evidence short outline

EVIDENCE SHORT OUTLINE I. GENERAL PROVISIONS ................................................................................. 6 A. B. C. D. 1. 2. LIMITED ADMISSIBILITY ...............................................................................................6 LIMITING INSTRUCTION ...............................................................................................6 PRESERVING ERROR FOR APPEAL ..............................................................................6 PRELIMINARY FACT QUESTIONS FOR THE COURT ..................................................6 COURT DECIDES WHETHER THE PRELIMINARY FACT IS PROVED UNDER THE POTE STANDARD ........ 6 JURY GETS TO DECIDE A FEW (BARK) ...................................................................................................... 6 II. RELEVANCY ...................................................................................................... 7 A. GENERAL PRINCIPLES OF RELEVANCY......................................................................7 1. 2. 3. 4. 5. DEFINITION OF RELEVANCY ....................................................................................................................... 7 TWO ASPECTS OF RELEVANCY ................................................................................................................... 7 RELEVANCY VS. SUFFICIENCY .................................................................................................................... 7 DIRECT V. CIRCUMSTANTIAL EVIDENCE ................................................................................................... 7 CONDITIONAL RELEVANCY ........................................................................................................................ 7 B. REASONS FOR EXCLUDING RELEVANT EVIDENCE ..................................................7 C. SIMILAR HAPPENING EVIDENCE (SHE) ......................................................................7 1. 2. 3. 4. 5. 6. 1. 2. 3. 4. 5. 1. 2. 3. 4. SHE: IN GENERAL ................................................................................................................................... 7 SHE: TO PROVE PRIOR SUBSEQUENT ACCIDENTS ................................................................... 7 SHE: TO PROVE OTHER CONTRACTS OR DEALINGS TO PROVE TERMS ......................... 8 SHE: TO PROVE OTHER CONTRACTS OR DEALINGS TO PROVE AGENCY ...................... 8 SHE: TO PROVE NON-OBSERVATION AND NON-OCCURRENCES ........................................ 8 SHE: PREVIOUS CLAIMS OR LAWSUITS TO IMPEACH PRESENT CLAIM ......................... 8 ELEMENTS..................................................................................................................................................... 9 REMEDIAL MEASURE DEFINED .................................................................................................................... 9 REASON FOR EXCLUSION ............................................................................................................................. 9 INADMISSIBLE IF PROVING NEGLIGENCE OR CULPABLE CONDUCT ......................................................... 9 PROPER USES OF SRM ................................................................................................................................. 9 REASON FOR EXCLUSION ............................................................................................................................ 9 EXPRESS ADMISSIONS DURING NEGOTIATIONS........................................................................................ 9 DISPUTE R EQUIREMENTS .......................................................................................................................... 10 PROPER USES OF COMPROMISE EVIDENCE............................................................................................. 10 D. SUBSEQUENT REMEDIAL MEASURES (SRM) ..............................................................8 E. COMPROMISE OR OFFERS TO COMPROMISE ...........................................................9 F. OFFERS TO PAY MEDICAL OR SIMILAR EXPENSES.................................................10 G. OFFERS TO PLEAD ......................................................................................................10 H. CHARACTER EVIDENCE ..............................................................................................10 1. 2. 3. 4. 5. 6. THREE STEP PROCESS ............................................................................................................................... 10 POSSIBLE U SES OF CHARACTER EVIDENCE ............................................................................................ 10 METHODS OF PROVING CHARACTER ....................................................................................................... 11 EXCEPTIONS TO GENERAL RULE: WHEN CHARACTER EVIDENCE IS ADMISSIBLE ................................ 12 EVIDENCE OF PAST SEXUAL BEHAVIOR .................................................................................................... 13 SEXUAL ASSAULT AND CHILD MOLESTATION CASES ............................................................................... 14 I. 1. 2. HABIT OR ROUTINE PRACTICE ..................................................................................14 HABIT AND CHARACTER EVIDENCE DISTINGUISHED ............................................................................. 14 ROUTINE PRACTICE ................................................................................................................................... 14 III. HEARSAY .......................................................................................................... 14 A. HEARSAY .......................................................................................................................14 1. 2. 3. 1. 2. 3. 4. 1. 2. 3. 1. 2. 3. 4. 5. HEARSAY D EFINED .................................................................................................................................... 14 THE HEARSAY PROBLEM .......................................................................................................................... 14 BASIC HEARSAY 3 STEP ANALYSIS........................................................................................................... 14 EFFECT OF THE STATEMENT ON LISTENER ............................................................................................. 15 STATE OF MIND OF DECLARANT .............................................................................................................. 15 LEGALLY OPERATIVE FACTS ................................................................................................................... 15 IMPEACHMENT AND REHABILITATION .................................................................................................... 15 OUT OF COURT ........................................................................................................................................... 15 STATEMENT ................................................................................................................................................. 15 DECLARANT ................................................................................................................................................ 15 EXPLICIT NON -VERBAL ASSERTIONS ARE HEARSAY ............................................................................. 15 NON-VERBAL CONDUCT INTENDED AS AN ASSERTION ARE HEARSAY ................................................. 15 NON-VERBAL CONDUCT N OT INTENDED AS AN ASSERTION ................................................................. 16 NON-ASSERTIVE VERBAL CONDUCT ....................................................................................................... 16 VERBAL ASSERTIONS USED INFERENTIALLY .......................................................................................... 16 B. NOT ALL OUT OF COURT STATEMENTS ARE HEARSAY ..........................................15 C. SOME DEFINITIONS.....................................................................................................15 D. MORE SOPHISTICATED HEARSAY PROBLEMS .........................................................15 E. MULTIPLE HEARSAY....................................................................................................16 IV. DEFINED AS NON-HEARSAY BY EXEMPTION ..................................... 16 A. B. C. D. 1. 2. 3. 4. PRIOR INCONSISTENT STATEMENTS.........................................................................16 PRIOR CONSISTENT STATEMENTS.............................................................................16 PRIOR STATEMENT BY IDENTIFICATION .................................................................16 ADMISSIONS BY PARTY OPPONENT ..........................................................................16 PARTY’ S O WN STATEMENTS ..................................................................................................................... 16 ADOPTIVE ADMISSIONS ............................................................................................................................. 16 VICARIOUS ADMISSIONS BC OF EMPLOYMENT RELATIONSHIP ............................................................. 17 CO-CONSPIRATOR ADMISSIONS ............................................................................................................... 17 V. HEARSAY EXCEPTIONS .............................................................................. 17 A. AVAILABILITY OF DECLARANT IMMATERIAL ..........................................................17 1. 2. 3. 4. 5. 6. 7. 1. 2. 3. 4. 5. SPONTANEOUS STATEMENTS .................................................................................................................... 17 STATE OF MIND: MENTAL OR PHYSICAL C ONDITION ........................................................................... 17 BUSINESS RECORDS .................................................................................................................................... 18 PUBLIC RECORDS AND R EPORTS .............................................................................................................. 18 LEARNED TREATISES ................................................................................................................................. 18 PAST R ECOLLECTIONS R ECORDED .......................................................................................................... 19 CATCH-ALL EXCEPTION: EQUIVALENT TRUSTWORTHINESS ............................................................... 19 UNAVAILABILITY DEFINED ....................................................................................................................... 20 DYING DECLARATIONS .............................................................................................................................. 20 DECLARATIONS AGAINST INTEREST ........................................................................................................ 20 FORMER TESTIMONY ................................................................................................................................. 20 STATEMENTS OF PERSONAL OR FAMILY HISTORY ................................................................................ 20 B. UNAVAILABILITY OF DECLARANT REQUIRED.........................................................20 2 VI. CONFRONTATION CLAUSE ........................................................................ 21 A. B. C. D. E. PURPOSES OF THE CONFRONTATION CLAUSE ......................................................21 NO CONFRONTATION CLAUSE PROBLEM IF HEARSAY DECLARANT TESTIFIES 21 IF DECLARANT DOES NOT TESTIFY, THE EARLY TWO PART TEST IS UTILIZED. 21 CONFRONTATION CLAUSE AND EXCEPTIONS ........................................................21 WHEN A WITNESS TESTIFIES AS TO HIS CURRENT BELIEF BUT IS UNABLE TO RECOLLECT THE REASON FOR THAT BELIEF. ........................................................21 F. FIRMLY ROOTED HEARSAY EXCEPTION AND TRUSTWORTHINESS......................21 VII. WITNESSES & IMPEACHMENT .............................................................. 22 A. COMPETENCY OF WITNESSES ...................................................................................22 B. IMPEACHMENT IN GENERAL .....................................................................................22 1. 2. IMPEACHING ONE’ S OWN WITNESS ........................................................................................................... 22 TECHNIQUES OF IMPEACHMENT ............................................................................................................... 22 VIII. OPINIONS AND EXPERT TESTIMONY.................................................. 24 A. LAY WITNESSES ............................................................................................................24 1. 2. 1. 2. 3. 4. OBJECTIVE .................................................................................................................................................. 24 REQUIREMENTS .......................................................................................................................................... 24 SUBJECT M ATTER ...................................................................................................................................... 24 QUALIFICATIONS........................................................................................................................................ 24 BASIS OF EXPERT OPINION ....................................................................................................................... 24 EXAMINATION OF EXPERT WITNESSES ................................................................................................... 24 B. EXPERT WITNESSES.....................................................................................................24 IX. AUTHENTICATION OF EVIDENCE ........................................................... 25 A. AUTHENTICATION .......................................................................................................25 1. 2. 1. 2. 1. 2. 3. 1. 2. 1. 2. 3. 4. 5. 6. CONDITIONAL RELEVANCE STANDARD .................................................................................................... 25 REAL AND DEMONSTRATIVE EVIDENCE .................................................................................................. 25 PERSONAL KNOWLEDGE ........................................................................................................................... 25 AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE, SUCH AS ............................................................. 25 PERSONAL KNOWLEDGE ........................................................................................................................... 26 AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE, SUCH AS ............................................................. 26 PHOTOS, MAPS, OR MODELS .................................................................................................................... 26 PERSONAL KNOWLEDGE ........................................................................................................................... 26 AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE.............................................................................. 26 COMMERCIAL PAPER ................................................................................................................................ 27 OFFICIAL PUBLICATION ............................................................................................................................ 27 NEWSPAPERS AND PERIODICALS .............................................................................................................. 27 TRADE INSCRIPTIONS AND THE LIKE ....................................................................................................... 27 ACKNOWLEDGED DOCUMENTS ................................................................................................................ 27 CERTAIN PUBLIC RECORDS ...................................................................................................................... 27 B. AUTHENTICATION OF WRITINGS ..............................................................................25 C. AUTHENTICATION OF OBJECTS ................................................................................26 D. AUTHENTICATION OF VOICES...................................................................................26 E. SELF-AUTHENTICATION .............................................................................................26 3 X. BEST EVIDENCE RULE ................................................................................ 27 A. BEST EVIDENCE RULE ................................................................................................27 B. ANALYSIS OF A BER PROBLEM ..................................................................................27 1. 2. 3. 4. PROVING THE CONTENTS OF A WRITING .................................................................................................. 27 WRITING, RECORDING , PHOTO DEFINED ................................................................................................. 27 ORIGINAL DEFINED .................................................................................................................................... 27 EXCEPTIONS ............................................................................................................................................... 28 XI. PRIVILEGES .................................................................................................... 28 A. PRIVILEGES IN GENERAL ...........................................................................................28 1. 2. 3. 4. 1. 2. 3. 4. 5. 6. 1. 2. 3. 4. 5. 6. 1. 2. RATIONALE ................................................................................................................................................. 28 SCOPE OF PRIVILEGE ................................................................................................................................. 28 COMMUNICATIONS ARE PRIVILEGED , INFORMATION IS NOT ................................................................ 28 ATTACK PLAN ............................................................................................................................................ 28 ATTORNEY CLIENT R ELATIONSHIP ......................................................................................................... 29 COMMUNICATION ...................................................................................................................................... 29 CONFIDENTIALITY ..................................................................................................................................... 29 CLIENT IS HOLDER ..................................................................................................................................... 30 PRIVILEGE MAY BE WAIVED .................................................................................................................... 30 EXCEPTIONS ............................................................................................................................................... 30 PHYSICIAN PATIENT R ELATIONSHIP ........................................................................................................ 30 COMMUNICATIONS..................................................................................................................................... 30 CONFIDENTIALITY ..................................................................................................................................... 30 PATIENT IS HOLDER ................................................................................................................................... 30 WAIVER ....................................................................................................................................................... 30 MOST COMMON EXCEPTIONS .................................................................................................................. 31 PSYCHOTHERAPIST-PATIENT R ELATIONSHIP ......................................................................................... 31 EXCEPTIONS ............................................................................................................................................... 31 B. ATTORNEY-CLIENT PRIVILEGE..................................................................................29 C. PHYSICIAN-PATIENT PRIVILEGE ...............................................................................30 D. PSYCHOTHERAPIST-PATIENT PRIVILEGE ................................................................31 E. ACCOUNTANT CLIENT-PRIVILEGE............................................................................31 F. MARITAL PRIVILEGES .................................................................................................31 1. 2. MARITAL COMMUNICATIONS PRIVILEGE ............................................................................................... 31 MARITAL T ESTIMONIAL PRIVILEGE ........................................................................................................ 32 G. H. I. J. K. L. M. N. 1. 2. 3. PRIEST PENITENT PRIVILEGE ....................................................................................32 PARENT CHILD PRIVILEGE ........................................................................................32 GOVERNMENT INFORMANT PRIVILEGE...................................................................32 JOURNALIST PRIVILEGE .............................................................................................32 SCHOLAR’S PRIVILEGE ...............................................................................................32 PEER REVIEW PRIVILEGE...........................................................................................32 SELF-EVALUATIVE PRIVILEGE ..................................................................................33 GOVERNMENT/EXECUTIVE PRIVILEGE....................................................................33 STATE SECRETS PRIVILEGE ...................................................................................................................... 33 PRESIDENTIAL COMMUNICATIONS PRIVILEGE....................................................................................... 33 OFFICIAL INFORMATION PRIVILEGE ....................................................................................................... 33 4 XII. JUDICIAL NOTICE ...................................................................................... 33 A. JUDICIAL NOTICE........................................................................................................33 1. 1. 2. RATIONALE ................................................................................................................................................. 33 ADJUDICATIVE FACTS ............................................................................................................................... 33 PROCEDURES .............................................................................................................................................. 34 B. THREE TYPES OF JUDICIAL NOTICE ........................................................................33 XIII. BURDENS OF PROOF AND PRESUMPTIONS ...................................... 34 A. BURDEN OF PRODUCTION ........................................................................................34 1. 2. 3. 1. 2. 3. RATIONALE ................................................................................................................................................. 34 ROLE OF BURDEN OF PRODUCTION ......................................................................................................... 34 RELATIONSHIP BETWEEN IT AND PERSUASION BURDEN ........................................................................ 34 ROLE OF THE BURDEN OF PERSUASION ................................................................................................... 35 THE R ELATIVE N ATURE OF THE BURDEN OF PERSUASION ................................................................... 35 THE ALLOCATION OF THE BURDEN OF PERSUASION ............................................................................. 35 B. BURDEN OF PERSUASION ..........................................................................................34 5 EVIDENCE SHORT OUTLINE I. GENERAL PROVISIONS A. LIMITED ADMISSIBILITY Evidence may be admissible for one purpose but not another, or admissible against one party but not another. May be admitted under the doctrine of limited admissibility. B. LIMITING INSTRUCTION When evidence is admissible only for limited purpose, judge must, upon request, instruct the jury to consider the evidence only for the admissible purpose. C. PRESERVING ERROR FOR APPEAL Must take all required steps to preserve for appeal erroneous rulings by trial judge regarding admission or exclusion of evidence. Party now complaining must have done everything necessary to inform the judge of the evidence rule in question and its application to the evidence in question. D. PRELIMINARY FACT QUESTIONS FOR THE COURT Admissibility or inadmissibility of evidence sometimes turns on the existence or nonexistence of some preliminary fact. Sometimes it is the judge that decides these; other times it is the jury. 1. COURT DECIDES WHETHER THE PRELIMINARY FACT IS PROVED UNDER THE POTE STANDARD (a) whether a witness is qualified as an expert (b) whether a statement is hearsay (c) whether a statement falls within an exception (d) whether a statement is privileged 2. JURY GETS TO DECIDE A FEW (BARK) (a) Best Evidence Rule (b) Authenticity (c) Relevance (d) Knowledge 6 II. RELEVANCY Basic Rule: Evidence must be relevant to be admissible, but not all relevant evidence is admissible A. GENERAL PRINCIPLES OF RELEVANCY 1. DEFINITION OF RELEVANCY Under FRE 401, a piece of evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would without that piece of evidence. 2. TWO ASPECTS OF RELEVANCY (1) the evidence must logically tend to prove what it is offered to prove (2) it must be offered to prove something that relates to an issue that the substantive law deems of consequence to the outcome of the case. 3. RELEVANCY VS. SUFFICIENCY Evidence may be relevant even though it is not by itself adequate to sustain a verdict. 4. DIRECT V. CIRCUMSTANTIAL EVIDENCE (a) Direct Evidence = proves a fact directly and no inference need be drawn (b) Circumstantial Evidence = requires the factfinder to draw inferences from the evidence in order to conclude that some consequential fact exists 5. CONDITIONAL RELEVANCY Evidence is conditionally relevant when its relevancy depends on existence of another fact that has not yet been proved. Court should admit such evidence either (a) upon an introduction of evidence sufficient to support a finding of the existence of the other fact or (b) subject to the introduction of such evidence. B. REASONS FOR EXCLUDING RELEVANT EVIDENCE (1) Extrinsic social policies (goal of promoting some other social concern) (2) Probative value outweighed by danger that it will confuse or prejudice the jury, or will waste time. (3) FRE 403 requires the court to exclude relevant evidence when its probative value is substantially outweighed by countervailing concerns such as danger of unfair prejudice, confusion or issues, or misleading the jury, or by consideration of judicial efficiency. C. SIMILAR HAPPENING EVIDENCE (SHE) 1. SHE: IN GENERAL Issue arises when party wishes to use evidence of other events or transactions between parties now involved in litigation, or involving other parties similarly situated, as proof of occurrence in question. Generally, courts are reluctant to admit such evidence bc the probative value if outweighed by countervailing concerns. But there are situations where the court will admit evidence of similar happenings evidence, generally under FRE 410-406: 2. SHE: TO PROVE PRIOR SUBSEQUENT ACCIDENTS Evidence of other accidents or injuries offered to prove negligence of party or dangerousness of condition is admissible if proponent shows that other accidents or injuries occurred under substantially similar conditions. But court may still determine that probative value is 7 substantially outweighed by danger of confusion or waste of time and therefore exclude the evidence. 3. SHE: TO PROVE OTHER CONTRACTS OR DEALINGS TO PROVE TERMS Where dispute exists as to terms of contract between parties, evidence of other similar contracts between parties is generally admissible. On the other hand, similar contracts between other persons is generally inadmissible. 4. SHE: TO PROVE OTHER CONTRACTS OR DEALINGS TO PROVE AGENCY When authority of agent to make contract is disputed, evidence of similar contracts entered into by purported agent ordinarily admissible even if parties are different. 5. SHE: TO PROVE NON-OBSERVATION AND NON-OCCURRENCES Using evidence that event or condition was not observed, or that other injuries did not occur, to prove the non-existence of the event, condition, or injury. a. Non-Observation to Prove Non-Occurrence in General Ordinarily, such evidence inadmissible unless proponent shows that event or condition probably would have been observed had it occurred. b. Absence of Business Record to Prove Non-Occurrence May prove that event or transaction did not occur by evidence that there is no business record of such an event or transaction upon showing that it is the business practice to regularly record all such events or transactions. c. Absence of Similar Accidents Evidence that place, particular product, or similar product has been used over period of time without any accident occurring similar to one in issue is admissible if proponent establishes (1) place or product involved was used a significant number of times under substantially similar conditions or circumstances and (2) witness would have heard of any previous accidents. 6. SHE: PREVIOUS CLAIMS OR LAWSUITS TO IMPEACH PRESENT CLAIM Defendant may seek to offer evidence of prior similar charges made by plaintiff or complainant. a. Chronic Litigant Evidence that tends to show only that plaintiff or complainant is chronic litigant is inadmissible. b. Prior Fraudulent Claims If Plaintiff has previously made similar fraudulent claims, such evidence is admissible to prove falsity of present claim. D. SUBSEQUENT REMEDIAL MEASURES (SRM) Under FRE 407, evidence that a party took remedial measures following the occurrence of an accident or injury is inadmissible to prove the party’s negligence or culpable conduct. 8 1. ELEMENTS Exclusionary rule applies only if (1) a party (2) is engaged in some remedial measure (3) after the accident or injury that is subject of suit. See FRE 407. 2. REMEDIAL MEASURE DEFINED Any measure that would have made the accident or injury less likely to occur. 3. REASON FOR EXCLUSION To promote the extrinsic policy of encouraging parties to take safety measures. Based on the belief that parties are less likely to take safety precautions if they fear that this will be used against them in subsequent litigation. 4. INADMISSIBLE IF PROVING NEGLIGENCE OR CULPABLE CONDUCT Excludes evidence of an SRM only when offered to prove a party’s negligence or culpable conduct. 5. PROPER USES OF SRM SRM evidence offered to prove something other than the party’s negligence or culpable conduct is admissible. a. Ownership or control To prove ownership or control. (e.g.  offers evidence that after the accident, the general contractor erected a fence around the site to prove safety matters were in the control of ) b. Feasibility of Precautionary Measures If party claims that product, policy, site, etc. could not have been manufactured or operated in safer way, evidence of SRM admissible to show change was feasible. (e.g.,  offers evidence of SRM showing that after the injury,  changed the design of its saws to protect users from flying wood chips) c. Impeachment To impeach the party’s testimony. (e.g.,  sues  for poorly manufacturing a gun and during trial the  says that the gun was perfectly made.  can bring in evidence that  changed its design of the gun to demonstrate that the  is not credible) E. COMPROMISE OR OFFERS TO COMPROMISE Under FRE 408, fact that a party offered to settle a claim or actually settled claim inadmissible to prove validity of claim or value of claim. 1. REASON FOR EXCLUSION Based on extrinsic social policy of encouraging out of court settlements. At CL, also some feeling that such evidence was irrelevant bc the offer to compromise might result from desire to avoid lawsuit, as much as a belief that one was not liable. 2. EXPRESS ADMISSIONS DURING NEGOTIATIONS Evidence of conduct or statements made during compromise negotiations also inadmissible. This includes express admissions made during negotiations. 9 3. DISPUTE REQUIREMENTS Rule protects settlement evidence only if offer, settlement, or statement is related to claim that was disputed either as to liability or amount of damages. 4. PROPER USES OF COMPROMISE EVIDENCE Compromise evidence inadmissible only when offered to prove validity or invalidity of a claim or amount of damages, May be admissible if offered for another purpose: a. Bias or Prejudice To prove bias or prejudice of another witness. (e.g., “Didn’t  just pay you $10,000 to settle a claim against her?”) b. Undue Delay To rebut a contention of undue delay. (e.g., To rebut a claim that  delayed unduly to file a lawsuit,  can bring in evidence that she delayed bc she was negotiating a settlement with ) c. Suit on a Compromise Agreement When  bring an action to enforce the terms of settlement agreement, evidence of the agreement is admissible. F. OFFERS TO PAY MEDICAL OR SIMILAR EXPENSES FRE 409 excludes offers to pay or actual payment of medical, hospital, or similar expenses occasioned by an injury. Does not ban other statements made in connection with the offer, e.g., statements of fault. G. OFFERS TO PLEAD To facilitate the plea bargaining process, certain pleas are inadmissible in either a civil or criminal proceeding against  who made the plea. Neither a withdrawn guilty plea nor a nolo contendere (no contest) plea regardless of whether it is withdrawn may be used against the . Evidence of a guilty plea that is not withdrawn is NOT PROTECTED and is ADMISSIBLE. FRE 410 also protects statements made during plea discussions and the actual plea process. H. CHARACTER EVIDENCE 1. THREE STEP PROCESS (i) What is the evidence being offered to prove? (ii) May character evidence be used to prove this? If so, ask the third question. (iii) How may character be proved? 2. POSSIBLE USES OF CHARACTER EVIDENCE a. Character as an Element of a Claim or Defense A person’s character might itself be an element of a crime, claim or defense. In such a case, evidence of the person’s character will be a direct evidence of a fact critical to the case. When character is itself an element of a claim or defense, evidence of character is admissible under FRE 405(b). 10 (1) Negligent Entrustment or Hiring When  claims that  negligently entrusted his car to Driver, Driver’s Character as an unreliable driver is something that  must prove to make out his claim. (2) Defamation –Truth as a Defense When  in a libel or slander case asserts truth as a defense, the character of the  becomes an element of ’s defense. (3) Entrapment Some versions of the entrapment defense to a criminal charge focus on ’s predisposition to commit the crime, making the ’s character an element of some entrapment defenses. (4) Custody Action Courts may consider a party’s character in deciding who should have custody of the child. (5) Mental Condition or Competency In cases raising issues such as the sanity of the , competency of testator to make a will, or mental condition of respondent to a civil commitment proceeding, character is an element of the claim or defense. (6) Proving Character When it is an Element of a Claim or Defense May be proved through reputation, opinion testimony, or a specific instance of conduct. b. Character Evidence to Prove Conduct A party might want to introduce evidence of someone’s conduct in order to prove how that person acted on a particular occasion, i.e., as circumstantial evidence from which jury is to infer that the person acted in conformity with his character on the occasion in question. (1) General Rule: Inadmissible to Prove Conduct Character evidence is not admissible as circumstantial evidence that a person acted in conformity with his character on a particular occasion. FRE 404(a) (2) Rationale Probative value is outweighed by the danger of prejudice. Jury is likely to rule against the  bc they have decided the  is a bad person. c. Non-Character Evidence Sometimes evidence looks and sounds a lot like character evidence, but is really not. (1) Self-Defense – Pre-Emptive Strike If theory of self-defense is that  reasonably feared victim was about to inflict severe bodily harm on him and so struck the first blow, victim’s character is not the issue; what the  reasonably believed about the victim is. (2) Injury to Reputation In defamation cases, damages are measured according to injury to ’s reputation, not his character. 3. METHODS OF PROVING CHARACTER In theory at least, three ways that might be used to prove a person’s character: 11 a. Reputation Evidence of a person’s reputation in the community. Reputation witness must have knowledge of the person’s reputation, although witness need not actually know the person. Witness may NOT give reasons why that reputation exists. FRE 415(a) b. Opinion Witness may testify to opinion of another person’s character. Witness may only state opinions of another person’s character. May NOT give reasons why she holds that opinion. FRE 415(a) c. Specific Acts Evidence that a person has engaged in specific acts might tend to establish that person’s character. This method presents the greatest danger of unfair prejudice, being time consuming, and resulting in a weak inference from character to action, and so use is limited. Specific instances may be used only when (i) character is itself an element of a claim or defense FRE 405(b) (ii) when defendant’s character is at issue in a sexual assault/child molestation case FRE 413, 414, 415 (iii) when evidence of specific acts is not offered to prove a person’s character and where there is no propensity inference resulting. FRE 404(b) (iv) when  offers evidence of good character and thereby places character at issue [FRE 404(a)(1)], prosecution may ask defense witness whether she had heard of specific acts of the  that would reflect badly on the ’s reputation to test how well the defense witness knows the defendant. FRE 405(a) Specific Acts MAY NOT be used when character is being offered to prove conduct in conformity to ’s character or victim’s character. 4. EXCEPTIONS TO GENERAL RULE: WHEN CHARACTER EVIDENCE IS ADMISSIBLE General rule is that evidence of a person’s character is not admissible to prove conduct in conformity with that character on a particular occasion. This general rule applies in both civil and criminal cases. However, there are three important exceptions: a. Character of the Accused Put in Issue Under FRE 404(a)(1), Criminal  may open the door to ’s own peaceable character, in which case the prosecution in rebuttal may offer evidence of ’s character to the contrary. (1) Must be Pertinent Character trait (2)  Can Put Character at Issue Only By Reputation and Opinion Testimony (3) Prosecutor May Rebut, but only by Reputation and Opinion Testimony. Prosecutor Cannot Ask About Specific Acts of conduct committed by  (4) Prosecution may ask ’s reputation witness whether witness “had heard” about specific acts of  that would reflect badly on ’s reputation. FRE 403(A). Purpose is to impeach testimony of the character witness. 12 b. Character of the Victim Put in Issue Under FRE 404(a)(2), Criminal  may open the door to the victim’s aggressive character to prove ’s innocence, in which case the prosecution in rebuttal may offer evidence of the victim’s peaceful character to the contrary (1) Self-Defense: Victim as First Aggressor Evidence of victim’s aggressive character is offered as evidence that victim acted in conformity with his violent nature on that occasion to prove that victim started the fight. (2)  can Only Use Reputation and Opinion Testimony to Prove Victim’s Character (3) Prosecution May Rebut By Calling Its Own Reputation and Opinion Witnesses To Testify To Victim’s Good Character. c. Character to Attack or Support Credibility Any party may introduce character evidence for impeachment and rehabilitation purposes to the extent allowed by FRE 607-609. 5. EVIDENCE OF PAST SEXUAL BEHAVIOR a. Criminal Cases – General Rule FRE 412 severely limits, in any criminal proceeding involving the alleged sexual misconduct, the admissibility of evidence of an alleged victim’s other sexual behavior or predisposition. (1) Other sexual behavior Under FRE 412(a)(1), evidence that any alleged victim engaged in other sexual behavior (actual physical contact, activities that imply sexual contact) is generally inadmissible, as is reputation and opinion evidence. (2) Sexual Predisposition Under FRE 412(a)(2), evidence offered to prove an alleged victim’s sexual predisposition is inadmissible. b. Criminal Cases - Exceptions (1) To Prove Source of Semen or Injury FRE 412(b)(1)(A) (2) Accused May offer Evidence of Specific Instances of Sexual Behavior Involving Alleged Victim and Accused to Prove Consent FRE 412(b)(1)(B) (3) When Constitutionally Required by Confrontation Clause or DPC. FRE 412(b)(1)(C) 13 6. THIRD EXCEPTION TO CHARACTER EVIDENCE RULE IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES a. Criminal Cases In criminal cases where  is charged with sexual assault or child molestation, the prosecution may offer evidence that  has committed other acts or sexual assault or child molestation for its bearing on any relevant matter, including evidence of the ’s character. FRE 413(a) b. Civil Cases In civil cases in which a damage claim is predicated on the commission of a sexual assault or act of child molestation, evidence may be offered that a party committed other acts of sexual assault or child molestation for its bearing on any relevant matter, including evidence of the party’s character. I. HABIT OR ROUTINE PRACTICE FRE 406 specifies that evidence of a person’s habit is admissible to prove that a person acted in accordance with that habit on a particular occasion. 1. HABIT AND CHARACTER EVIDENCE DISTINGUISHED Habit = typically regarded as a regular response to a repeated specific situation that can be observed. Character = related to a generalized description of a disposition or trait. 2. ROUTINE PRACTICE Organization’s custom or routine practice admissible to prove that organization acted in conformity with its routine practice on the occasion in question. III. HEARSAY Basic Rule is that hearsay evidence is inadmissible UNLESS it falls within an exception to the hearsay rule. A. HEARSAY 1. HEARSAY DEFINED A statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence for the truth of the matter asserted. FRE 801(c) 2. THE HEARSAY PROBLEM Problem arises when a witness testifies to an out-of-court statement and the probative value of the statement depends on the credibility – sincerity, communicative ability, perception, and memory – of the person who made the out-of-court statement. 3. BASIC HEARSAY 3 STEP ANALYSIS a. Is there an out of court statement? Statement may be (a) oral, (b) written, or (c) conduct intended as a substitute for words. b. If so, what is it being offered to prove? If offered to prove the truth of the matter asserted and we care about the credibility of the declarant, it is hearsay. 14 If offered to merely prove statement was made and we do not care if the declarant is lying or was mistaken, it is NOT hearsay. c. Does the probative value depend on the credibility of the declarant? If yes, it is hearsay. If no, then it is not hearsay. B. NOT ALL OUT OF COURT STATEMENTS ARE HEARSAY 1. EFFECT OF THE STATEMENT ON LISTENER Where importance of statement derives from effect it had on the listener, it is not hearsay. 2. STATE OF MIND OF DECLARANT If state of mind of a declarant is relevant, statement made by him may be circumstantial evidence of state of mind, regardless of its truth. 3. LEGALLY OPERATIVE FACTS The substantive law imbues some statements with legal significance, e.g. words of contract, statements of donative intent, statements indicating open or hostile possession, words of libel or slander. Also referred to as “verbal acts” or words of “independent legal significance.” 4. IMPEACHMENT AND REHABILITATION Prior statements of witness offered to impeach or rehabilitate him are not offered for their truth and are not hearsay. C. SOME DEFINITIONS 1. OUT OF COURT Any statement other than the one made by a witness while testifying at the present hearing is “out of court,” even if it was made at a previous hearing. 2. STATEMENT Statement may be (a) oral, (b) written, or (c) conduct intended as a substitute for words. FRE 801(a) 3. DECLARANT Person who made the out-of-court statement. A witness and a declarant can be the same person. FRE 801(b). D. MORE SOPHISTICATED HEARSAY PROBLEMS To determine whether such out of court statements are hearsay, figure out which category it falls under. 1. EXPLICIT NON-VERBAL ASSERTIONS ARE HEARSAY Under FRE 801(A)(2), verbal statements (oral or written) that assert directly what they are introduced to prove are hearsay. 2. NON-VERBAL CONDUCT INTENDED AS AN ASSERTION ARE HEARSAY Under FRE 801(A)(2), an act or gesture intended to convey a message offered as proof of that message is hearsay. 15 3. NON-VERBAL CONDUCT NOT INTENDED AS AN ASSERTION An act or gesture not intended to convey a message, but that is offered into evidence that the actor believed something and that the belief was accurate. 4. NON-ASSERTIVE VERBAL CONDUCT Declarant used words but does not intend to make an assertion. Nevertheless, his statement is offered as evidence of something implicit in the statement. 5. VERBAL ASSERTIONS USED INFERENTIALLY Although declarant makes a verbal assertion, his statement is offered to prove something implicit in the statement rather than the truth of the statement itself. E. MULTIPLE HEARSAY When evidence contains at least two separate out-of-court statements, each of which is offered for its truth. (e.g., he said that she said…) Analyze each hearsay statement separately and determine whether each is hearsay. Look for an exception to each hearsay. Only admissible if each one falls into an exception. IV. DEFINED AS NON-HEARSAY BY EXEMPTION A. PRIOR INCONSISTENT STATEMENTS Under FRE 801(D)(1)(A), Out-of-court statement is inconsistent with witness’ trial testimony and statement was (a) given under oath, (b) subject to penalty of perjury, (c) at some other trial, hearing, proceeding, or deposition. B. PRIOR CONSISTENT STATEMENTS Under FRE 801(D)(1)(B), Out-of-court statement is consistent with witness’s trial testimony and is offered to rebut the charge of recent fabrication or improper motivation or influence. C. PRIOR STATEMENT BY IDENTIFICATION Under FRE 801(D)(1)(C), Out-of-court statement was one of identification of a person made after perceiving that person. D. ADMISSIONS BY PARTY OPPONENT 1. PARTY’S OWN STATEMENTS Under FRE 801(d)(2)(A), Statements made by a party or persons affiliated with a party are exempt so long as they are offered by Party 1 against the opposing party that made the admission. 2. ADOPTIVE ADMISSIONS Under FRE 801(d)(2)(B), Party can adopt a statement made by another person as her own, either explicitly or tacitly, and that other person’s statement will be treated as an admission of the party. 16 3. VICARIOUS ADMISSIONS BC OF EMPLOYMENT RELATIONSHIP Under FRE 801(d)(2)(D), Statements by non-party may be attributed to and used against a party under certain circumstances because of the special relationship between the party and the declarant. 4. CO-CONSPIRATOR ADMISSIONS Under FRE 801(d)(2)(E), Statement made by a party’s co-conspirator if proponent shows (a) declarant and party were co-conspirators and statement was made (b) during pendancy and (c) in furtherance of conspiracy. V. HEARSAY EXCEPTIONS Basic Rule is that hearsay evidence is inadmissible UNLESS it falls within an exception to the hearsay rule. Premise of these rules is that there is something about these statements from which trustworthiness of the declarant can be inferred. A. AVAILABILITY OF DECLARANT IMMATERIAL Declarant must have personal knowledge. 1. SPONTANEOUS STATEMENTS a. Excited Utterances Under FRE 803(2), statements (a) made while the declarant was under stress of excitement caused by a startling event or condition and (b) that relate to the event or condition. (1) Rationale Stress ensures spontaneity and precludes possibility of fabrication. (2) No time requirement but usually made soon after startling event. b. Present Sense Impression Under FRE 803(1), Statements that (a) describe or explain an event or condition (b) made while declarant was perceiving the event or condition or immediately thereafter. (1) Rationale Spontaneity ensures declarant will not have had time to think about what to say. (2) Statement must be made while the event or condition was being perceived or immediately thereafter. 2. STATE OF MIND: MENTAL OR PHYSICAL CONDITION Statements by declarant relating to her then existing mental, emotional, or physical condition. Related exception covers statements made for the purpose of obtaining medical diagnosis or treatment. a. Present State of Mind Under FRE 803(3), Statements of belief, intent, attitude, mental feeling, pain and bodily health. (1) Rationale No problems of memory or perception. 17 (2) Used when a person’s intent, knowledge, belief, attitude, or physical condition is itself a relevant issue. (3) Statement of existing intent to do something in the future admissible to prove declarant carried through with plans. b. Statement made for the Purpose of Obtaining Medical Diagnosis or Treatment Under FRE 803(4), Statements of past or present symptoms, pain, sensations, or physical condition admissible if for the purpose of obtaining medical diagnosis or treatment. 3. BUSINESS RECORDS Under FRE 803(6) & 803(7), a written record qualifies for business record exception if it was (a) the regular practice of the business to keep such records; and the records were made (b) in the regular course of the business, (c) at or near the time of the event or condition recorded, and (d) by an employee with personal knowledge of the event or upon information provided by someone with a business duty to report the information. But court should exclude the record if the source of the information or the method or circumstances of its preparation indicate a lack of trustworthiness. Rationale is that they are Reliable. No memory or sincerity danger since proximity in time to event or condition. 4. PUBLIC RECORDS AND REPORTS FRE 803(8) admits records and reports of a government agency setting forth information falling within 4 categories. a. Activities of the Agency Records setting forth the agency’s own activities. b. Matters the Agency is Required to Observe and Report Records setting forth matters that the agency is required by law to observe and report. Involves recording or public official’s firsthand observations. (1) Excludes in criminal cases, matters observed by police officers and other law enforcement personnel. c. Factual Findings Reports setting forth factual findings that result from authorized governmental investigation admissible (a) in civil cases and (b) against the government in criminal cases. d. Vital Statistics Covers public records of births, deaths, and marriages. 5. LEARNED TREATISES FRE 803(18) states that learned treatises are (a) Admissible only to the extent called to attention of expert on C-X or relied upon by expert in direct exam. (b) Work must be established as reliable authority (c) By the witness 18 (d) Another expert (e) Or judicial notice (f) Statements may be read into evidence but not introduced as exhibits 6. PAST RECOLLECTIONS RECORDED FRE 803(5) allows statements previously recorded by witness to be used at trial when witness cannot remember what happened a. Elements of PRR Six requirements: Declarant (a) testifies at trial (b) once had personal knowledge about the matter (c) insufficient recollection to testify fully and accurately (d) made or adopted the statement (e) while event fresh in memory and (f) accurately reflected his knowledge. b. Rationale Reliability and necessity. c. May only be Read into Evidence PRR is only a substitute for the witness’s testimony; proponent may only have PRR read to the jury. Opposing party is entitled to examine the memo and introduce it. d. Availability of Declarant Required PRR requires that declarant be a witness. 7. CATCH-ALL EXCEPTION: EQUIVALENT TRUSTWORTHINESS Under FRE 803(24) and FRE 807, even if hearsay statement does not fall within specific hearsay exception, admissible if it possesses “equivalent circumstantial guarantees of trustworthiness.” There are in total 5 requirements, including the guarantee of trustworthiness: a. Must be Material Offered as evidence of a material fact b. Must be Necessary Statement must be more probative on point for which offered than any other evidence which proponent can reasonably expect to come up with. c. Must serve Justice Admission must serve interests of justice. d. Evidence has a guarantee of trustworthiness as the other exceptions in FRE 803 and 804. e. Notice Requirement Proponent must give adverse party notice of (a) intent to use this exception and (b) particulars of the statement. 19 B. UNAVAILABILITY OF DECLARANT REQUIRED FRE 804 is conditioned upon the declarant’s unavailability. 1. UNAVAILABILITY DEFINED Declarant is unavailable if (a) too ill to testify or dead, (b) validly asserts privilege, (c) refuses to testify despite court order, (d) lacks memory, or (e) is absent and proponent cannot produce her attendance or testimony. 2. DYING DECLARATIONS Statements made by a person who believes death is imminent. Said to be reliable bc person would not want to go to his maker with a lie on his lips. a. Declarant made statement while believing death was imminent b. Statement concerns the causes of circumstances of impending death c. Declarant is unavailable d. Statement is offered in a civil case or any homicide prosecution 3. DECLARATIONS AGAINST INTEREST Rationale: people don’t say things adverse to their own financial interest unless true a. Declarant must be Unavailable b. Must have been against declarant’s interest at time statement was made c. Person acknowledges facts that might adversely affect financial well-being or limit property rights d. Includes statements that would tend to subject declarant to civil or criminal liability. 4. FORMER TESTIMONY a. Out of court statements now being offered was itself made as testimony. b. Given under oath at earlier trial, depo, or some other proceeding c. Declarant must be unavailable d. Admissible only if party against whom it is now being offered had (a) opportunity and (b) similar motive to develop the testimony in the former hearing. 5. STATEMENTS OF PERSONAL OR FAMILY HISTORY Includes statements concerning (a) birth (b) adoption 20 (c) (d) (e) (f) marriage divorce legitimacy ancestry VI. CONFRONTATION CLAUSE 6th Amendment guarantees a criminal  the “right to be confronted with the witnesses against him.” Extent to which it limits the prosecution’s ability to introduce hearsay against the accused is far from certain. A. PURPOSES OF THE CONFRONTATION CLAUSE 1. enduring statements are made under oath 2. forcing the witness to submit to cross 3. permitting the jury to observe the witness’ demeanor B. NO CONFRONTATION CLAUSE PROBLEM IF HEARSAY DECLARANT TESTIFIES If declarant testifies at trial and can be C-X about hearsay, no confrontation clause problem. See California v. Green. C. IF DECLARANT DOES NOT TESTIFY, THE EARLY TWO PART TEST IS UTILIZED. In Ohio v. Roberts, the USSC stated that the Confrontation Clause demanded first, that if the prosecution did not produce the declarant at trial, it must demonstrate that (1) the declarant is unavailable and (2) the hearsay is reliable. D. CONFRONTATION CLAUSE AND EXCEPTIONS Confrontation Clause of the 6th Amendment DOES NOT require that, before a trial court admits testimony under the “spontaneous declaration” and “medical examination” exceptions to the hearsay rule, the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable. White v. Illinois E. OPPORTUNITY FOR EFFECTIVE CROSS EXAMINATION IS NOT DENIED WHEN A WITNESS TESTIFIES AS TO HIS CURRENT BELIEF BUT IS UNABLE TO RECOLLECT THE REASON FOR THAT BELIEF. See Delaware v. Fensterer. F. FIRMLY ROOTED HEARSAY EXCEPTION AND TRUSTWORTHINESS USSC had indicated that hearsay may be admitted (other than that offered as former testimony) even if the prosecution does not produce the  and he is available to testify if the hearsay exception 1) falls within a firmly rooted hearsay exception (and thus is reliable) or 2) if the prosecution can show that the statement possesses particularized guarantees of trustworthiness. 21 VII. WITNESSES & IMPEACHMENT A. COMPETENCY OF WITNESSES FRE 601 drops all restrictions on witness competency. Every person is competent to be a witness, except for judges and jurors. If a party believes that a witness is incapable of understanding the duty of the witness or of processing the claim, for mental or physical reasons, then a party can test that person & their abilities if the judge grants this discretionary decision. B. IMPEACHMENT IN GENERAL An attack on a witness’s credibility, i.e., an attempt to show that the witness is lying, mistaken, or both. 1. IMPEACHING ONE’S OWN WITNESS FRE 607 Voucher Rule allows any party to impeach any witness. 2. TECHNIQUES OF IMPEACHMENT a. Showing Defects in Witness’s Capacity to see, hear, or recall facts under FRE 401-403 (1) Physical or Mental Disabilities in use at time of event (2) Test Memory by questions concerning the details of the event (3) No Foundation Requirement (4) Extrinsic Evidence Allowed to prove lack of capacity b. Showing witness has Bias under FRE 401-403 (1) Ability to show bias important (2) Foundation Requirement in non-FRE jurisdictions is that witness must be asked about bias before extrinsic evidence may be introduced. (3) Extrinsic Evidence admissible to show bias c. Prior Inconsistent Statements (1) Theory is that they are not hearsay when offered to show witness is not credible. Not asking the jury to believe the witness’s previous statement was true but to show that witness is not credible. (2) Limiting Instruction When a party impeaches a witness with his prior inconsistent statement, its opponent is entitled to a limiting instruction (3) Some prior inconsistent statements are better than others 22 FRE 801(d)(1)(A) declares that a prior inconsistent statement made under oath when the witness was subject to penalty or perjury at an earlier trial or depo or hearing is not hearsay. Thus, it can be used for its truth as well as to impeach. Prior Consistent Statements offered to rebut an express or implied charge of recent fabrication or improper influence are admissible for their truth pursuant to FRE 801(d)(1)(B) as long as such statements were made before the motive to fabricate. Tome. (4) Extrinsic evidence of prior inconsistent statement Admissible if (a) witness is given an opportunity to explain or deny the statement and (b) opposing counsel is given a chance to question the witness about the prior inconsistent statement. FRE 613. d. Character for Truthfulness Evidence of a witness’s poor character for truthfulness offered for inference that witness acted in conformity with that character trait, i.e., is testifying untruthfully. (1) Three Ways to Prove Untruthfulness May be established through (a) opinion or reputation testimony, (b) specific acts not resulting in conviction, and (c) convictions FRE 608(a)(1) (2) Opinion or Reputation Witness 2 may not cite specific instances of dishonest conduct. Witness 1 can bring reputation or opinion witnesses as evidence of his good character only after his character has been attacked. FRE 608(a)(2). (3) Specific Acts Not Resulting in Conviction Witness 1 may be asked on C-X about specific things he has done to bear on his truthful disposition. The cited conduct must be probative of untrustworthy character. No extrinsic evidence to prove witness actually engaged in the conduct. FRE 608(b) (4) Convictions (a) Crimes involving dishonesty or false statements Witness may be impeached by showing he has been convicted of a crime involving dishonesty or a false statement, regardless of punishment. FRE 609(a)(2). Court may NOT balance the probative value of the conviction against the danger of unfair prejudice. (b) Felonies not involving dishonesty or false statements Witness may be impeached with a felony that did not involve dishonest or a false statement. But the court must balance the probative value of the conviction against the danger of unfair prejudice. One balancing test for criminal ’s and another one for witnesses. FRE 609(a)(1)(a) & (b) If criminal : If witness: inadmissible unless the probative value outweighs the prejudicial value. admissible unless the probative value is substantially outweighed by the prejudicial value. (5) Warning: Under FRE 608(a)(2), these Rules Only Apply After Attacks on the Witness’s Character for Truthfulness e. Contradiction Issue is “when will impeaching party be allowed to offer extrinsic evidence to contradicting some aspect of the witness’s testimony?” Court will exclude extrinsic evidence if it has little probative value to impeach the witness (is not relevant to any issue in the case and thus is collateral) 23 VIII. OPINIONS AND EXPERT TESTIMONY A. LAY WITNESSES 1. OBJECTIVE To provide the trier of fact with an accurate reproduction of the event. 2. REQUIREMENTS Under FRE 701, Lay Witnesses may testify in the form of opinion or inference if a. Opinion is rationally based on witness’s perception b. Witness has firsthand knowledge or observation c. Witness’s testimony is helpful in resolving the issues B. EXPERT WITNESSES 1. SUBJECT MATTER Under FRE 702(a)(1) & (2), expert testimony regarding scientific, technical, or other specialized knowledge is admissible if it will assist the factfinder to understand the evidence or determine a fact in issue. 2. QUALIFICATIONS Under FRE 702(b), an expert is someone who is qualified by knowledge, skill, experience, education, or training. 3. BASIS OF EXPERT OPINION Whether a situation calls for the use of an expert depends on whether a lay person can determine the particular issue at hand without the use of an expert. Experts need not based their opinions on personal knowledge. Under FRE 703, experts can base their opinion on facts and data that the expert perceives or is presented with at trial. 4. EXAMINATION OF EXPERT WITNESSES Experts may be asked as to (a) qualifications, (b) bases of opinions (c) compensation and (d) discrepancies between opinions expressed by the expert and statements contained in treatises and articles. 24 IX. AUTHENTICATION OF EVIDENCE A. AUTHENTICATION Proponent must establish that an item is what it purports to be. 1. CONDITIONAL RELEVANCE STANDARD Proponent need only introduce enough evidence for a reasonable juror to find that the item is what it purports to be. 2. REAL AND DEMONSTRATIVE EVIDENCE Real evidence refers to tangible items that actually played a role in the matter in dispute. Demonstrative evidence refers to tangible items that did not actually play a role in the dispute. Proponent of demonstrative evidence must establish that it is a fair and accurate representation of what it purports to depict. B. AUTHENTICATION OF WRITINGS Several ways to authenticate a writing: 1. PERSONAL KNOWLEDGE By a person who has personal knowledge that the writing is what it is claimed to be. 2. AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE, such as a. Handwriting (1) Lay Witness Under FRE, lay witness’s familiarity with handwriting must have been acquired for purposes of litigation. (2) Expert Witness Expert may compare genuine sample of the purported author’s handwriting with the writing in question. (3) Comparison for Trier of Fact Exemplar and contested writing may be submitted directly to the factfinder for comparison. b. Reply Message Doctrine If contents of writing indicate it is in reply to a previous communication addressed to the purported author and it is unlikely that anyone other than the purported author would have sent the response, writing will be authenticated. c. Ancient Documents Writing authenticated if (a) condition created no suspicion as to authenticity (b) found where likely to have been kept (c) at least 20 years old. d. Recorded or filed in Public Records Office or Public Reports e. Content Authentication if contents include information known only to purported author. 25 C. AUTHENTICATION OF OBJECTS Authentication by showing item is what it purports to be. 1. PERSONAL KNOWLEDGE Witness recognizes the object based on unique markings, properly affixed labels, etc. 2. AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE, such as a. Distinctive Characteristics Appearance, contents, or internal patterns may be used. b. Chain of Custody Authentication by proving an unbroken chain of custody from the time item came into proponent’s possession until its submission into evidence. 3. PHOTOS, MAPS, OR MODELS May be used to illustrate testimony so long as witness testifies that exhibit is fair representation of what it purports to be. D. AUTHENTICATION OF VOICES Ways of establishing that a voice heard belonged to a particular person. 1. PERSONAL KNOWLEDGE 2. AUTHENTICATION BY CIRCUMSTANTIAL EVIDENCE a. Contents Contents of statement include information known only by purported speaker b. Distinctive Characteristics of Speaker c. Voice Prints d. Special Rules for Telephone Delivery (1) Personal identity Witness testifies that she dialed listed number and circumstances show person answering to be one listed and called (2) Business Witness testified that she dialed the listed number and conversation related to type of business commonly transacted over the phone. E. SELF-AUTHENTICATION Likelihood of forgery or tampering so small that proponent is not required to present any evidence to establish that the item is what it purports to be. 26 1. 2. 3. 4. 5. 6. COMMERCIAL PAPER OFFICIAL PUBLICATION NEWSPAPERS AND PERIODICALS TRADE INSCRIPTIONS AND THE LIKE ACKNOWLEDGED DOCUMENTS CERTAIN PUBLIC RECORDS X. BEST EVIDENCE RULE A. BEST EVIDENCE RULE FRE 1002 requires only that when a party seeks to prove the contents of a writing, recording, or photo, the party must use the original. This rule does not extend beyond writings, recordings, or photos. 1. RATIONALE Original is more trustworthy than a copy. B. ANALYSIS OF A BER PROBLEM 1. PROVING THE CONTENTS OF A WRITING Three situations where party seeks to prove the contents of a writing, recording, or photograph: a. Writings with Independent Legal Significance Where rights or obligations arise directly from a writing, the precise words of the writing possess independent legal significance. E.g., contracts, lease, will, written libel, book. b. Writings offered in Evidence If a party physically offers a writing into evidence, she thereby puts the terms of the writing in issue by asking the trier of fact to rely on it. c. Testimony Relying Upon a Writing Testimony where the witness relies totally upon a writing. 2. WRITING, RECORDING, PHOTO DEFINED FRE 1001(1) and (2) define these broadly. 3. ORIGINAL DEFINED FRE 1001(3) defines originals as the writing or recording itself. But other things count as originals. a. Counterparts Under FRE 1001(3), if a person executing a writing intends to have a counterpart to have the same effect, it will be considered an original. b. Photographs Includes the negatives or any print made from the negative. c. Computer Printouts Any printout shown to reflect the data accurately. 27 4. EXCEPTIONS a. Duplicate FRE 1003 states that a duplicate may be used in lieu of the original unless a genuine questions is raised about the authenticity of the original. b. Public Records Under FRE 1005, certified copy of a public record or a copy that is testified to be correct may be used in lieu of the original. c. Summaries Under FRE 1006, if original is voluminous, its contents may be presented in a form of a chart, summary, or calculation. Opponent must be given reasonable opportunity to inspect and copy original. d. Unavailability of the Original A duplicate may not be used if, under the terms of the FRE 1003, the opponent presents evidence to dispute the authenticity of the original or if other aspects of the original or duplicate make it unfair for the proponent to use the duplicate. Under FRE 1004, if the original is unavailable through no fault of proponent, any evidence may be used. E.g., lost, destroyed, not obtainable, in possession of opponent. XI. PRIVILEGES A. PRIVILEGES IN GENERAL 1. RATIONALE Cost incurred by the loss of reliable evidence is outweighed by social benefits that accrue from having privileges. Privileges are protected to guarantee the confidentiality of special and important relationships. 2. SCOPE OF PRIVILEGE Allows holder to (a) refuse to disclose and (b) to prevent others from disclosing the protected communication. 3. COMMUNICATIONS ARE PRIVILEGED, INFORMATION IS NOT 4. ATTACK PLAN 1. Relationship : Is there a privileged relationship? 2. Communication: Was there a germane communication? 3. Confidentiality: Was the communication confidential and intended to be confidential? 4. Holder: Is the holder asserting the privilege? 5. Waiver: Did the holder waive the privilege? 6. Exception: Is there an exception to the privilege? 28 B. ATTORNEY-CLIENT PRIVILEGE FRE 503 allows (a) a client (b) to refuse to disclose and to prevent others from disclosing (c) confidential (d) communications (e) made between the attorney and the client or their representatives (f) for the purpose of facilitating the rendition of legal services. 1. ATTORNEY CLIENT RELATIONSHIP a. Lawyer Someone who is licensed to practice law. Reasonable mistake that person is licensed does not destroy relationship. b. Client An individual or entity such as a corporation who consults a lawyer with the idea of obtaining legal services. c. Representatives of Lawyers and Clients Confidential communications may pass through representatives of lawyers and clients. (1) Representative of Lawyer Someone employed by the lawyer to assist in the rendition of legal services. (2) Representative of Client When a client is a corporations, several tests advanced for determining who is representative of the corporation. (a) Control Group Test Only members of a control group of a corporation (officers and directors) (b) Diversified Industries Test Protects communications made by an employee outside control group if (a) communications made at the behest of the superior (b) superior made request so corporation could secure legal advice, and (c) communication made for the purpose of securing legal advice (d) concerned a matter within the scope of employee’s duties and (e) was not disseminated beyond the persons who needed to know its contents. (c) Upjohn Test Under Upjohn, communications between lower level employees of the client and the attorney are covered by the AC privilege. 2. COMMUNICATION a. Must be germane A communication is privileged only if made for the purposes of facilitating the rendition of legal services. It is not privileged when made to a lawyer acting in a non-legal capacity. b. Communication Generally are verbal, either oral or written. Non-verbal statements intended to communicate information also qualify. 3. CONFIDENTIALITY a. Presence of Third Persons Presence of 3rd persons that are not reasonably necessary for the transmission of information destroys confidentiality. 29 b. Intent to Maintain Confidentiality Communication is confidential if client intended that it would be disclosed only to (a) lawyer and (b) anyone else to whom disclosure was necessary to help provide legal advice. c. Eavesdroppers Most jurisdictions hold that overheard communications retain confidentiality so long as the client intended that it remain confidential. 4. CLIENT IS HOLDER Client is holder of privilege. She is entitled to assert it or waive it. It survives client’s death. 5. PRIVILEGE MAY BE WAIVED If client (a) fails to timely assert it or (b) voluntarily reveals a significant part, it is waived. 6. EXCEPTIONS Under FRE 503(d): a. Crime of Fraud b. Breach of Duty c. Join Clients d. Documents Attested by Lawyer e. Claimants through Deceased Client C. PHYSICIAN-PATIENT PRIVILEGE Differs upon state statutes. 1. PHYSICIAN PATIENT RELATIONSHIP Patient must consult doctor for purposes of diagnosis or treatment. The physician must be licensed to practice medicine. 2. COMMUNICATIONS Protected communications include medical and hospital records, direct communication between doctor and patient, and information observed by doctor through physical examinations and tests. 3. CONFIDENTIALITY Presence of necessary third parties does not destroy confidentiality. 4. PATIENT IS HOLDER Patient is holder and physician may assert it on patient’s behalf. Privilege survives patient’s death. 5. WAIVER If patient (a) fails to timely assert it or (b) voluntarily reveals a significant part, it is waived. 30 6. MOST COMMON EXCEPTIONS a. Criminal Proceedings b. Patient Litigant c. Breach of Duty d. Court Appointed Physician D. PSYCHOTHERAPIST-PATIENT PRIVILEGE Recognized by every state and court. 1. PSYCHOTHERAPIST-PATIENT RELATIONSHIP Definition of Psychotherapist differs from state to state. Some include social workers. 2. EXCEPTIONS USSC has not articulated what exceptions will apply in federal court. See Jaffee. Usually the same exceptions that apply to Physician-Patient apply here as well. E. ACCOUNTANT CLIENT-PRIVILEGE Most states do not recognize. F. MARITAL PRIVILEGES 1. MARITAL COMMUNICATIONS PRIVILEGE a. Marital Relationship Must be legally married at time communication is made. Privilege survives divorce. b. Communication Courts are split on what constitutes a communication. Some say only verbal and nonverbal acts intended to be communicative are protected. Others protect the private observations made during marriage if the spouse allowed the other spouse to observe. c. Confidentiality Must be made privately. No 3 rd parties allowed. d. Both Spouses are Holders of the Privilege e. Wavier If spouse (a) fails to timely assert it or (b) voluntarily reveals a significant part, it is waived. f. Exceptions (1) Actions Between Spouses (2) Crime or Fraud 31 (3) Crime Against Family Member 2. MARITAL TESTIMONIAL PRIVILEGE a. Only applies in criminal proceedings b. Rationale Forcing spouse to give testimony that could result in spouse’s conviction is too destructive of the marital relationship c. End of Marriage, End of Privilege d. Exceptions (1) Crime against Family Member (2) Marrying the Eyewitness G. PRIEST PENITENT PRIVILEGE Proposed FRE 506 recognizes a privilege for communications made to a member of the clergy. Some apply only to confessions made to a priest. Others are much broader and apply to confidential communications made to a clergyman in his or her capacity as a spiritual adviser. H. PARENT CHILD PRIVILEGE Most courts refuse to recognize. I. GOVERNMENT INFORMANT PRIVILEGE Government may refuse to disclose the identity to the informant who has furnished information to law enforcement officials regarding illegal conduct. J. JOURNALIST PRIVILEGE 1st Amendment does not create a privilege that allows journalists to refuse to divulge information about the sources of their stories but many states have enacted statutory privileges with varying coverage and exceptions. K. SCHOLAR’S PRIVILEGE Privilege is to protect the confidentiality of their research and the identity of their research subjects. L. PEER REVIEW PRIVILEGE Privilege is claimed by academic institutions and hospitals to protect the confidentiality of the peer review process. USSC has refused to recognize a peer review privilege. Exception: Discrimination Suits. 32 M. SELF-EVALUATIVE PRIVILEGE Asserted in the corporate context in connection with Aff. Ax policies to protect against the disclosure of intracorporate communications made during the employee review process and against disclosure of compliance investigations done by the corporation. Some courts have refused to recognize this privilege in Title VII cases. Other lower federal courts have. N. GOVERNMENT/EXECUTIVE PRIVILEGE 1. STATE SECRETS PRIVILEGE Privilege for matters such as military secrets and other classified information. 2. PRESIDENTIAL COMMUNICATIONS PRIVILEGE Privilege for information communicated between president and his immediate advisors. 3. OFFICIAL INFORMATION PRIVILEGE Protects official information, such as law enforcement files and government agency deliberations. Often arises in alleged violations of civil rights by police officers under § 1983. XII. JUDICIAL NOTICE A. JUDICIAL NOTICE An evidentiary shortcut. FRE 201 allows courts to accept certain facts or propositions of law as true without requiring formal proof. 1. RATIONALE (a) save time and expense in proving facts not subject to reasonable dispute (b) avoid disrespect for court system that would result if trials resulted in obviously erroneous factual findings B. THREE TYPES OF JUDICIAL NOTICE 1. ADJUDICATIVE FACTS Facts that relate to the immediate parties or event. Under FRE 201(b), judicial notice may be taken of indisputable adjudicative facts. a. Facts in Common Knowledge Facts that well-informed persons in the community generally know and accept. b. Readily Verifiable Facts Facts not generally known, but which can easily be verified by resort to sources whose accuracy cannot be questioned. c. Effect of Judicial Notice (1) If Civil Case Court instructs the jury to accept the truth of that fact. FRE 201(g)(1) (2) If Criminal Case 33 Court instructs the jury that it may, but is not required to, accept the truth of judicially noticed fact. FRE 201(g)(2) 2. PROCEDURES Court may take judicial notice of adjudicative fact on its own motion. Upon request from a party, court must take judicial notice it supplied with necessary information by the party. FRE 201(d) If the requirements of FRE 201 have been fulfilled, the judge will instruct the jury that it must take certain matters as true bc they have been “judicially noticed” by the judge. Usually, when this occurs, the parties need produce no evidence on the issue that is “not subject to reaosnable dispute”. FRE 201(g)(1) or (2). XIII. BURDENS OF PROOF AND PRESUMPTIONS Burden of Persuasion is evaluated by the jury. Burden of Production is applied by the judge to determine if the party has produced enough evidence to avoid a directed verdict. A. BURDEN OF PRODUCTION 1. RATIONALE a. Every factual element of claim or defense has a burden of production associated with it 2. ROLE OF BURDEN OF PRODUCTION a. Role is to require the party who has it to present enough evidence to create a jury question 3. RELATIONSHIP BETWEEN IT AND PERSUASION BURDEN a. Burden of Production is a function of the burden of persuasion. b. To test if a burden of production has been met is whether in light of the evidence, there could be reasonable disagreement which party should win. If there could be reasonable disagreement, a jury question has been generated. If not, the judge may as well dispose of the case as expeditiously as possible. B. BURDEN OF PERSUASION Normal burden of persuasion in Civil cases is a “Preponderance of the Evidence” burden, which is generally understood as meaning greater than 50%. In civil cases in which a claim is based on activity proscribed by criminal statutes, the burden of persuasion may be CCE. 34 1. ROLE OF THE BURDEN OF PERSUASION a. The burden of persuasion is a rule of decision that requires a party to persuade the fact-finder of a proposition to a specified degree of certainty. b. Does not get shifted around during a trial. Whoever holds the burden of persuasion is generally where it remains from beginning till end of litigation. 2. THE RELATIVE NATURE OF THE BURDEN OF PERSUASION From the perspective of the parties to a litigation, the burden of persuasion is relative. To say that the  must prove some proposition to be true by greater than 50% in order to win is to say that the  must prove that the proposition is false by 50%. 3. THE ALLOCATION OF THE BURDEN OF PERSUASION a. NORMAL RULE (1) Normal rule is that the ’s and moving parties bear the burden to prove by a preponderance of the evidence all the facts necessary to justify a verdict or judgment on their behalf. b. EXCEPTIONS TO THE RULE (1) States are free to allocate burdens of proof in civil cases virtually any way they like. For example, Shechter appears to be an exception to this general rule – if it is preponderance of the evidence. If she presents a PFC of negligence, a  can get a reduced burden of persuasion. Then, the burden of persuasion rule inevitably shifts to the  on proof of ingenuine amnesia. Shechter. Schechter v. Klanfer  Case in which  suffered from amnesia due to a motorboat collision. NY had a rule that stated that in a death cases a  is not held to as high a degree of proof of the cause of action as where an injured  can himself describe the occurrence. Trial court found the  to hold a lesser degree of proof if the jury found his amnesia to be genuine. Upon ’s objection, however, the charge was withdrawn. Held that, if she presents a PFC of negligence, a  can get a reduced burden of persuasion. Then, the burden of persuasion rule inevitably shifts to the  on proof of ingenuine amnesia. An amnesiac plaintiff can not more describe the event that produced his injury than can a toddler Danger of feigning amnesia is ameliorated by requiring the jury to be satisfied that the evidence of amnesia is clear and convincing.    35