREFERENCE, here the requirements tend to guarantee credibility i. we normally want people to describe live what happened, not proving things by an earlier made statement offered ―A‖ for ―A‖ 4. Without opportunity to reflect or fabricate (per Iron Shell) Nuttall v. Reading Co., US, Ct. Appeals 3d Cir, 235 F2d 546 (1956) In Nuttall, Mrs. Nuttall overhears the converastion, hears there argument, and then husband turns and complains about being forced to going to work. Husband characterized Marquette’s statement at the very moment of the conversation and after he hung up the phone. Statements made to wife, contemporaneously or immediately thereafter, there is no opportunity for loss of memory and no opportunity for fabrication. Federal ER Liability Act does not make ER liable for having a neurotic EE. ER is only liable if widow can prove that ER forced the EE into work. RULES: If Π in this case can prove that management forced a sick employee of whose illness they knew or should have known into work or which he was unfitted because of his condition, a case is made out for the jury under the Fed‟l ER‟s Liability Act The perception of the event is NOT SUFFICIENT (See Notes #1 & #2) HOLDING: Mrs. Nuttall really needs her statements to come in ―A‖ for ―A.‖ Ct. holds that Key to Nuttall, requires that there be NO OPPORTUNITY FOR REFLECTION OR FABRICATION. See FN #10, A declarant who writes out statement probably does NOT have the present sense impression or excited utterance, b/c of opportunity/inherent reqmt to reflect. - 11 - EVIDENCE - OUTLINE FRE 803(2) – Excited Utterance 1. Statement relating to a. BROADER than FRE 803(1) b/c statement only has to relate to event or condition 2. Startling Event or Condition a. NARROWER b/c 803(1) requires only an event, nothing ―startling‖ 3. made while the declarant was under the stress of excitement caused by the event or condition a. BROADER b/c statement time requirement requires declarant to be under stress, not immediate b. FRE 803(2) does not require declarant to be a witness 4. Without opportunity to reflect or fabricate (per Iron Shell) ADVISORY COMMITTEE NOTES (p. 201)  most significant practical difference btw FRE 803(1) and (2) is the time lapse allowable between the event and statement  FRE 803(1), the theory is that substantial contemporaneity of the event and statement negative the likelihood of deliberate or conscious deliberation  FRE 803(2), the theory is that circumstances may produce a condition excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.  Spontaneity is the key factor in each instances, though arrived by somewhat different routes  Arguments against exceptions states that excited events hinder observation United States v. Iron Shell, 633 F2d 77 (1980) Iron Shell, drunk and attempts to rape 9 year old girl. Jury convicts him and Δ appeals. Iron Shell, Δ argues that logic of rule does not stand b/c Lucy had too much time to reflect and deliberate (only argument). 9 year old girl over the excitement in 60 minutes? Prosecutor argues that her senses are still assaulted and it is not the product of fabrication. RULES: In order to find that FRE 803(2) applies, it must appear that the declarant‟s condition at the time was such that the statement was spontaneous, excited, impulsive, rather than the product of reflection and deliberation Test is whether or not she has had an opportunity to reflect or deliberate SEVEN FACTORS to consider in determining whether the offered testimony is within 803(2) exception: 1. the lapse of time btw the startling event and the out-of-court statement although relevant is not dispositive in the application 2. made in response to inquiry 3. age of the declarant 4. the physical condition of the declarant 5. the mental condition of the declarant 6. characteristics of the event 7. the subject matter of the statements HOLDING: Ct. held that a lapse of time of about one hour has been held not to remove the evidence from the 803(2) exception. Lack of recall may indicate that the declarant was under stress at the time of the statement. Cases must be decided under their own circumstances. NOTE: This court is saying that this is a close question, in trying to decide whether or not she has regained her faculties. - 12 - EVIDENCE - OUTLINE FRE 803(3) – State of Mind 1. A statement by the declarant a. NOT made by anyone else 2. of declarant’s then existing state of mind, emotion, sensation or physical condition, a. such as intent, plan, motive, design, mental feeling, pain and bodily health) b. CANNOT be statement about past emotional/state of mind, otherwise it would be a repetition of a historical fact 3. state of mind must be Legitimate Issue in case  Extremely limited hearsay exception  Only comes in to show person’s feelings, does not come in to prove the underlying fact;  State of mind hearsay exception allows statements to prove state of mind, but cannot prove issues of fact  Hilllman held that statements of intention can be used to prove that the declarant’s actions coincided with statement of state of mind 4. Fact Laden Statements do NOT prove underlying facts a. [―fact remembered of believed‖] 5. BUT NOT including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the execution, revocation, identification or terms of Declarant’s Will Advisory Committee Notes ( p. 203 #3)  The exclusion of “statements of memory or belief to prove the fact remembered or believed” is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind;  Without excluding such statements, then this exception would allow everything in, so long as ―I think‖ was placed before any statement;  The prosecutory/Δ can get hearsay evidence in through the back door Mutual Life Insurance Co. v. Hillmon, 145 US 285 (1992) Exception to hearsay exception under FRE 803(3) Letters written by the person it claimed was the actual decedednt and indicating that persons intention to accompany Hillmon, the purported decdednt and insured, were relevant and admissible to prove conspiracy theory that Hillmon had not died; wife NOT entitled to insurance proceeds. RULES: C/L: Statement of intent of declarant is admissible only to prove future conduct of declarant, and future conduct of another person Statement as to state of mind is allowed to prove those actions corroborating intent where statement was made prior to the acts being completed along with the statement regarding his intent Hillman Doctrine statement offered to prove state of mind does not require state of mind to be an issue in the case. State of mind statement can be offered to prove the performance of an act The Hillman Doctrine provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act (1) Statement of intent to show my then-existing intent a. cannot be offered to prove that declarant is married; or that a town is named Chicago b. cannot be offered to prove fact that is thought or believed c. can only be offered to prove state of mind (2) offered to prove future conduct of declarant – acted on the intention and performed the act; and } i.e, declarant acted on intention and went to Chicago } Hillman (3) offered to prove future conduct of other person –went with my wife (Hillman and his buddy kills Walters) } i.e., declarant went with my wife } Several Understandings of Hillman: 1. Full Hillman (1+2+3) 2. Hillman (1+2), but not prove #3 3. Hillman (1+2+3), but only if there is additional evidence - 13 - EVIDENCE - OUTLINE United States v. Pheaster, 544 F2d 353 (1976) cert. denied (1979) Inciso Δ claimed that it was error for the trial corut to have admitted into evidence statements of itnetnion made by the party that he and others, including Pheaster Δ, had allegedly conspired to kidnap. Weed sale turned into ransom of 16 yr old Larry Addell. Issue is what Larry Walters did, NOT WHAT HE INTENDED TO DO. There is no other evidence as to what he did. HOLDING: Ct. holds that Hillmon Doctrine was considered by ACN and fully expected to be in full force. ―The rule in Hillmon is left undisturbed.‖ No error in admitting testimony under Hillmon. RULES: Under the state of mind exception, hearsay evidence is admissible if it bears on the state of mind of the declarant and if that state of mind is an issue in the case. The exception embodied in the Hillmon doctrine is fundamentally different, because it does not require that the state of mind of the declarant be an actual issue in the case. Instead, under the Hillmon doctrine the state of mind of the declarant is used inferentially to prove other matters which are in issue. Stated simply, the doctrine provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act. NOTE: Within this conceptual framework, hearsay evidence of statements by the person which tend to show his intention is deemed admissible under the state of mind exception. When hearsay evidence concerns the declarant's statement of his intention to do something with another person, the Hillmon doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person. - 14 - EVIDENCE - OUTLINE FRE 803(4)–Medical Diagnosis/Treatment 1. statements made for purposes of medical diagnosis or treatment and  Declarant must speak for the purposes of medical treatment/diagnosis b/c he has an incentive to tell the truth b/c the declarant seeks genuine medical treatment, so that the statement will usually be truthful  Court will look the other way when the hearsay statement, that would normally be excluded, has a special indicia of truthfulness; NJ has FRE 803(4) today;  FRE 803(4) does NOT REQUIRE that the statement be made to a licensed physician, only made for the purpose of treatment  At C/L, the only thing that counted for this exception was the statement of the doctor; the authors call this the statement to physicians 2. describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof a. describes medical symptoms, causes, etc. b. No reqm‟t that stmt be made proximate in time to the event; may include 10 year history of medical symptom/condition; Victim can go one week / one year later to treating physician and make those statements to promote treatment and physician relies on the statement 3. insofar as reasonably pertinent to medical diagnosis or treatment  OBJECTIVE TEST under FRE 803(4) – ―reasonable‖ standard of pertinency of stmt to the diagnosis or treatment)  “A” for “A” – statement offered for substantive truth;  BROADER than FRE 803(3)  Comes in with LIMITING INSTRUCTION 4. Renville Test must be satisfied to establish proper foundation 1. the declarant’s motive in making the statement is consistent with the purposes of promoting treatment or diagnosis and 2. that the content of the statement is reasonably relied on by a physician in treatment or diagnosis Blake v. State, 933 P2d 474 (WY 1997) 16 year old girl raped multiple times by her stepfather. Stmt made within one week of the rape. 16 year old girl would not recover from that event. Prosecutor needs the stmt to be admitted in ―A‖ for ―A‖ not under FRE 803(3) b/c that is offered to prove mental state, but not actual fact. Prosecutor could argue that the identity of the perpetrator (if a family member) may be reasonably pertinent to the diagnosis/treatment b/c dr. would want to prevent the abuse in the future RULES: In order to admit statements of identity, proper foundation must be laid by using the Renville Test which requires that: 1. the declarant‟s motive in making the statement is consistent with the purposes of promoting treatment or diagnosis and 2. that the content of the statement is reasonably relied on by a physician in treatment or diagnosis NOTE: Prosecutor on questioning dr. asks to what is the purpose of questioning the identity of the perpetrator. Constantly questions purposes of dr.’s questions for the purposes the diagnosis or treatment. Assailant’s identity determines the treatment given. Lay the foundation of FRE 803(4) before asking dr. for “A” for “A” stm. Sexual assault on a child usu. requires identity of assailant to fully diagnose or treat the child; identity not important if a physical attack btw grown mean - 15 - EVIDENCE - OUTLINE FRE 803(5) – Recorded Recollection 1. a memo or record 2. concerning a matter about which a witness once had personal knowledge; BUT 3. where witness now has insufficient recollection to enable the witness to testify fully and accurately (witness must be on the stand); AND i. FRE 803(5) requires that witness have insufficient recollection 4. statement is shown to have been made or adopted by the witness; AND 5. when the matter was fresh in the witness’ memory; AND 6. reflects that knowledge correctly; 7. if admitted, the memo or record may be read into evidence but may NOT itself be received as an exhibit unless offered by an adverse party(memo must be read into evidence)  FRE 803(5) does NOT have any requirement other than memo was ADOPTED by witness and that statement was ACCURATE and FRESH in the mind of declarant and declarant had personal knowledge. No qualifiers for this exception; something else may disqualify it  FRE 803(5) is not a basis for admitting a document into evidence; it may only be READ into evidence, so as not to given undue weight to a hearsay statement that is vaguely remembered  usu. jury will have to remember testimony, and a horrible witness who records statement might prejudicially affect the jury b/c the jury will give undue weight to the written memo Ohio v. Scott, 285 NE2d 344 (OH St. 1972) Carol heard Randy Scott, Δ, say certain words that came out of his mouth. Scott objectd to introduction at his criminal trial of a wtiness’ prior statement to the police as a record of past recollection. Carol says that she does NOT remember what he said. Hearsay stmt is memo that was made, and prosecutor offers it ―A‖ for ―A.‖ Witness is the memo, not Carol. Memo will be read into evidence, introduced ―A‖ for ―A‖ and tells us what she said about what he said. The policeman will say that Carol said to him what Randy said to her (two layers of hearsay). Prosecutor questions and lays foundation of all requirements under FRE 803(5) RULES: The prior recorded statement of awitness n a criminal trial can be admitted under FRE 803(5) and does not violate 6th amendment right to confrontation Motive For Recording Statement Under Fre 803(5) Is IRRELEVANT. Only matters where memo was accurate. HOLDING: Declarant testifying at trial gives Δ sufficient opportunity to cross. All conditions for admissibility of memo to be read to jury where witness made original at or near the time, clear and accurate memory of it, lacked personal recollection of exact words. - 16 - EVIDENCE - OUTLINE FRE 803(6) – Business Records (regularly conducted activity) 1. a memorandum, report, record or data compilation, in any form 2. of acts, events, conditions, opinions, or diagnoses, 3. made at or near the time 4. by or from information transmitted by, a person with knowledge 5. if kept in the course of a regularly conducted business activity; AND 6. if it was the regular practice of that business activity to make the memorandum, report, record or data compilation 7. all as shown by the testimony of the custodian, qualified witness, certification, or statute 8. unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness  ―business‖ includes schools, non-profits, callings of every kind  Initial Threshold Difference btw 803(5) memo and 803(6) memo b/c FRE 803(6) requires that memo be made for a specific purpose. FRE 803(6) requires witness to be a business;  Business records DOES NOT ALLOW INADMISSIBLE HEARSAY, b/c the statement must be from a person who if he made that entry, actually came to court;  DETERMINE whether the judge would allow him to say that, and if the answer is yes, then he can write it down if it is the regular practice to write it down, and it is his business to do so, etc;  Under FRE 803(6), the custodian only need to know the process of creating, keeping files during regular course of business and establish foundation for hearsay exception b/c custodian has personal knowledge of source of records.  In Fed’l court, a certification that records were made in course of business activity, is enough to get the records admitted under FRE 803(6) (NOT so in NJ state court) Advisory Committee Notes p. 208 If, however, the supplier of the information does NOT act in the regular course , an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. Just because someone who runs a business writes something down does not sanctify the statement, the FRE 803(6) business records hearsay exception requirement must be satisfied Petrocelli v. Gallison, US Ct. of Appeals, 1st Circuit, 679 F.2d 286 (1982) Petrocelli did not depose doctors. Π expected to settle. He only had notes from doctor’s writings in the hospital. Did not give Petrocellis a fighting chance. Petrocelli testified that she called Dr. Gallison and that he said ―I Cut a nerve.‖ Source of information must have personal knowledge and must be known for a portion of a business record to be admissible. Outsider information can be saved if it can stand on its own two feet under some other hearsay exception and it was our regular practice to record that information HOLDING: Dist. Ct. judge was within his discretion to declare cryptic statement in Dr. Schwatrz memo as inadmissible. . In Dr.’s notes, the statement of ―nerve being severed‖ the court held that the source of the information was unknown or unverifiable. Stmt was excluded b/c the supplier of the information has to be someone the court can RELY on, NOT clear who it came from (might be Petrocelli’s own stmt). Ct. can rely on Dr. Schwartz stmt, but cannot rely on what Mr. Petrocelli states. Reliability of exception based on personal knowledge of sourcePetrocelli stands for the proposition that:Each level of hearsay must fit its own hearsay exception provided it is regular practice to record such information. Piggy back rule is needed b/c multiple hearsay statements must be individually justified. NOTE: Ct. says that record would have to meet 803(6) (absolutely meets the requirements), but the stmt DOES NOT meet 803(6) b/c it is not coming from someone within the business (NOT in-house, BUT from outsider). Nurses, doctors, etc., people who have a business duty to report to record keeper, so records are admitted under 803(6). However, outsider statements will NOT be admitted unless the Piggy Back FRE 805 allows it in. It is the hospitals regular practice to record this other hearsay (similar to how the investigators in Norcon, the Purcell security staff would write down what people from Norcon told them)(similar to what a police officer would write down what a driver in an accident told them, so it would be a regular practice); further, Petrocelli’s, stmt could be admitted under 801(d)(2) – admissions by opponent, 803(4) statement to a physician; b/c outsider stmt can ―stand on its own two feet‖ under another hearsay exception. However, Ct. will hold feet to fire when appellant seeks reversal of decision down below. Ct. does NOT overturn easily. Finally, the Ct. says that since Petrocelli did NOT offer stmt under 803(4) and Ct. believes that this was a strategic move b/c esq. did not want it to come in with limiting instruction. Norcon, Inc. v. Kotowski, Supreme Ct. of Alaska, 971 P2d 158 (Alaska 1999) Punitive damage award for $3.8M dollars, Ct. reduces it to $500K. Admissible b/c it was routinely kept for business purposes RULES: Requirement that records are from a business where the business regularly keeps those types of records, and is it s regular practice of company to make those records (DUAL NATURE OF EXCEPTION) HOLDING: Ct. found that it is the regular job of a security company to do investigations, and if they did an investigation, their job would include a report of their investigation. A high INDICIA OF RELIABILITY exists where a a business runs itself on these records, then they should be reliable. If ER relies on everyone reporting, then MA general hospital probably knows that records are partially for litigation and KEPT AS PART OF BUSINESS. Such rationalizations justify a hearsay exception because of trustworthiness of information. - 17 - RULES: EVIDENCE - OUTLINE FRE 803(8) – Public Records and Reports 1. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, 2. unless the sources of information or other circumstances indicate lack of trustworthiness.  Factual finding also includes an EVALUATIVE OPINION, as was debated in Baker  Δ cannot try to introduce from the report his own statements; admissible where the stmt was made against the Δ, not by the Δ;  Outsider of statement must be introduced by an adverse party. Slabach’s statement was outsider statement (hearsay within hearsay) being offered by the Π. Slabach was offering the report, so he cannot use Admissions Doctrine. Baker v. Elcona Homes Corp., US Ct. of Appeals, 6th Circuit, 588 F2d 551 (1978) Sgt. arrives 6 min. after accident. Takes measurements. Draws accident in diagrams. Takes measurements. Exams the scene. Sgt. concludes that valiant ran the red light after investigating, doing vector analysis, talking to driver, talking to eye witnesses, but DOES NOT OBSERVE THE ACCIDENT. Skid marks are observed. Crash scene is observed. Examination of vehicles. Πs object to stmt within the report: Slabach’s stmt to the police officer is NOT a matter observed as required under 803(8)(B). Writing down what person said to you is NOT a factual finding or a matter observed. RULES: When they result from an investigation made pursuant to authority granted by law, factual findings (including evaluations and opinions composed from witnesses) in public records and reports are admissible unless the source of the information or other circumstances indicate lack of trustworthiness. Supreme Ct. in 1988, adopts broader interpretation admitting investigative opinions, factually based conclusions, Beech Aircraft v. Rainey, 488 US 153 (1988). “Factual finding” is not construed to exclude investigative opinions, factually based conclusions 801(8)(C) allows factual findings to be based on OUTSIDER INFORMATION unlike 803(6) which requires source to be from in-house information HOLDING: Here Sgt. did not forget, he merely refreshed his memory, so he did NOT satisfy FRE 803(5) b/c there was NO insufficient recollection. HOWEVER, appellate Ct. finds that while Sgt.’s statement was admitted under 803(5), it should have been admitted under 803(8) with 805 Piggy Back Rule which would allow Slabach’s stmt to come in under 801(d)(1)(B) a prior consistent statement offered to rebut charge of fabrication and a public record. Slabach statements fails 803(6) b/c NOT officers regular course of business and source of info is NOT in-huose. Also, Ct. says that Slabach’s stmt does not meet 803(8)(B) b/c it was neither observed nor 803(8)(C) a factual finding, but no doubt his stmt affected his factual finding, so under 803(8)(C), the source of the information can come from the outside; nonetheless,…Slabach was vigorously cross-examined regarding his prior stmt; it implied that he had changed his stmt; but stmt was allowed as a rebuttal of charge of recent fabrication NOTE: In Baker, court was looking to save the judgment, even though they didn’t argue down below, and court would save the judgment b/c it would cut you some slack. Additionally theories to get judgment reversed is NOT ALLOWED. Additionally theories to save judgment usu. finds a more willing ear from the court. Ct. does not use ―piggy back” phraseology nor do they cite to FRE 805, but that is what court is saying U.S v. Oates, 560 F.2d 45 (1977) Chemist tests to prove that substance was heroine; he was not at trial to testify. Report was offered into evidence, against Δ in criminal case. Chemists is other law enforcement personnel. Gov’t is using it against the Δ, not against the gov’t. FRE 803(8) problem b/c report offered by gov’t against Δ in criminal proceedings which was prohibited by FRE b/c always legislative intent to protect Δs rights under Confrontation Clause. Hearsay problem b/c prosecutor does not have his witness, he does NOT have chemist; he only has chemist’s report. (If you do NOT have Dr. Schwartz, he can say whatever he wants with a hearsay exception). Without declarant, then you need an exception for the report and also exceptions for hearsay within hearsay. RULE: 803(8)(C) in civil actions and proceedings and against the gov‟t in criminal cases, the factual findings resulting from investigation pursuant to authority granted by law Provision in 803(8)(B) & 803(8)(C), excludes in criminal cases, matters observed by police officers or other law enforcement personnel. 803(8)(B) & (C) can be used against gov‟t but not Δ in criminal proceedings, only in civil proceedings. HOLDING: Ct. seeks to protect Δ’s 6th amendment right to confrontation of the witnesses against. Too much possibility of collusion for gov’t in criminal case to offer evidence made during course of investigation, i.e., public records as proof of ―A‖ for ―A.‖ DOES NOT MATTER FOR WHAT PURPOSE REPORT WAS MADE, only against whom it is offered. - 18 - EVIDENCE - OUTLINE FRE 803(18) – Learned Treatises 1. called to the attention of an expert witness 2. upon cross-examination or relied upon by the expert witness in direct examination, a. expert must have relied on this treatise or b. must be cross-examined as to expert’s reliance on another’s expert’s stmt in the treatise 3. statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, 4. established as a reliable authority a. by the testimony or admission of the witness or b. by other expert testimony or c. by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.  Traditionally offered only to impeach; but, Rule 803(18) rejects these arguments, permitting full use of a treatise, where (1) it is shown to be “Reliable Authority” and (2) either the expert relies on it in direct examination or it is called to his attention on cross-examination (p. 300);  Declarant is author and is not present so a hearsay exception is needed b/c expert is offering statement ―A‖ for ―A‖ - 19 - EVIDENCE - OUTLINE VII. FRE 804 – DECLARANT UNAVAILABLE (HEARSAY EXCEPTIONS) a. Definition of unavailability b. Hearsay exceptions: 1. Former testimony 2. Statement under belief of impending death 3. Statement against interest 4. Statement of personal or family history 5. Other exceptions (Transferred). 6. Forfeiture by wrongdoing FRE 804(a) – Definition of Unavailabiliy Unavailability as a witness includes the situations in which: 1. declarant exempted by ruling of the court on the ground of privilege; OR a. legally unavailable b/c of 5th Amend. privilege against self-incrimination; Δ cannot be called to testify against himself, Bruts 2. declarant persists in refusing to testify concerning the subject matter of the declarant’s statement despite and order of the court to do so; OR a. rule contemplates a threat of contempt, Williamson (Harris became legally unavailable by refusing to testify); i. Harris was given immunity; he cannot claim 5th Amendment privilege; 3. declarant testifies to a lack of memory of the subject matter of the declarant’s statement; OR 4. declarant is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; OR a. chemist in Oates, chemist’s statement at trial would have been admissible, but his wife calls and said that he is sick. He is legally unavailable. 5. declarant is absent from the hearing and the proponent of his statement has been unable to procure the declarant’s attendance by process or other reasonable means; a. Pennoyer v. Neff (1876) requiring personal service of process within boundaries of state; Int’l Shoe allowed service of process if minimum contacts test with jurisdiction is met; This has never spilled over to non-party witnesses b. Legally unavailable b/c the person is beyond the subpoena power; i.e., NJ subpoena cannot get to PA, b/c subpoena power is limited to territorial boundaries in NJ; process can be served by long arm statutes in Missouri if minimum contacts test is met (Int’l Shoe); Barber v. Page, (1968) Co-Δ convicted by trial testimony made by co-Δ which inculpated the other co-Δ. RULES: Requires that before exception to confrontation requirement is met, the prosecution must have made a good faith effort to obtain presence of witness at trial. Prosecution cannot make NO attempt to bring in witness. 804(b)(1) Former Testimony – Criminal Cases 1. Where [Ct. finds that] declarant is [legally] unavailable as a witness, under FRE 804(a)(1)-(5) 2. Testimony given as a witness at another hearing of the same or a different proceeding, OR in a deposition taken in compliance with law in the course of the same or another proceeding, (TESTIMONY had to be uttered at such a proceeding) a. Same or Different Trial, Hearing, proceeding or Deposition for b. Testimony offered ―A‖ for ―A‖ 3. if the party against whom the testimony is now offered, AND a. person who it is offered against had to have the opportunity to cross the declarant 4. had an opportunity and similar motive to develop testimony by cross (direct, cross or redirect examination); AND a. Ct. in Lloyd did not allow testimony at previous license renewal where case at hand is for murder; motives were dissimilar; in criminal case, only Δ / person whom evidence is offered agaistn 804(b)(1) Former Testimony – Civil Cases 1. Where [Ct. finds that] declarant is [legally] unavailable as a witness, under FRE 804(a)(1)-(5) a. Legally unavailable under FRE 804(5) 2. Declarant made a statement ―A‖ for ―A‖ at a a. Lloyd says: ―Alvarez started the fight‖ 3. same or different trial, hearing, proceeding or Deposition; AND EITHER 4. person who testimony is offered against had an opportunity to develop testimony by cross; OR 5. a predecessor in interest, had a similar opportunity and similar motive to develop the testimony by direct, cross or redirect examination  Res judicata and collateral estoppel were borrowing the judgment; FRE borrows ONLY the testimony; Lloyd v. American Export Lines, (1978) Ct. holds that the prior testimony of an unavailable witness is admissible if the party against whom it is offered or a predecessor in interest had the opportunity and similar motive to develop by direct, cross, or re-direct examination.  Ct. in Lloyd did not allow testimony at previous license renewal where case at hand is for murder; motives were dissimilar; NOT a predecessor in interest.. However, since Alvarez did NOT have an opportunity to exam Lloyd @ deposition, Lloyd’s absence is significant. - 20 - EVIDENCE - OUTLINE FRE 804(b) (2) Dieing Declaration (under Belief of Impending Death) Where declarant is [legally] unavailable as a witness, the following hearsay exceptions apply: 1. Case must be for a. homicide prosecution only; OR b. in a civil litigation or proceeding, 2. a statement made by a declarant 3. while believing that the declarant’s death was imminent, a. think that he is dieing 4. concerning the cause or circumstances of what the declarant believed to be impending death; a. about the cause of his death  NO REQUIREMENT THAT DECLARANT MUST DIE;  NOT a hushed confession on death bed;  Ct. requires imminence because Ct. does not want to give opportunity to fabricate or reflect;  Imminent death is indicia of trustworthiness; person who thinks he is going to die will usu. tell the truth FRE 804(b) (3) Statement Against Interest Where declarant is [legally] unavailable as a witness, the following hearsay exceptions apply: 1. statement which was at the time of its making so far contrary to (against) the declarant’s pecuniary or proprietary interest, OR a. neutral statement are NOT contrary/against interest 2. tended to subject the declarant to civil or criminal liability , OR 3. rendered invalid a claim by the declarant against another; AND 4. a reasonable person in the declarant’s position would NOT have made the statement, 5. unless believing it to be true  HIGH INDICIA OF RELIABILITY b/c no one will falsely admit their crimes and allow unjustified punishment  DO NOT Confuse 804(b)(3) with statement by adverse opponent Williamson Harris gives a long statement to the police. In Williamson, Harris is NOT a Δ; he can say anything b/c he is a Δ; It just has to come out of his mouth to be admitted under Admissions Doctrine; admissions are not the only statements admitted under FRE 801(d)(2). Harris is unavailable and refuses to testify. RULES: MAJ. Holds that each individual line in the statement is admissible, not the entire document (15 pages). It is a line by line analysis; AND Statements must be truly incriminating of declarant; Each individual statement must be truly against Δs interest and it can have spillover inculpation of another. Further, spillover effects on another are admissible as long as what he said about the other person also is equally, and truly incriminating against declarant (p.327) Whether the statement was sufficiently against the declarant‟s penal interest „that a reasonable person in the declarant‟s position would not have made the statement unless believing it to be true” HOLDING: When he implicated another person, he does know that it is against his interest. STATEMENT MUST BE TRULY AGAINST HARRIS’S INTEREST. If not, then inadmissible b/c simply curring favor. Ct. holds that the context of surrounding circumstances will answer the reasonableness of truthful belief. Ct. holds that Admissions of arrested accomplices that are truly self-inculpatory are admissible as collateral statements if they are NOT just made to shift blame or curry favor; NOTE: If incriminating statements are from declarant about criminal defendant, then NOT admissions doctrine. When words are from Criminal Δ, then ADMISSIONS DOCTRINE. - 21 - EVIDENCE - OUTLINE VIII. CONSTITUTION AS BAR AGAINST HEARSAY Ohio v. Roberts, (1980) As long as FRE 804(b)(3) meets a firmly rooted hearsay exception it satisfies the confrontation clause Crawford v. Washington, (2004) Crawford stabbed a man who tried to rape his wife. Wife made recording at police station. She spoke as to key issue of selfdefense. Mr. Crawford confronts the cop; but conviction is overturned; the court says that he never got to confront his wife; RULES: 6th Amendment: in all criminal prosecutions, the accused holds the right to be confronted by the witnesses against him, applies to fed‟l and state proceedings. Testimonial hearsay evidence is inadmissible unless Δ in criminal case has a right to confront the witness. CRAWFORD TEST for CONFRONTATION CLAUSE ISSUE 1. Criminal Prosecution? a. 6th Amendment applies only in criminal cases i. No civil cases 2. The Δ / Accused a. Evidence must be admitted against the Δ 3. Witnesses a. Right to Confront not just seeing the witness, but also the right to cross examine live witness 1. Who qualifies as a witness for purposes of the 6th Amendment? 2. Live witnesses (no Conf./Cl issue) and hearsay declarants a. Those declarants whose statements are offered against Δ ―A‖ for ―A‖ - out of court declarants 4. Statement being admitted as SUBSTANTIVE EVIDENCE (―A‖ for ―A‖), a. Statement admitted to show ―truly said‖ (B for B) has NO C/C problem, so NOT an issue b. The 6th amendment clause does not bar the use of TESTIMONIAL STATEMENTS FOR USE OTHER THAN ESTABLISHING THE TRUTH OF THE MATTER ASSERTED 5. Statement TESTIMONIAL? FORMULA: (p 374) a. Under any definition, in all situations, but when you are brought down to police station and they are asking you question, then Silvia’s statements are testimonial i. 6th amendment requires Δ to be allowed to confront witness b. Declarant reasonably should’ve known that statement would have been used in a future prosecution 1. Witness is one who offers testimony; statement to police officer, at a hearing, etc. that is testimonial, thus made by a witness; a. An off-hand, casual remark is NOT testimonial b. statements that were made under circumstances that would be available for use at a later trial (were these statements made where the declarant would reasonably conclude that they would be used for a later trial) i. preliminary hearing, grand jury, police interrogation, Ex parte in court testimony or its functional equivalent; affidavits, prior testimony, custodian investigation; similar pretrial statements that declarants would reasonably be expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions, 2. Statement made by a co-conspirator are NOT testimonial where they are in the furtherance of the crime a. unwitting statement made among acquaintances NOT to gov’t officers b. Statements are NOT made in response to structured police interrogation 6. Hearsay declarant NEVER appear as a witness a. Some hearsay exceptions require that the declarant testify in the case in the proceeding i. Unless judge disallows cross, then there is NO C/C issues ii. FRE 803(5) – recollection – live witness required 7. If #1-6, then NOT admissible under Confrontation Clause (even though it may meet a hearsay exception) (Silvia’s stmt met 804(b)(3)) 8. EXCEPTIONS to Crawford rule of inadmissibility of testimonial statements: a. Unless prior opportunity to cross and is declarant is unavailable, then statement may be admitted despite Confrontation Clause issue; OR b. Dieing Declaration i. s(p. 375 - FN 6); OR c. Rule of Forfeiture by wrongdoing, i. Ct. accepts Rule of Forfeiture by wrongdoing/waiver of C/C rights, which extinguishes Confrontation Claims on equitable grounds, b/c does NOT serve as an alternative means of determining reliability. Admitting statements deemed reliable by a judge are fundamentally at odds with the right of Confrontation; (p. 342 #6) ii. Roberts; admitted statements that could be deemed reliable despite failure to cross declarant iii. In trial of Sir Walter Raleigh did NOT allow Raleigh to confront the witness who was accusing him; NOTE: 911 calls may be testimonial. Jurisdictions are split. - 22 - EVIDENCE - OUTLINE IX. MINOR HEARSAY EXCEPTIONS FRE 803(16) Statements in ancient documents Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. FRE 803(17) Market reports, commercial publications Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. FRE 803(22) Judgment of previous conviction Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. FRE 803 (7) Absence of entry in records kept in accordance with the provisions of paragraph (6) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. FRE 803 (10) Absence of public record or entry Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. FRE 803 (9) Records of vital statistics Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. FRE 803 (11) Records of religious organizations Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. FRE 803 (12) Marriage, baptismal, and similar certificates Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. FRE 803 (13) Family records Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. FRE 803 (14) Records of documents affecting an interest in property Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. FRE 803 (15) Statements in documents affecting an interest in property Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. FRE 803 (20) Reputation concerning boundaries or general history Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. FRE 803 (19) Reputation concerning personal or family history Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. FRE 803 (21) Reputation as to character Reputation as to character. Reputation of a person's character among associates or in the community. FRE 803 (23) Judgment as to personal, family, or general history, or boundaries Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. - 23 - EVIDENCE - OUTLINE FRE 806 – Attacking and supporting credibility of declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. FRE 807 – Residual exception CATCH ALL EXCEPTION A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. X. RELEVANCE REVISITED FRE 401 – anything that has a tendency to make the existence of a fact more probably (Moves the needle) FRE 404 is under 400 b/c reputation evidence moves the needle  Reputation evidence absolutely moves the needle  Character evidence has predicted evidence for sexual predators  Certain people have particular propensities FRE 404 & 405  Largely restate rules that have evolved at COMMON LAW Michelson v. Unites States, 335 US 469 (1948) Rules are Paradoxical and full of Complicated compromises and compensations. Clumsy system that is workable through use of discretionary controls in the hands of a wise and strong trial court. Moves the needle. Tuer v. McDonald, (1997) Subsequent remedial measure evidence is NOT generally admissible for impeachment purposes if it is merely offered to contradict a defense witness‟ testimony. - 24 - EVIDENCE - OUTLINE XI. CHARACTER EVIDENCE Generally character evidence is inadmissible b/c they tend to prove through circumstantial evidence that accused has a propensity to act in a certain way evidenced by testimony of past conduct. However, when circumstantial evidence is offered not for its probative value alone, but to rebut the character trait placed into issue at trial, then character evidence, with certain limitations is admissible.  Character evidence (of past history) is being offered as circumstantial evidence b/c of circumstance of previous robbery is being offered as propensity evidence of current crime. Evidence of persons character or trait of character is inadmissible for proof of conformity on a particular occasion (CIRCUMSTANTIAL/PROPENSITY/PREDICTIVE). Character evidence is offered to prove conformity with character trait as a thief/liar. Character evidence available only for criminal cases. Use of words ―accused‖ and ―prosecution‖ indicate clearly that the rules are applicable for criminal cases. Some courts allow character evidence for criminal torts (civil cases with criminal element) (simple assault). Proposed amendment would bar character evidence completely and clearly from civil cases   Three Forms of Character Evidence: 1. Statement of reputation 2. Statement of opinion 3. Statement of witnessed events of honesty/dishonesty FRE 404 – Character evidence not admissible to prove conduct; exceptions; other crimes: (a) Character evidence generally. Evidence of a person’ character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion except: (1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2) (victim), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of a witness. Evidence of the character of a witness, as provided by FRE 607, 608 and 609 (b) Other crimes, wrongs, or acts (1) Evidence of other crimes, wrongs or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity intent preparation, plan, knowledge, identity, or absence of mistake or accident, provided (2) that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. FRE 405 – Methods of proving character: 405(a) Reputation/Opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 405(b) Specific Instance of Conduct In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. - 25 - EVIDENCE - OUTLINE FIRST INQUIRY: Whether CHARACTER EVIDENCE EVEN ADMISSIBLE? (See FRE 404); if it is 405(a) will tell you the form of the character evidence FRE 404(a)(1) – OPENING THE DOOR 1. Δ must open door a. His PERTINENT (relevant) character trait b. Victims PERTINENT (relevant) character trait i. Without opening the door, the prosecuting cannot offer any character evidence ii. Character Evidence must be for PERTITENT character trait 2. As to Δ character, after door was opened a. Prosecutor may offer evidence to rebut Δs assertion 3. As to character of victim, after door was opened a. Prosecutor may offer i. rebuttal character evidence for victim (governed by FRE 404(a)(2)) ii. Character evidence to rebut Δs assertion on the same character trait Δ asserted against victim FRE 404(a)(2) – CHARACTER OF VICTIM 1. Criminal Δ must open door EITHER by a. offering character evidence as to the victim; OR i. prosecutor may offer 1. rebuttal character evidence for victim 2. rebuttal character evidence as to the same character trait of Δ b. indicating that victim was first aggressor i. must be in a Homicide Case, ii. prosecutor may offer character evidence as to victim’s character trait of peacefulness only 1. cannot offer evidence as to Δ FRE 404(a)(3) – Character evidence of Witness 1. strictly limited to character evidence for truthfulness or untruthfulness of witness a. character evidence relevant to truthfulness Governed by FRE 607, 608, and 609 i. once a witness testifies they put their credibility at issue ii. prosecutor may call his own character witness for a PERTINENT trait FRE 404 (b) – Other crimes, wrongs, or acts (1) Evidence of other crimes, wrongs or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity intent preparation, plan, knowledge, identity, or absence of mistake or accident, provided    Rule has a NON-exclusive list of other purposes which MAY BE USED IN CIVIL and CRIMINAL CASES Must be a Legitimate Relevant Issue in the case AND ct. will give a Limiting Instruction; FRE 403 analysis required No opening door requirement (2) that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.  In a criminal case, there must be notice, unless the judge waives notice for good cause shown; NOTE: ACN indicates that amendment of 404(b) requires reasonable notice (under a broad notice provision with no specific form requirement) of intention to use such specific act evidence; the judge in his discretion may find that this notice was unreasonable for lack of completeness or untimeliness; as such, because a prerequisite condition for 404(b) the evidence is inadmissible (ACN p. 82; Textbook p. 411) Huddleston v. U.S., 485 US 681 (1988) RULES: Preponderance of evidence standard to admit specific instances of conduct offered for “something else.” FOUR PART TEST FOR ADMISSIBILITY under FRE 404(b) 1. judge decides whether the evidence is offered for a proper purpose (2nd sentence of 404(b)) 2. judge decides whether it is relevant for that purpose 3. judge decides whether its probative worth is outweighed by the risk of unfair prejudice and 4. judge gives a limiting instruction on request  Evidence against accused of same trait offered against victim  RAPE SHIELD LAWS effect 404(a)(2) – Δs right to introduce evidence about the victim  there is NO jurisdiction that does NOT have a  overrule 404(b) second sentence as to showing prior activity - 26 - EVIDENCE - OUTLINE SECOND INQUIRY: What form will the admissible Character Evidence take? Reputation/Opinion or Specific Instances of Conduct? FRE 405 – Methods of proving character: 405(a) – Reputation/Opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 1. only reputation/opinion evidence is allowed where character evidence has been found admissible (to rebut) 2. direct evidence of specific instances of conduct is NOT allowed a. prosecutor may inquire as to relevant specific instances of conduct that are PERTINENT during CrossExamination i. Testimony of witness can be tested by questioning as to specific instances ii. Inquiry must be RELEVANT as to character traits 1. in an automobile case, motive, knowledge, intent are NOT proper/legitimate issues in a negligence case iii. Cross examiner is bound by the witness response 1. Cannot offer additional proof 2. Witness can be later charged with perjury iv. evidence admitted solely to test credibility of character witness; 1. SHOULD NOT BE CONSIDERED as proof of relevant person’s character  In criminal case if Δ wants to introduce evidence that he is peaceful, then under 405(a), Δ can only call reputation/opinion witness to say that Δ has reputation or is a peaceful man. Δ cannot introduce evidence by specific instances of conduct 405(b) – Specific Instance of Conduct In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. 1. admits / allows Specific Instances Of Conduct 2. of an Essential Element of case where failure to demonstrate element will non-suit Π a. TEST: If the essential element is NOT proven, the Π is non-suited; there is no cause of action; Is the other side non-suited unless they prove this essential element? Without the element, is there a case? i. Defamation – truth is an absolute defense to defamation ii. Negligent entrustment iii. Child custody iv. Wrongful death b. In criminal cases, CHARACTER is almost NEVER an ESSENTIAL element of the criminal charge c. In civil litigation, the evidence is NOT offered as a predicate fact supporting an inference of behavior on a particular occasion, but as an end in itself d. Good Faith basis required before inquiring into instances of specific acts; i. On cross examination inquiry is allowable into evidence of specific acts to TEST THE WEIGHT TO BE GIVEN TO CHARACTER WITNESS’s opinion/testimony of reputation ii. CANNOT BE ASKED for propensity evidence iii. ADMITTED TO prove character’s witness personal knowledge of opinion, i.e., and allows jury to place proper weight as to witness’s testimony 1. Admitted with limiting instruction allowing evidence to determine the weight given to witness’s testimony iv. Inquiry is allowable into relevant instances of specific conduct 1. Only allows questions, FRE does not want one trial to become a set of mini-trials Cross-examine part of FRE 405(a) only comes into existence after a reputation or opinion witness has already testified Michelson, 335 US 469,484-485 (1948) A Δ is powerless to prevent his cause from being irretrievably obscured and confused, but, in cases such as the one before us, the law foreclosed this whole confounding line of inquiry, unlsess Δ thought the net advantage from opening it up would be with him, given this option, we think Δs have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense. ADMISSIBILITY OF FORMS OF CHARACTER EVIDENCE CHART Reputation Opinion FRE 404(a)(1)-(2) & FRE 405(a) FRE 405(b) FRE 404(b)(2nd Sent.) Yes Yes X - 27 Yes Yes X 2. Specific Instances of Conduct No, (inquiry only on cross and only to test credibility of witness) Yes Yes EVIDENCE - OUTLINE FRE 406 – Habit; routine practice  Habit is viewed as relevant to prove conduct whether corroborated or not and regardless of the presence of eyewitnesses (p. 428) Frase v. Henry, 444 F2d 1228, 1232 (10th Cir. 1971)  Evidence of habit or custom is relevant to an issue of behavior on a specific occasion because it tends to prove that the behavior on such occasion conformed to the habit or custom McCormick on Evidence, § 195 (1992)  Character is a generalized description of one’s disposition in respect to a general trait (honest, etc.); Habit is more specific  Habit is a person’s regular practice of responding to a particular kind of situation with a specific type of situation  The doing of a habitual act may become semi-automatic 2 C Mueller, Federal Evidence § 124 (1994)  The primary reason is that habit describes particular behavior in a specific setting and it is by nature at least regular if not invariable so it has greater probative value in proving conduct on a particular occasion than does evidence of more general propensities  Judge (Ct.) will have discretion to admit or not admit the evidence  Judge will determine whether specific act was a habit  If act is done once or twice, it may be a HABIT b/c it only happens once or twice in a five year period (refusing to dance at two out of three daughters weddings)  Habit has a greater predictive value; judge will decide FRE 407 – Subsequent remedial measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 1. When after an injury or harm allegedly caused by an event, a. Inherent temporal requirement that remedial measure has to occur after the injury 2. [Remedial] measures are taken that, if taken previously, would have made the injury or harm less likely to occur, a. Inherent temporal requirement that remedial measure has to occur after the injury 3. Evidence of the subsequent measures is not admissible to prove: a. Negligence, OR b. culpable conduct, OR c. a defect in a product, OR d. a defect in a product’s design, OR e. a need for a warning or instruction This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, feasibility of precautionary measures, if controverted, or impeachment   Jury may be swayed by evidence of remedial measure taken by the Δ  A tacit agreement that the Δ agrees that there should have been a handrail Public policy to encourage people to fix the problem after an injury occurred  Everyone would be so afraid that if they did anything to change what they did in the past, that it is a tacit admission of guilt,  court and society is benefited by encouraging parties to make beneficial changes subsequent remedial measures  may be admissible under state law that does not have FRE 407 equivalent (Frummer v. Hilton Hotels)  at the time that 407 was drafted, it did not apply to product liability cases, only negligence cases, but amended to include product liability cases evidence under FRE 407 can be offered to prove ownership, control…  SHU changes the carpet after arguing that they do NOT maintain and are Responsible for the carpet  Evidence is being offered to show that SHU are the ones to change the carpet, not some other company Event is when the injury occurs, NOT when the design of product or MFR of product occurs Cannot open the door on feasibility through a trap question:  Was the stairway as SAFE AS IT COULD HAVE BEEN?  (no, b/c it remedially installed hand rail)     Tuer v. Macdonald, Man has angina stable with heparin drug. Emergency occurs and MacDonald sits on gurney for several hours off his special heart medicine. After this man died, the hospital changed the policy. Dr. MacDonald made clear that had Mr. Tuer exhibited signs of heart attack that Dr. would have restarted the heparin. Dr.’s brief response that at the time he regarded it unsafe to restart heparin. A doctor’s statement that it was unsafe to restart the heparin is the same as being unfeasible, but the truth is that the hospital really - 28 - EVIDENCE - OUTLINE does restart the heparin, and could be showed to controvert his statement. Injury caused by lack of heparin. Remedial measure imposed after MacDonald dies. Widow would love to be able to show that this hospital does not do the procedure anymore    Dr. suggests that given the complications and possibility of puncturing an artery, suggests that restarting heparin was FEASIBLE but not advisable The assertion that a given course be unsafe in the sense that it would constitute paramount harm, is the assertion that it was unfeasible Ct.’s determination in drawing the line depends on witness testimony  ―407(a)‖ excludes it but can be offered to controvert under ―407(b)‖ Ct. finds that Dr. was not saying that it was NOT feasible, so evidence cannot be admitted to controvert the HOLDING: Dr.’s statement SPLIT IN THE AUTHORITY  Some courts say that witness must really open the door, some serious chest beating  Some courts say that the witness must only begin to open the door  If witness has gone into the area of bragging about the safety prior to the remedial measures, then prosecutor can introduce evidence of remedial measure b/c witness opened the door by passing over the fine, undetermined rule  Goes to 2nd sentence of FRE 407  Dr. MacDonald is trying to say that there is everything he could do  A subsequent remedial measure can be seen as controverting testimony,  But the impeachment not admissible where prosecutor opened door through trap question  On direct, Δ says: ―I did not beat my wife‖  On cross, prosecutor asks ―do you consider yourself a peaceful person‖  Cannot make case through subsequent remedial measure  Some courts have construed words narrowly disallowing measures (p. 435-436) FRE 408 – compromise and offers to compromise (a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a the claim which was disputed as to either validity or amount; and, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of\ (2) conduct or statements made in compromise negotiations is likewise not admissibleregarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. Permitted uses. This rule also does not require exclusion when if the evidence is offered for another purpose, such as purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice of a witness,; negativing negating a contention of undue delay, or; and proving an effort to obstruct a criminal investigation or prosecution.  Evidence of furnishing valuable consideration in compromising a claim that is disputed  Policy reason is to KEEP settlement attempts under wraps  Nobody would settle if the adversary can make reference to the failed settlement attempts to prove that adversary is guilty b/c he offered to settle  Cannot offer evidence of settlement btw one Π and one Δ in another case with same Π and co-Δ  WHO WOULD SETTLE? (No one) Why is it under FRE 408? Why do we need 404?  Rule is necessary to prevent/bar evidence b/c 401 admits evidence that moves the needle and 402 states that all evidence is admissible unless it is excluded  The evidence would NOT absolutely resolve issues, but it would be admissible b/c it is relevant HEARSAY & Admissibility  If it is irrelevant, if it is NOT something you are allowed to prove, so what if you have a hearsay exception, the judge will determine that evidence is inadmissible b/c it is incompetent (i.e., irrelevant, doesn’t move the needle)  FRE 803 began with the phrase ―the following are NOT excluded by the hearsay rule‖  If the objection is ―hearsay‖, then the hearsay exception trumps a hearsay objection  A hearsay exception will NOT trump a relevance objection - 29 - EVIDENCE - OUTLINE   HOWEVER, evidence would be admissible to prove bias, prejudice of a witness, a negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.  Settlement offered only to obstruct criminal investigation or prosecution  Where party offers settlement and delays until SOL runs  Evidencing of furnishing a witness where the witness accepted money from someone in a settlement FRE 408 protects offer to pay and Statements FRE 409 – Payment of medical and similar expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.  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 jury  Benefits insurance companies who pay but don’t want that to show guilty  Only protects evidence of payments FRE 410 – inadmissibility of pleas, plea discussion or related statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.   Talking about guilty pleas that remain unconsummated  NOT admissible in any civil or criminal proceeding  Plea of guilty  Plea of nolo contendere (not available in NJ)  Any statement made under FR Crim Proc 11 or comparable state statute  Statement made in plea discussions that do Not result in a guilty plea or where plea was later withdrawn  Prosecutor could offer under FRE 801 – statement by accused admitting guilty  Came out of his mouth offered against him;  Would 801(d)(2)(A) trump 410?  FRE 410 says that these statements are NOT RELEVANT  HEARSAY does not trump relevance objections rule of hearsay can NEVER TRUMP a rule of relevance  FRE 410 trumps 801(d) – Admissions Doctrine FRE 411 – Liability insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.  Under FRE 411, negligence cannot be proven by liability insurance, but insurance can be used to prove ownership, agency, control, bias of a witness  Do not want to prejudice jury FRE 412 – Sex Offense Cases; Relevance of Alleged Victim‟s Past Sexual Behavior or Alleged Sexual Predisposition: a. (a) Evidence generally inadmissible b. (b) Exceptions c. (c) Procedure to determine admissibility FRE 413 – Evidence of Similar Crimes in Sexual Assault Cases  FRE 413 does not have a similar limitation as 404(b)  Prior bad acts can be admitted if shown to a preponderance of the evidence, can be admitted as to anything that is relevant  Character evidence is relevant (moves the needle), so this evidence will be admitted; o Character evidence was barred by 404; NOT limited by any other Rule of evidence FRE 414 – Evidence of Similar Crimes in Child Molestation Cases FRE 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation - 30 - EVIDENCE - OUTLINE XII. IMPEACHMENT OF WITNESS FRE 607 – Who may impeach The credibility of a witness may be attacked by any party, including the party calling the witness. FRE 608 – Evidence of character and conduct of witness: a. Opinion and reputation evidence of character The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1. the evidence may refer only to character for truthfulness or untruthfulness, and 2. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise b. (b) Specific instances of conduct Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness 1. concerning the witness' character for truthfulness or untruthfulness, or 2. concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. FRE 609 – Impeachment by Evidence of Conviction of Crime (a) General Rule. For the purposes of attacking the credibility of a witness (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness ws convicted, and evidence that an acused has been convicted of such a crime shall be admitted If the ourt determines that the probative value of the admitting this evidence outweights its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment FRE 609(a)(1)(i) –witness, normal FRE 403 applicable (favors admissibility, excluded if probative value is substantially outweighed by danger of unfair prejudice), any crime qualifies so long as punishable by one year or more; FELONY, no honesty requirement FRE 609(a)(1)(ii) – Δ witness, reverse FRE 403, (probative value outweighs the prejudicial effect on the accused), same requirement that crime be a felony or punishable by death (b). Time Limit. Evidence of a conviction under this rule is NOT admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement… Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. (c) (d) (e) - 31 - EVIDENCE - OUTLINE FRE 610 – Religious beliefs or opinions Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. FRE 611 – Mode and order of interrogation and presentation: a. Control by court The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. b. Scope of cross-examination Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. c. Leading questions Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. FRE 612 – Writing used to refresh memory Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) (2) while testifying, or before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. FRE 613 – Prior statements of witnesses: a. Examining witness concerning prior statement In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. b. Extrinsic evidence of prior inconsistent statement of witness Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). FRE 614 – Calling and interrogation of witnesses by court: a. Calling by court The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. b. Interrogation by court The court may interrogate witnesses, whether called by itself or by a party. c. Objections Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. FRE 615 – Exclusion of witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present. - 32 - EVIDENCE - OUTLINE Seven MODES of IMPEACHMENT 1. Bias, Motive And Influence 2. Ability To Perceive /sensory and mental capacity 3. Opinion And Reputation evidence of the character for Truthfulness Or Untruthfulness of a witness (cross reference FRE 403(a)(3)) – FRE 608(a) 4. Specific Instances Of Conduct that are probative of a witness’s character for truthfulness or untruthfulness of a witness- also described as Prior Bad Acts of a witness – FRE 608(b) – Prior Bad Acts 5. Conviction of a Crime – FRE 609 6. Prior Inconsistent Statements 7. Impeachment by Contradiction Some modes of impeachment are admitted to show that person should NOT be believed in this particular case, and other modes of impeachment are offered to show that person should never be believed FRE 608 – NOT ALWAYS SHOWS UNTRUTHFULNESS  Bias  Ability to perceive  Prior inconsistent statement  Contradiction FRE 608 – CONVICTED OF A PREVIOUS CRIME Reflective of Truth & Veracity / Character of Witness  Conviction of a crime  Prior bad acts – specific instances of conduct  Character for Truthfulness or Untruthfulness Show witness to be a liar in this particular case Show that witness is a liar in all cases U.S.v Abel, (1984) Arian brothers in the case (Mills & Abel). Arian brotherhood is a secret organization to lie, cheat, steal to protect each other. Membership inArian brother hood is Reflective of character. Mills denies everything. Mills can be impeached during cross examination. Bias b/c they are in the same organization regardless of the type of organization. Arian brotherhood will lie, cheat and kill to protect each other, BAD to belong to in the Abstract. Small Christian church is NOT a bad thing in the abstract. Joint membership shows bias. Opposite membership shows BIAS. Case is about membership to a particular organization may show BIAS. Arian group fights to protect each other. Kill to support each other. SHOWS BIAS. Christian group. Everyone works together to help you out. Share goods with you. SHOWS BIAS. Key to case was that Abel was also a member of the Arian brotherhood. First witness in prosecution case was Ehle. The cross examination is designed to impeach Mr. Ehle. He takes the stand and says Mr. Abel committed the robbery, so cross seeks to impeach him and make Ehle less believeable. Cross question is: ―Whether he belongs to Arian nation.‖ RULES: Bias as a mode of impeachment will always be NON-COLLATERAL COLLATERAL / NON-COLLATERAL distinction must be determined for each mode impeachment Extrinsic Evidence is ALLOWED. NON-Collateral finding gives proponent of impeaching evidence the RIGHT to introduce extrinsic evidence of impeachment to prove the impeaching point. o Extrinsic Evidence is important/significant enough to show bias, attacking ability to perceive  ―Non‖ is a good thing; non-collateral o Collateral is bad; means that the evidence is not material or significant ALL extrinsic impeachment evidence is subject to FRE 403; but, court in its discretion may exclude extrinsic evidence b/c jury may sue evidence as propensity evidence. Generally, ABSOLUTE right to show that the witness has a bias. Takes A lot to exclude bias evidence. HOLDING: FRE 403 analysis must be done but hearsay, relevance or other policy concerns will keep out impeachment evidence offered to show bias b/c the issue is dispositive and under C/L carries great importance. Ct. holds that Party is able to show bias through impeachment evidence. - 33 - EVIDENCE - OUTLINE MODES OF IMPEACHMENT  May be offered by any party against any witness, including one‟s own  C/L Right to impeach is fundamental and applies to criminal / civil proceedings 1. Bias / Motive/ Influence i. Bias/ Motive / Influence 1. Encompasses many varied aspects of human behavior 2. list is NOT exhaustive and many other facts/relationships can demonstrate BIAS ii. always NON-COLLATERAL; thus, may be proven by extrinsic evidence 1. right to impeach for bias was well established in the C/L of evidence and the Supreme Ct. in Abel, held that BIAS is a right NOT altered by FRE. 2. Ability To Perceive / Sensory & Mental Incapacity i. Witness’s general ability to perceive ii. What the Witness NOW describes in his testimony iii. Includes evidences of LIMITS or DEFECTS in a witnesss’s sensory or mental capacity to 1. Show a witness’s inability to have perceived accurately or inability to relay accurately what the witness perceived iv. always NON-COLLATERAL; thus, may be proven by extrinsic evidence 3. Character Evidence for Truthfulness or Untruthfulness –FRE 608(a) i. Any witness ii. Strictly limited to Character evidence (opinion or reputation ONLY ) for 1. The proponent of the evidence is LIMITED to character evidence in the form of opinion or reputation 2. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been ATTACKED by opinion or reputations evidence or otherwise. a. NO OPEN DOOR REQUIREMENT; hand on the bible/ taking the stand, opens the door; iii. For truthfulness & untruthfulness 1. Evidence may refer to only character of truthfulness or untruthfulness iv. By DEFINITION NON-COLLATERAL v. Good Faith basis for asking the question vi. Bound by witness’s answer vii. Questions allowed to test the knowledge and judgment of the witness’s character 4. Specific Instances Of Untruthful Conduct –FRE 608(b) –Prior Bad Acts, i. Specific Past/Prior Bad Act ii. REFLECTIVE of character for truthfulness/ Veracity; 1. an act of dishonesty 2. NOT a conviction iii. ALWAYS COLLATERAL, so extrinsic evidence is NOT allowedl; 1. extrinsic evidence may be admissible under another mode of impeachment iv. However, the impeaching question may be asked INQUIRY ONLY v. On CROSS EXAMINATION ONLY vi. Requires a good faith basis 1. full proof of prior bad act is NOT required vii. Court has discretion to prohibit impeaching question 1. SEE SAMPLE QUESTIONS p. 515 for EXAM viii. Bound by response given to impeaching question as to prior inconsistent statement INQUIRY ONLY - 34 - EVIDENCE - OUTLINE 5. 6. 7. Convictions of a Crime – FRE 609 a. FRE 609 (a)(1) – conviction of a felony i. Person to be IMPEACHED must TESTIFY in the case ii. ALWAYS NON-Collateral 1. Non-Criminal Δ as witness \impeached under FRE 609(a)(1) a. FRE 403 analysis – favor admissibilty 2. Criminal Δ as witness a. REVERSE FRE 403 analysis - probative value outweighs the prejudicial effect on the accused 3. Criminal Δ or NOT witness impeached under FRE 609(a)(2) a. NO FRE 403 analysis – any crime qualifies so long as punishable by one year or more; FELONY, no honesty requirement iii. Imprisonment exceeds one year 1. potential punishment NOT actual time served iv. 10 year restriction of FRE 609(b) runs from date of conviction or from release from confinement for the conviction, whichever is LATER\ 1. if more than 10 years, evidence of conviction is inadmissible v. Misdemeanors are crimes for purposes of FRE 609 and convictions qualify to meet requirements of FRE 609(a) vi. Convictions 1. convictions at trial 2. convictions as a result of guilty 3. convictions based on nolo contendere please a. FRE fully applicable; FRE 609 an exception to FRE 410(2) b. FRE 609(a)(2) – Falsity/Dishonesty Conviction i. ALWAYS NON-Collateral 1. Introduce extrinsic evidence 2. Introduce certified dispositions, but only where there have been convictions ii. ANY crime that involves dishonesty, or false statement punishable by anything (fine, no 1 year felony confinement, etc.) 1. VERY NARROW rule: FRE 609(a)(2) is NARROWER than FRE 608(b) (evidence ―may‖ admitted) a. Not bi-furcated; NO FRE 403 analysis; Δ as witness is irrelevant; 2. Ct. is more fussy with this FRE b/c of the lack of discretion a. Evidence ―shall” be admitted if involves dishonesty or false statement / Prior Inconsistent Statement i. Statement satisfies hearsay exception FRE 801(d)(1)(A) 1. Admitted for substantive truth and impeaching point where ii. Statement does NOT satisfy FRE 801(d)(1)(A) 1. Admitted for impeaching point but NOT substantive truth iii. MUST be offered ONLY to impeach iv. Impeaching matter must NON –COLLATERAL i.e., significant, material, important v. ONLY if the inconsistency is as to AN IMPORTANT MATTER vi. If matter is determined COLLATERAL, extrinsic evidence is NOT allowedl; 1. Impeaching question may be asked INQUIRY ONLY 2. On CROSS EXAMINATION ONLY 3. Requires a good faith basis a. full proof of prior bad act is NOT required b. Court has discretion to prohibit impeaching question 4. Bound by response given to impeaching question as to prior inconsistent statement Impeachment by Contradiction i. Offer contradictory evidence to show that what a witness testified at trial is NOT true 1. done instinctively by lawyers: Counterproof is designed to destroy the credibility of the other side’s witness 2. ask witness to admit a contradictory fact on cross: If W admits contradictory fact, nothing needs 2B done ii. Good Faith evidentiary basis for asking the question iii. Collateral v. Non-Collateral Determination 1. party may open the door and allow normally inadmissible evidence to be introduced to impeach 2. Cross-examiner CANNOT open his own door through a TRAP QUESTION iv. DUAL RELEVANCE = NON-Collateral, thus, extrinsic evidence is allowed 1. DUAL RELEVANCE requires that evidence be relevant (NOT competent/admissible) to a substantial point as well as the impeaching point a. Attacks credibility of Witness but also establishes a substantive point b. NOT simply that the evidence contradicts W on some point that is unimportant or inconsequential. 2. Evidence will be excluded where it has NO relevancy apart from contradicting the witness 3. A court will not exclude evidence where it appears that the witness could NOT be innocently mistaken TO Sum up, courts generally exclude counterproof that contradicts only on a collateral point. In effect, they require dual relevancy of evidence offered to contradict a witness, for such proof must tend not only to prove that he lied or erred, but also to prove some other point that might make a difference in the case. - 35 - EVIDENCE - OUTLINE U.S. Manske, 186 F3d 770 (1999) Δ is on trial with a key witness against him. Δ seeks to show that key witness has threatened witnesses that will testify. Key Witness, Pszeniczka, said that ―he would probably die in prison.‖ Does he not have an incentive to testify against Δ. Isn’t it true that if you did not testify, you would likely die in prison. Someone from prosecutor’s office would probably be allowed to come in b/c the cross-examiner is seeking to establish BIAS. Pszeniczka made threats against witnesses in other, prior unrelated case. Δ is trying to show that in general, Pszeniczka is NOT a truthful man b/c in other cases he tampered with witnesses, but he was never convicted. RULES: Absolute right to impeach witnesses using any of the 7 modes of impeachment. Bias is an animous towards a person; favoritism towards a person BIAS is always considered non-collateral extrinsic evidence that allows introduction of such evidence despite being highly prejudicial but whose probative value as to veracity /truthfulness/dishonest of witness would inform jury as to how to weight the testimony of impeached witness No special foundational requirements of bias evidence, party may prove any fact or logical evidence to show bias A threat to cause physical harm to a person who testifies is sufficiently probative of truthfulness to permit crossexamination of the matter under FRE 608(b) HOLDING: Ct. finds that FRE 608(b) applicable here b/c he was never convicted, but those specific instances of conduct are allowed to be questioned but that is the end of it. If he had been convicted, it would be FRE 609(a)(2), a conviction involving dishonesty. Witness who lies could be tried for perjury, if evidence is available, but FRE 608(b) draws the line there, and crossexamination cannot be pursued further than the first question. Threatening witness in case, shows animous against Δ, i.e., bias, and his denial of threats can be proven by extrinsic evidence b/c bias is considered non-collateral NOTE: A man who has threatened witnesses in this particular case; What could show greater bias? If key witness denies threatening witnesses on cross examination seeking to impeach, then Δ can pursue further questioning and does not have to simply accept the answer of the key witness. Witness has a motive to slant his testimony. If he doesn’t testify how the key witness threatened him to do, then key witness would hurt the other witness - 36 - EVIDENCE - OUTLINE XIII. OPINION & EXPERT TESTIMONY FRE 701 – Opinion Testimony by Lay Witness If the witness is NOT testifying as an expert, the witness’s testimony in the form of opinions or inference that are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) NOT based on scientific, technical or other specialized knowledge within the scope of FRE 702. (p. 595-602) FRE 702 – Testimony by experts If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the witness has applied principles and methods reliably to the facts of the case. (p. 602) NOTE: Expert would undoubtedly assist the trier of fact b/c both sides will have conflicting experts . American courts rely on juries to resolve the issue that experts CANNOT resolve. Lay people can come to the scientific conclusion. England does NOT have jury trials anymore. FRE 703 – Bases of opinion testimony by experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in the forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall NOT be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.  Reverse FRE 403  Daughbert Test  Frye Test FRE 704 – Opinion on ultimate issue (a) Except as provided in subdivision (b) testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (p. 172)  Basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called ultimate issue rule is specifically abolished by the instant rule; (ACN p. 173) (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. FRE 705 – Disclosure of facts or data underlying expert opinion The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on crossexamination. (p. 175) FRE 706 – Court appointed experts: (a) Appointment (b) Compensation (c) Disclosure of appointment (d) Parties’ experts of own selection a. Scientific Evidence Some state courts continue to apply Daubert in scientific cases; NJ applies Daubert in scientific cases; NJ relaxes Daubert in some cases; relaxing general accepted rule even though it is NOT generally accepted. NJ is one of the few that continues to apply the Frye Test - 37 - EVIDENCE - OUTLINE FRE 702 – Testimony by Experts (p. 602) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the witness has applied principles and methods reliably to the facts of the case 1. Expert Testimony will Assist Trier of Fact 2. witness Qualifies as expert 3. Then Expert Opinion Allowable IF….(apply Duabert Test) 1. expert testimony is based on sufficient facts; 2. expert testimony is based on reliable principles/methodology 3. expert testimony applied reliably to this case a. Kohmo Tires is Famous case b/c it extends Daubert to all forms of expert testimony Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993) Merrell Dow is arguing that based on the studies looking at humans and their parents. One side is saying we have done human studies, published reports, subject to peer review, published in journal of American medicine. Ct. notes that adversary (Merrell) does not dispute the petitioner’s claims and published studies . One side then took the other sides exams, examined animals, etc. Under the Frye standard, the Π’s evidence /methodology must be generally accepted in the scientific community. Under Frye, the evidence would be inadmissible b/c NOT subject to peer review, not generally accepted . RULES: Frye standard Such evidence should be universally accepted in the scientific community was req’d by American courts where evidence offered as science to satisfy a special standard Supreme Court finds that Daubert applies to all forms of expert testimony Judges as GATEKEEPERS. Daubet charged fed‟l judges as gatekeepers to exclude unreliable evidence. Gatekeeper role b/c Trial judge controls the expert testimony as evidence, which must be relevant and RELIABLE. RELIABILITY determined by 2nd part of FRE 702 (Daubert test). Proponent has burden of establishing burden of admissibility HOLDING: Supreme Ct. reviews Frye (p. 628). Ct. explicitly rejects Frye as vague, manipulable, and restrictive excluding cutting edge methodologies. Supreme Ct. applies a more favorable approach than Frye. Supreme Ct. holds that FRE 702 admits evidence if the expert testimony will assist trier of fact, nothing else (no reqm‟t that testimony be generally accepted). Focus should be NOT whether or not is generally accepted, but whether it is reliable; b/c then it will assist the trier of fact. (p. 625). Daubert set forth a non-exclusive list. No attempt to codify the factors in Daubert; they were neither exclusive or dispositive. Ct. holds that Πs primary intent is authority of Frye by the adoption of FRE which supersedes Frye and supreme ct. agrees. NOTE: In 2002, rule is amended so that it formally requires that expert testimony be based on sufficient facts and date based on reliable principles and methodology as applied to the particular facts in the case. We work with FRE 702 NOT Daugbert. SEE ACN p. 163 Kohmo Tires, Kohmo Tires, issue was whether it was reasonably methodology for an expert to visually inspect the tire in question. Ct. finds that based on facts, based on expert’s opinion, based on treading, without visually seeing the tire, is a reliable application of methodology. Kohmo Tires is Famous case b/c it extends Daubert to all forms of expert testimony. Ct in Kohmo finds evidence was UNRELIABLE B/C expert did NOT review the actual tires. RULES: DAUBERT TEST applies to all cases of expert testimony. Expert testimony allowed where Specialized knowledge presented to court. Kohmo extended Daubert to all expert testimony to all forms of expert testimony. Daubert Test 1. Expert must have sufficient facts to form this opinion 2. Reliable methodology (even though NOT generally accepted) 3. Reliably apply this methodology in THIS particular case (methodology must be applied to THIS PARTICULAR CASE) See Kohmo Tires Kohmo Tires applied gatekeeper role to all forms of expert testimony: Proponent has burden of establishing burden of admissibility Reliability Factors 1. Whether evidence has been tested 2. Whether subject to peer review and publication 3. Known or potential rate of error 4. General acceptance can yet have an influence on reliability a. General acceptance has a bearing on admissibility b. Particular degree of acceptance within the community 5. FRE 702 is a flexible inquiry 6. Judge should be mindful of other FREs - 38 - EVIDENCE - OUTLINE XIV. BURDENS OF PROOF  In civil cases, When judge or jury cannot decide what happen; the person with the burden of proof loses  Who has ultimate burden of persuasion on a particular point?  In many states, if Π sues for negligence, Π has duty to prove duty, breach, causation and damages  Δ can assert contributory negligence and assumption of risk as a defense  Burden of proof is now on Δ to prove this Burden of persuasion is NOT always exclusively on the Π  Π Always will have burden of proof to prove his claims  Δ may have burden to prove defenses Burdens on Producing Evidence  Even though you do NOT have the burden of persuasion, you may have the burden of producing evidence  For instance: (1) CONFLUENCE: Π would have Burden of persuasion (proven preponderance of the evidence) and Π would have Burden of producing evidence (2) Where Δ does NOT have any burden of persuasion (preponderance of the evidence standard); NEVERTHELESS, Δ has burden of producing evidence once Π has established her case;  It may help someone who ahs burden of persuasion/production of evidence to require the adversary (other side) to produce evidence XV. JUDICIAL NOTICE Rule 201 – Judicial Notice of Adjudicative Facts (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one Not Subject To Reasonable Dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.  When trying the case, the judge can enter the directed verdict of a civil case where the evidence is overwhelming; judge directs the jury to find for the Π/Δ; judgment notwithstanding the verdict, the judge can set the damages award aside; in a civil case, judge can overturn what the jury has done  Judge cannot direct jury in a criminal case;  Jury nullification where the jury acquits the man anyway; in a criminal case, double jeopardy attaches when jury pronounces its verdict  There is NO appeal in an acquittal; there is NOTHING YOU CAN DO ONCE acquittal occurs; that is why its called jury notification; (c) When discretionary. A court may take judicial notice, whether requested or not.  Ct. can take notice on its own will  In civil case, Judge can assign judicial notice; (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it MAY, but is not required to, accept as conclusive any fact judicially noticed.  In a civil action or proceeding, the court SHALL instruct the jury to accept as conclusive any fact judicially noticed.  In a criminal case, the court shall instruct the jury that it MAY, but is not required to, accept as conclusive any fact judicially noticed.  Contrary proof must be presented when the judge is about to take judicial notice, not after judicial notice is found Must be a fact that is NOT subject to a reasonable dispute either b/c it is generally known in the territorial jurisdiction OR capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned Under FRE 201(d) if requested by a party and supplied with the necessary information; information would have to show that it is generally known within the territorial jurisdiction OR capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned  Official weather bureau record is NOT questionable  FRE 201 bypasses hearsay; IT IS BEFORE HEARSAY  Objection is HEARSAY, but if proponent presents an authoritative source and judge accepts it, and adversary can challenge reliability;  Judicial Notice bypasses everything including hearsay  Judicial notice that it did NOT rain was fine BUT CANNOT TAKE JUDICIAL NOTICE THAT pavement on that date on the intersection was dry. For instance, a leak, milk spill, rain the day before, etc. can cause it to be wet pavement - 39 - EVIDENCE - OUTLINE XVI. PRESUMPTIONS FRE 301 – Presumptions in general in civil actions and proceedings In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. FRE 302 – Applicability of State law in civil actions and proceedings In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. PRESUMPTIONS 1. Conclusive Presumption – ―Irrebutable‖ a. Certain laws establish a law that says where disease is found the diseased is entitled to medical benefits b. Once the predicate facts are ESTABILSHED that presumption would be conclusively established i. Similar to judicial notice; once judge takes judicial notice, it cannot be rebutted at trial ii. Conclusively presumed that you were intoxicated if breathalyzer reads .08 1. cannot be rebutted/ IRREBUTTABLE 2. HOWEVER, can attack predicate facts, can attack the breathalyzer, can attack officer’s training, can show that you were on medication that would have affected breathalyzer reading. BUT assuming predicate facts are established; breathalyzer was properly operated by a licensed police officer; all reqmt’s were met; 2. Mandatory Presumption a. Mandatory is redundant b/c presumption conveys this meaning b. ALSO conclusively establishes a point, BUT IT MAY BE REBUTTED i. If you Establish the predicate facts, the presumed fact is automatically established, unless BY COGENT & COMPELLING EVIDENCE it is REBUTTED ii. Conclusive cannot be rebutted; Mandatory can be through cogent & compelling evidence c. If you do NOT rebut it, mandatory presumption becomes conclusive presumption d. Cannot be rebutted by ordinary evidence. In the law we presume that a letter that is mailed is received in 3 business days; 3. Permissive Presumption – Inference a. These terms refer to conclusions that are permitted BUT NOT required; using the word presumption in this context, clouds the message, since an inference NEVER controls b. RES IPSA LOQUITOR – inference: the thing speaks for itself c. Hillman, had an permissive inference. In Pheastor, Ct. held that once they introduce evidence of a declarant’s intent of a particular act; you can infer that they did that particular act d. An inference means that you are entitled to a jury instruction on that particular point, but jury would be free to find otherwise. On conclusive & mandatory, jury is NOT permitted to find otherwise, unless rebutted.  For good reason, the law imposes certain presumptions. Otherwise, people can deny getting letter, etc. - 40 - EVIDENCE - OUTLINE XVII. PRIVILEGES FRE 501 – General Rule Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. COMPETENCY OF WITNESSES XVIII. Rule 601. General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. Rule 602. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of FRE 703, relating to opinion testimony by expert witnesses.  MUST HAVE PERSONAL KNOWLEDGE FRE 603 – Oath or Affirmation Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.  MUST BE ABLE TO TAKE OATH  Distinguish between a person being a credible witness or a COMPETENT witness  Jury will KNOW your felony record so that it goes to your CREDIBILITY, but the witness is still allowed to testify, but jury will accord proper weight  Every witness is presumed competent to testify unless it can be shown that he does not have personal knowledge (FRE 602), does not have the capacity to recall the events or does not understand the oath (FRE 603) Afowler: Guy refused to take the oath. At one point, Judge offered to accept the simple statement that he is a truthful man and will NOT tell a lie. RULES: Ct. found that witness MUST TAKE THE OATH Little 6 year old girl raped by mom’s boyfriend while mother is sleeping RULES: Ct. ruled that the 6 year old child was competent to testify; she did NOT understand concept of perjury, she know difference of truth or falsity, which is the heart of the oath requirement. Mental capacity goes to issue of weight or credibility but NOT incompetence of witness. (p. 465, 4th line of 4th para) - 41 - EVIDENCE - OUTLINE XIX. AUTHENTICATION & IDENTIFICATION –FOUNDATION EVIDENCE FRE 901 – Requirement of authentication or identification: (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. Rule 902. Self-authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. - 42 - EVIDENCE - OUTLINE (9) (10 (11) (12) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. Rule 903. Subscribing Witness' Testimony Unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.  Foundation must be established as a condition for admissibility: FRE HEARSAY  Business records  FRE 803(5)  FRE 804 – legally unavailable witness  FRE 803(6), FRE 803(8), almost all of them had some foundation requirements In real life, you did NOT establish enough for it to come in under FRE  Objection would be HEARSAY, with respect to business, the objection would be ―LACK OF FOUNDATION‖ Would this be a back door for getting in a hospital record under FRE 803(6)?  NO, The requirement of authentication or identification AS A CONDITION PRECEDENT TO ADMISSIBILITY is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.  Foundational requirements must be MET  Additional evidence must be provided  Before a gun offered as a murder weapon may be received, A PRELIMINARY SHOWING MUST BE MADE THAT IT REALLY IS THE MURDER WEAPON  Before contract, photo is admitted, preliminary showing must be made to show that the contract/photo are valid depictions  NOT A BACKDOOR WAY OF HAVING SOMETHING ADMITTED  Just b/c a letter is being authenticated, but it is excluded under FRE 408, a subsequent remedial measure; he authenticated the letter, but party objects to the admission of the letter b/c it is HEARSAY, PREJUDICIAL, FRE 407, IMPROPER CHARACTER EVIDENCE Under FRE 902, certain business records are self-authenticating  Someone through a certification explains those foundation requirements  Foundation requirements are being met    FRE 901 is a condition precedent, establishing authentication, NOT A WAY OF GETTING IN EVIDENCE THAT WOULD OTHERWISE BE EXCLUDED  Authenticate it and then show that it is relevant, NOT hearsay, etc.  Authentication is 1st step to foundation - 43 - EVIDENCE - OUTLINE XX. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPH THE BEST EVIDENCE DOCTRINE An official public document, under seal is BEST EVIDENCE.  No need to authenticate it as a CONDITION PRECEDENT TO ITS ADMISSIBILITY, evidence may still be objectionable, inadmissible under other FREs. (May violate FRE 403, may be hearsay, etc.)  Saves people time of bringing in custodial of the records just to lay an FRE 803(6) foundation Rule 1001. Definitions For purposes of this article the following definitions are applicable: (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. Rule 1002. Requirement of Original To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. Rule 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as an original UNLESS (1) a genuine question is raised as to the authenticity of the original OR (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-Rule 1004. Admissibility of Other Evidence of Contents (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; OR (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; OR (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; OR (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. Rule 1005. Public Records The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. Rule 1006. Summaries The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. Rule 1007. Testimony or Written Admission of Party Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. Rule 1008. Functions of Court and Jury When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. - 44 -