Evidence I. EVIDENCE LAW: WHY WE HAVE RULES OF EVIDENCE A. INTRODUCTION 1. Three words to remember a. RELEVANT b. RELIABLE c. SOCIAL POLICY (privilege) 2. Three ways to get facts into evidence a. Stipulation b. Judicial Notice c. Rules of Evidence 3. Why Evidence Law a. Mistrust of juries b. Serve substantive policies relating to the matter being litigated (1) burden of proof and persuasion c. further substantive policies unrelated to the latter in litigation (1) attorney client privilege d. ensure accurate fact-finding e. to control the scope and duration of trials 4. Sources of Evidence Law a. Common law b. Wigmore Code of Evidence c. Morgan Model Code of Evidence d. Uniform Rules of Evidence (1) 1953 National Conference of Commissioners on Uniform State Laws (2) 1974 Adopted Rules largely tracking the Federal Rules e. Evidence Codes f. Federal Rules of Evidence – 1975 (1) Advisory Committee to Supreme Court to Congress (2) Votes on by Congress (i) Deleted the privilege section, leaving that area to common law development HOW EVIDENCE IS ADMITTED OR EXCLUDED 1. Types of Evidence a. Testimonial b. Real Evidence: (1) Tangible things involved in the events in litigation c. Demonstrative Evidence (1) Diagrams (2) Photographs (3) Maps (4) Models d. Writings 2. Getting Evidence In a. Foundation b. Offer 3. Keeping Evidence Out B. a. Objection or Motion to Strike Purpose (i) Offering party an opportunity to cure (ii) Rephrasing (iii) Laying a further foundation (iv) Ask the question of another witness (2) Timely (3) Include grounds (i) Irrelevant (ii) Immaterial (iii) Prejudicial b. Motion in Limine 4. The Offer of Proof FRE 103 - WAIVER 1. If you don’t object in a timely manner, you waive 2. Error plus prejudice = reversal FRE 104(A) - BASIC PROCEDURAL ISSUES 1. Should the jury observe the proceedings 2. What party bears the burden of proof 3. What standard of proof applies 4. Do the Rules apply on these preliminary questions a. Judges have discretion on all matters except privilege b. On appeal (1) Was the rule violated (2) If so, was the decision of the judge abuse of discretion (3) If so, was it prejudicial WORKING A PROBLEM 1. Analysis a. What is the legal context? b. What is the issue? c. What is the Evidence Rule? 2. Scope of Direct Examination - Problem 1-A: ―Barton v. Felsen‖ a. Facts: The case is a car accident and excerpt is cross examination. D objects based on ―beyond the scope of direct examination.‖ On which of the following questions will the objection be sustained? b. What is the issue here? (1) Was there negligence? (i) P is trying to prove the elements are present while D is trying to prove there was contributory negligence c. How do you decide which rule of evidence to use? (1) Look to the wording of the objection (2) FRE 611(b) establishes the scope of cross examination (i) Subject matter of direct examination (this is very arguable!!) 1. Point raised 2. Transaction described 3. Issue affected (ii) Matters affecting the credibility of the witness (credibility is ―always an issue‖ (arguably)) (iii) May permit inquiry into additional matters as if on direct examination d. Can D ask if the passenger in P’s car if he is dating P? (1) C. D. E. (1) Yes – goes to credibility of witness e. Can D ask the passenger if the driver was turned around looking out the back window at the time the accident occurred? (1) Not related to whether or not passenger could see the light f. Can D ask the passenger if the driver had been drinking? (1) Should not be discussing contributory negligence factors during P’s case in chief Process for Analyzing Evidence Problems 1. Relevance a. Goal of the Evidence b. Inference c. Statement/Evidence d. FRE 404 Relevancy (1) Rule: ―(a) Character evidence generally. – Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, (2) Exceptions (i) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; (ii) Character of victim. Evidence of a pertinent trait of character of the 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 victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (iii) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. 2. Application of an Evidentiary Rule a. Issue Identification b. Identify the applicable rule c. Read the WHOLE rule d. Does the rule apply? e. Are there any exceptions that apply? (1) This is where the keys are (2) Make sure your conclusion is technically correct 3. Discretion – FRE 403 balancing a. this is the part that’s different from statutory interpretation b. Ultimate goal is that justice be done. Discretion may even overcome the technically correct reading of the rule. 4. Constitutionally prohibited 5. Questions to ask a. Is it relevant? b. It is reliable? F. I. Frequently Encountered Substantive Objections – (from the book) a. Asked and answered – forces questioner to move on b. Assumes facts not in evidence – questioner imparts important information in query that is not already admitted c. Argumentative – contradict or confront witness with disbelief II. d. Compound – answer to the question may be obscure because the question is ambiguous, this makes the questioner rephrase e. Leading the witness – when you feel like the lawyer is doing the testifying f. Misleading – a question that misquotes testimony or misstates the evidence g. Speculation or conjecture – raises the point that witnesses are expected to say what they know, not what they guess/suppose/expect h. Ambiguous, uncertain, and unintelligible – question cannot be understood or whose meaning depends on inflection that cannot be captured by the record i. Nonresponsive to the question – entitled to a proper answer on a specific point Judicial Notice – substitutes for evidence, so not subject to rules of evidence. a. adjudicative facts – only area gov’d by FRE201 - established without formal evidentiary proof. If something is not an adjudicative fact, you cannot take judicial notice of it. i. facts developed in a particular case, normally go to jury ii. not subject to reasonable dispute because 1. generally known, OR 2. verifiable by unimpeachable sources iii. binding in civil cases (nonbinding in criminal, serves as permissible inference) 1. Procedural issues – court can take judicial notice whether requested or not 2. FRE201 requires judicial notice when a party requests it and supplies the court with necessary information 3. Can be made at any stage of the proceeding as long as the adverse party has an opportunity to be heard in opposition b. legislative facts – what courts consider in construing and applying laws and deciding whether laws are reasonable/rational. Unregulated and need not be indisputable c. evaluative facts – unregulated – common knowledge, no evidence needed, can argue for this fact d. judicial notice of law e. Cases: i. Gereau – D was convicted when matron told one juror she wished they would hurry up so she could go home. Trial judge took judicial notice that matron liked her job and denied motion for new trial. 1. personal knowledge does not qualify for judicial notice ii. Jones – D was acquitted of intercepting phone calls illegally bc govt failed to allege the maker of phone was a common carrier providing facilities for interstate communication 1. failure to plead a fact in a crim proceeding may not be cured by judicial notice at the appellate level 2. a criminal case jury can pass on facts that are judicially noticed, not required to accept the fact iii. Muller – statutory limits on number of hours women can work. 1. when a fact is debated and debatable, widespread & long continued belief concerning it is worthy of consideration, ct takes judicial notice of all matter of general knowledge iv. Houser – legal drinking age of 21 challenged. Court takes judicial notice of studies about effects of alcohol on 18 to 20 year olds. 1. where the facts asserted are not relevant to the specific case, but are rather being asserted to support a legal reasoning, it need not be classified as an adjudicative fact and will not be gov’d by the judicial notice rules III. Burdens of Proof and Presumptions a. Burdens of proof i. Pleadings 1. paint a sensible picture 2. e.g. – K suit. P must prove agreement, consideration, performance by P, breach by D, and damages 3. weight req’d – necessary allegation ii. Different types of burdens 1. Burden of production a. allocation: who bears the burden? b. Usually is the party who bears the burden of persuasion c. Satisfying the burden of production does not ordinarily shift the burden to the other side d. Weight req’d – sufficient evid to permit a reas juror to find the point with the requisite measure of certainty 2. Burden of persuasion a. A party can win only if the evid persuades the trier of fact of the existence of necessary facts i. Weight: how much in order to carry it? 1. civil – preponderance, more likely than not b. never shifts in the federal system b. Inference – not a presumption but may be deduced from a basic fact by the ordinary rules of reasoning/logic c. Presumption i. Requires the trier of fact to draw a particular conclusion when basic facts are established (absent counterproof) ii. Presumption unmet (unopposed) – controls the decision iii. Shifts the burden of proof – whether it shifts one or both divides theorists into two camps (for this class, never shifts burden of persuasion) 1. Thayer Theory—―Bursting Bubbles‖ (view of FRE301) a. If opposing party produces sufficient evidence to challenge basic fact jury must decide if basic fact has been established before applying presumption b. Proof of the basic fact (e.g., letter was mailed) automatically established the presumed fact (letter received) and shifts burden of rebuttal to the other party if no rebuttal evidence then jury instruction is that they must find the presumed fact if rebuttal evidence then presumption bursts and burden of persuasion remains with original party c. Competing Presumptions—if two presumptions conflict, some cts will weigh the policies behind the presumptions, but most courts will ―burst the bubble‖ of both presumptions and permit the jury to weigh the evidence and make a determination (party with original burden of proof still has it) 2. Morgan Theory a. Starts like the Thayer Theory except that a presumption shifts both the burden of persuasion and the burden of production iv. Important civil presumptions 1. Bailed goods d. Zones i. ii. iii. a. Goods delivered to bailee in good condition but damaged when returned --> presumption that bailee was negl 2. Mailed letter a. Letter regularly addressed and mailed --> received by addressee 3. Loaned auto a. Ownership + employer --> owner’s permission acting in scope 4. Death a. Absence for 7 years w/o explanation/communication --> deceased 5. Lost will a. Will can’t be found --> revoked by testator 6. struck vehicle a. vehicle lawfully stopped is struck from rear --> driver of second vehicle negl 7. Accidental death [v. suicide] – walking through the analysis Zone I – judge resolution 1. determining if a sufficient prima facie case exists to go to the jury (can be est. by pleading) a. if no prima facie case – nonsuit Zone II – jury resolution 1. could be counterproof has been presented Zone III – judge resolution 1. directed verdict/JMOL – when jury could not reasonably find otherwise 2. could be no counterproof e. Cases i. Burdine – female alleged gender discrim under Title VII. Held that the ultimate burden of persuasion remains at all times with the plaintiff. 1. P had BoP (preponderance) to show prima facie discrim a. Qualified, in a protected class, etc. (basic fact) 2. If P proves prima facie discrim, BoP (production) shifts to D to offer valid counter-evid a. D must est. by preponderance that a legitimate reason exists 3. If D carries this BoP, P then must have opportunity to prove by preponderance that Ds legitimate reasons were not its true reasons but a pretext for discrim IV. BEST EVIDENCE DOCTRINE a. FRE 1001—BEST EVIDENCE RULE – When the contents of a writing are being proven, the original writing must be offered or its absence satisfactorily explained. i. Purpose—to avoid the danger of transcription errors in copies or erroneous descriptions from memory where the exact words of the writing are critical to a trier of fact’s decision. ii. Writings 1. BER applies only to the proof of the contents of a writing by means of the writing itself. 2. United States v. Duffy (1972) a. The best evidence rule covers writings only and provides that the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. b. Where the object is both a chattel and a writing, the trial judge has discretion to treat it as either one. c. Therefore, testimony as to inscription on shirt in the absence of the actual shirt does not violate BER because it was simple and there was little danger it could not be accurately remembered. 3. Includes contents of photographs iii. Duplicates—copy produced from the original by a reliable copying process (not hand copying) 1. FRE 1003 – duplicates can be excluded if there is a genuine question of authenticity 2. FRE 1004 – a duplicate is admissible if the original has been lost or destroyed unless in bad faith, no original can be obtained, the contesting party fails to produce it as requested, or the writing is not closely related to a controlling issue 3. FRE 1008 – the jury should decide questions of fact about an admitted piece of evidence in accordance with the provisions of rule 104 a. (under 104(b) is there sufficient evidence to justify a finding of the proposed conclusion) 4. what is an original? A duplicate could be an original, look at the context b. EXCEPTIONS TO BEST EVIDENCE RULE i. If an original writing is unavailable, proponent must introduce evidence that he is not seriously at fault for its disappearance and that a reasonable, diligent search has been made without success before secondary evidence of its contents may be admitted. ii. Meyers v. United States (1948) p.887 – this is before the rules, hence the dissent 1. Facts: Meyers contended that the United States violated the Best Evidence Rule by allowing Rogers’ testimony as to what was stated at a Senate hearing, when the transcript was actually the best evidence of what had been stated. 2. Analysis: a. The best evidence rule is limited to cases where the contents of a writing are to be proved. Here, there was no attempt to prove the contents of a writing, but rather to place into evidence what Rogers remembered hearing Lamarre say at the hearing. b. A transcript is not the only evidence of what was said at trial, and therefore BER does not require transcript where testimony is also available. c. Demonstrates the narrowness of the applicability of BER 3. Dissent: a. Since Rogers did not purport to be absolute and was rather a distillation of his recollection, it was unfair and prejudicial. iii. Sylvania Electric v. Flanagan (1965) p.892 1. Facts: Flanagan was permitted to introduce a summary of certain material records rather then the records themselves, without showing the unavailability thereof. 2. Rule: Where material records are not shown to be unavailable, the records rather than summaries thereof must be introduced. 3. Analysis a. The best evidence that is obtainable in the circumstances of the case must be adduced to prove any disputed fact. The more central the records are to the issue of the case, the more strictly this rule will be enforced. There was no showing of unavailability in this case. b. To get trigger the use FRE1006 summary rule you have to notify that you will be using summary information and show the information necessary to make sure the summary is true. V. FOUNDATION / AUTHENTICATION A. Introduction – judges screen, juries authenticate 1. FRE 901 is the basic rule – ―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.‖ a. This so important that it is almost assumed by the rules. b. Foundation is the basis for relevancy. 2. Example of Laying a Foundation a. Authentication b. Qualifying an expert c. Hearsay exception satisfied 3. Two parts of Authentication a. Basis for Identification (1) What is it? (2) How is it relevant? b. Object appears to be in the same condition – Chain of Custody 4. Foundation is important ONLY for the basic threshold of admissibility. It is the province of the jury to finally determine the question of ―authentication‖ in terms of the overall credibility of a particular piece of evidence. 5. admissibility steps a. were rules complied with b. is it prejudicial (1) standard is abuse of discretion B. Relevance 1. Basic rules are FRE 401, 402 and 403. a. Rule 401: ―"Relevant evidence" means 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.‖ (1) Note the low standard – ANY tendency (2) To make more or less probable b. Rule 402: ―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.‖ c. Rule 403: ―Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.‖ C. D. E. (i) Prejudice (ii) Confusion (iii) Waste of time 2. At root, this is a balancing act a. Balance Relevancy, based on relevance AND probative value b. Against the likelihood of prejudice, confusion of the jury, and waste of time (cumulative). Practical Steps to Authenticate in Court 1. Have exhibit marked for ID 2. Authenticate the exhibit by testimony if it is not self-authenticating 3. Offer the exhibit into evidence 4. Permit adverse counsel to examine the evidence 5. Allow adverse counsel an opportunity to object 6. Submit the exhibit to the court for examination if the court so desires 7. Obtain ruling of the court 8. Request permission to have exhibit presented to the jury by reading it to them of having it passed around among them. Criminal v. Civil Proceedings 1. Note: Authentication is much more of an issue in criminal than in civil cases. Most civil authentication is based on stipulation that a thing is what it purports to be, though not to the ―truth‖ of the thing. 2. Much of this is taken care of in pre-trial activity under the Rules of Civil Procedure, including attachments to petitions and motions, interrogatories, etc. Foundation for admission of Tangible Objects 1. US v. Johnson (1980) – The Ax Case a. Johnson on trial for attacking Papse with an ax b. Papse identified the ax, but with some hesitancy c. Johnson objected to the admission of the ax into evidence (1) Claimed that testimony was inadequate, because it did not differentiate this ax from every other ax. (2) Claimed that the ax was in changed condition, because the report from the scene indicated that there was hair on the ax and there was no hair on the ax in the courtroom. d. Objection overruled (1) Papse had seen the ax at the scene of the crime (personal knowledge), and was able to talk about this particular ax. (2) The change in condition alone doesn’t override Papse’s testimony. (3) Ultimately, a reasonable jury could choose to accept or reject the government’s authentication of the ax. (The question of the ax’s authenticity at this point is a matter of weight and not sufficiency of the evidence). (4) This was not unfairly prejudicial. 2. Chain of Custody - U.S. v. Howard-Arias (1982) a. Boat sinking off coast of Virginia b. Coast Guard recovered bales of marijuana from boat after it sinks. c. Chain of Custody (1) Coast Guard ―field tests‖ the bales and thinks it’s marijuana (2) Coast Guard gave sample to DEA for testing (3) DEA agent who delivered the sample to the lab did not testify d. Court found that the non-appearance of the delivery agent was not fatal to the chain of custody. (1) He never opened the container and never really had a reasonable opportunity to make an material alteration to the material carried. e. Who is necessary? (1) One who seized the evidence (2) One who accepted the evidence for the DEA (3) One who actually did the testing. Writings - US v. Bagaric (1983) (p. 855) a. Police found a letter during a search that tied defendant to the accused RICO violation b. Letter was authenticated based on FRE 901(b)(4): (1) ―Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.‖ c. Reasons to authenticate (1) Letter addressed to co-conspirator (2) Letter postmarked in co-conspirator’s home country (3) Lots of familiar nicknames and terms used (4) Lots of distinctive information Tape Recordings -U.S. v. Biggins (1977) (p. 859) a. An incriminating tape recording of a txaxn involving Biggins was admitted after the Government’s witnesses testified it accurately memorialized the event. b. Participant testimony regarding a transaction electronically recorded may suffice to lay a foundation for admittance of the recording into evidence. c. In McKeever, the Court set forth a 7-part test for admissibility of tape recordings (1) Proper equipment: standard and reliable (2) Competent operator (3) Recording authentic and correct (4) Not altered (5) Appropriately preserved (6) Speakers identified (7) Appropriateness of underlying conversation d. This Court did not reject/accept that test, but specifically focused on establishing the overall accuracy of the recording in the discretion of the judge Telephone Conversation - U.S. v. Pool (1981) a. A phone tap recorded the discussion of a drug delivery and defendant charged with using the telephone in interstate commerce to commit a drug crime. Defendant says that the voice on the phone is not him. b. What do you use to authenticate an incoming phone call? If the call is coming in, you must have some identification of who is doing the talking. (1) Circumstantial evidence (i) Phone company records identifying the place of origin of the call (ii) Admission of the party that he was the party who called (2) Voice identification – FRE 901(b)(5) (i) Must have personal knowledge to recognize the voice (3) Context – FRE 901(b)4) (i) response to particular questions that only the particular person would answer in the manner in which they did answer. c. Telephone calls in the rules 3. 4. 5. F. Incoming calls have to be handled by inference FRE 901(b)(6) covers Outgoing calls (i) by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business (ii) in the case of a person, circumstances, including selfidentification, show the person answering to be the one called (iii) 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 Self-Authenticating Exhibits 1. FRE 902 explains that some forms of evidence are self-authenticating. ―Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: a. Domestic public documents under seal b. 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. c. Foreign public documents. d. Certified copies of public records. e. Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. f. Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. g. 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. h. 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. i. Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. j. 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. k. Certified domestic records of regularly conducted activity 2. Other self-authenticating exhibits a. The New York Times – see FRE 902(6) that applies self-authentication to ―(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.‖ b. Webster’s Dictionary – NO!! The dictionary is NOT official and not published by the government. c. Supreme Court Reporter – Maybe. Depends on whether West Publishing’s version has been adopted as ―official‖ by a government source. d. Sears catalog – Maybe, as a periodical, but probably not. e. Newsweek – Yes, under 902(6) (1) (2) f. Candy wrapper – Yes, under FRE 902(7), ―(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.‖ g. City Council Minutes – Maybe, under 902(4) if all of the requirements can be met. 3. Rule FRE 902(9) about Commercial Paper and related documents – pay careful attention to this rule. See comment 2 on page 986 of the textbook. FRE 104(b) provides the basis for the idea that a series of evidence may be necessary to make each piece of the series admissible. ―When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.‖ G. II. RELEVANCE A. APPLICABLE RULES 1. FRE 401: ―"Relevant evidence" means 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.‖ a. Note the low standard – ANY tendency b. To make more or less probable 2. FRE 402: ―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.‖ 3. FRE 403: ―Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.‖ a. Prejudice b. Confusion c. Waste of time 4. At root, this is a balancing act a. Balance Relevancy, based on relevance AND probative value b. Against the likelihood of prejudice, confusion of the jury, and waste of time (cumulative). B. DIRECT VS. CIRCUMSTANTIAL EVIDENCE 1. Direct a. Personal experience, No inference necessary to see the matter, Direct evidence is always relevant 2. Circumstantial a. An inference is required to reach the conclusion from the premise asserted, this is where questions of relevance come in. b. For circumstantial evidence to be relevant (1) Probative value must outweigh (2) Prejudice, Confusion of the jury, Waste of time (Accumulation) (i) Prejudice – refers to prejudice to the process. Goal is for jurors to make a decision based on rational judgment instead of emotional reaction. (ii) Confusion – how far is the logical leap that the jury must make to ―connect the dots‖ (iii) Waste of time – if apparently credible evidence has already been offered on a point, how much other evidence needs to be permitted to make the same point before the court‘s time is being wasted? c. Relevance is a matter of judicial discretion C. PRAGMATIC RELEVANCE 1. Relevancy balancing test a. Relevant / Probative Value (FRE 401 / 402) b. Prejudice / Confusion / Waste of time (FRE 403) 2. Gruesome Photographs - State v. Chapple (1983) a. First degree murder charge based on a drug transaction gone sour. b. Evidentiary issue is whether the murder scene and autopsy photographs have probative value when defense had stipulated that the victim was murdered. c. Only factual issue remaining for the government to prove was that Chapple was the person identified in testimony as ―Dee‖, the person who did the shooting. d. The photos of the murder might be relevant to the case in that they show evidence of first degree murder, but that matter has already been stipulated. e. Trial judge tried to admit the photos with a ―limiting instructions‖ to the jury to ignore the ―shocking‖ effect of the photographs. f. Court overruled trial judge on two bases (1) The only purpose of the photographs was to inflame the emotions of the jurors. (2) Given that the fact that the photos serve to prove has been stipulated, the photos could only be cumulative. The matter to be proven by the photos has already been conclusively admitted. 3. Other Crimes - Problem 2-D – ―The Battered Wife‖ a. Husband stabs and kills wife during a domestic dispute. Husband says stabbing was an accident and that it was self-defense because Wife was attacking him with a baseball bat. Key question is the intent of the husband at the time of the stabbing. b. Prosecution wants to introduce evidence that wife had previously sought protection in a battered women‘s shelter. c. The testimony of the counselor leads to a reasonable, rational inference to the goal of the evidence (which is to prove intent). d. Look to FRE 404(b): (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. (2) It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.‖ 4. Cumulative Evidence - Problem 2-E – ―The Exploding Gas Tank‖ a. Car is struck from behind and bursts into flames, killing the passenger. Wife sues alleging improper design of the fuel tank caused the death. Automaker introduces testimony that striking vehicle was traveling 68 mph and also introduces driver‘s guilty plea on charges of involuntary manslaughter as evidence. b. Should the guilty plea have been excluded? c. The big picture in this case is whether the improper design of the gas tank caused the explosion and death. (1) Cause of death is burns d. Since evidence of speed is already in evidence, guilty plea is merely cumulative in that it doesn‘t prove any additional facts. e. Criminal conviction is not relevant in a civil trial where the facts have already been placed into evidence. f. Have to show this was an abuse of discretion to allow this evidence in and it is reversible error. 5. Admissions - Problem 2-F – ―My Insurance Will Cover It‖ a. Look to FRE 411: (1) ―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. (2) 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.‖ b. Lina wants to testify that Myra said at the scene that her insurance would cover the accident. ―Whoever screws up, her insurance pays. I‘m sure my insurance will cover it.‖ c. There really isn‘t any question of relevance here, but the problem is that there is a rule specifically addressing this particular circumstance. d. But the judge could probably admit because the evidence is not being offered to prove that Myra was or was not actually insured. Under the balancing test, the evidence is highly relevant and probative (it goes right to the heart of the matter) and is not emotionally prejudicial, confusing, or cumulative. e. Defense could properly ask for a limiting instruction under FRE 105. Objector must make a strategic decision about whether to draw attention to this piece of evidence by requesting such an instruction. 6. Completeness – Problem 2-G – ―Power Rollback Caused the Crash‖ a. Navy flight instructor and student died in crash and husband sues airplane manufacturer, alleging sudden failure of engine power caused the crash. D introduces a letter from husband stating wife tried to cancel the flight. P then seeks to introduce remainder of letter stating cause of crash was engine failure. b. The issue is whether if D introduces a portion of the letter during direct, P can question about remainder on cross. c. Look to FRE 106: (1) When a writing or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part which ought in fairness to be considered contemporaneously with it. d. Look to FRE 611: (1) 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. (2) While report could not have been admitted by P, once D opened the door it can come in during cross. 7. Functions of Judge & Jury – Problem 2-H – ―The Bicycle Brake‖ a. Brakes fail while little girl is riding bike down steep hill, causing her to crash and sustain a skull fracture. Parents sue manufacturer alleging faulty design. Expert testifies that when he saw the bike two years after accident, brakes were faulty. D objects, claiming P did not establish the bike was in substantially the same condition. To lay foundation, another expert testifies he experimented with bike a few weeks after accident, and D now claims those experiments altered the bike. b. Is this an issue of simple relevancy within FRE 104(a) or conditional relevancy within FRE 104(b) (1) Simple relevancy – the judge alone decides whether a particular point is consequential within the meaning of FRE 401. (2) Conditional relevancy – when relevance turns on the fulfillment of a condition of fact, the judge performs only a screening function. Conditionally relevant evidence is admitted subject to introduction of other evidence to support the appropriate jury finding. c. Also Look to FRE 702 and FRE 703 for expert testimony. 8. Circumstantial Evidence - Problem 2-J – ―He Owns a Gun‖ a. Bank robbery (1) CR works near the bank that was robbed. Co-conspirator testifies that CR participated in the planning and execution of the robbery. CR‘s friend owns a car that matches the getaway car and CR‘s fingerprints are found on the friend‘s car. Person on surveillance camera resembles CR and is holding a .38 handgun. (2) Government wants to introduce evidence that CR owns a .38 handgun. No evidence offered that the .38 owned by CR is the same .38 as the one used in the robbery b. Analysis (1) Prosecutor (i) It‘s a piece of a circumstantial puzzle that is critical to the government‘s case. (ii) A person who carries a .38 handgun is more likely to participate in a bank robbery than someone who is not. The handgun provided CR with the opportunity and capability to commit the crime. (2) Defense (i) FRE 403 – prejudice, confusion, waste of time 1. Prejudice – the gun is being introduced only to weigh on the juror‘s emotions. 2. Confusion – the government can‘t prove that THIS gun was used in the robbery, but introducing it will serve to confuse the jury about its role. 3. Waste of Time – there‘s already plenty of circumstantial evidence to put CR at the scene of the crime. II. DIRECT AND CROSS EXAMINATION REVISITED A. Direct Examinations 1. NO leading questions except: a. May be declared a hostile witness b. Develop testimony c. More trouble than its worth 2. Assisting witnesses recall – the ―I don‘t remember‖ problem. Remember the differences between: (1) Past recollection recorded (Document is evidence – FRE 803(5)) (2) Present recollection revived (Testimony is evidence) (i) Knows facts but has memory lapse (ii) Knows ―report‖ will jog memory (iii) Given and reads report (iv) States that memory has been refreshed (v) Testified to what he knows 3. Refreshing Recollection - Baker v. State a. Facts: (1) Guy gets beat up after picking up three people. Problem comes up when police officer is asked to testify about a memory of what the victim (now dead) said to the cop about one of the defendants. Officer Bolton says that he ―can‘t remember‖ if victim told him that one of the defendants was NOT one of the assailants. b. Issue: (1) Defense wants Bolton to review a report filed by another officer (Hucke) (2) Prosecutor says that this is improper and should not be allowed. c. Rule on Refreshing Recollection: (1) Past Recollection Recorded – the record must have been MADE BY THE WITNESS at a time when the witness did remember the events. The piece of paper itself is the evidence for the jury and must itself qualify as evidence. (2) Present Recollection Revived – A brief review of a document recorded contemporaneously with the events the witness is being asked to testify about allows the witness to testify accurately now that his memory has been refreshed. The ―refresher‖ itself is never evidence. d. Defense counsel‘s request in this case that Bolton review ANOTHER officer‘s report fails to fit into either of these exceptions. B. Cross-Examination 1. Cross-Exam on Witness Prep Material - James Julian Inc. v. Raytheon Co. a. Facts: In a labor dispute, Julian sought damages and injunctive relief against Raytheon and several individuals. During the course of the litigation, counsel for Julian prepared a binder of documents, some of which it had obtained through discovery, others of which it had obtained through investigation. Counsel used the materials therein to prepare witnesses for deposition testimony. Upon discovering that these materials had been used to prepare the witnesses, counsel for Raytheon demanded production of the binder. Julian refused, citing work product. Raytheon made a motion to compel. b. Rule: The work product privilege may be waived if such product is used to prepare a witness to testify. c. Deals with FRE 612 – (1) ―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 while testifying, or before testifying, (i) if the court in its discretion determines it is necessary in the interests of justice, (ii) 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. (2) 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. (i) Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. (3) 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.‖ d. Julian says it‘s work product, but court says tough luck. (1) Binder didn‘t include the attorney‘s ―mental processes‖, so it couldn‘t be excluded as work product. (2) Under FRE 612, since it was used to refresh the memory of a deponent the opposing side is entitled to see the memory aid. e. Important thing to learn from this – what you use to prepare your client for testifying is a proper subject for cross-examination. Watch what your witness takes with him/her to the stand. C. Excluding Witnesses 1. FRE 615: ―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. a. 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. b. Even parties excepted may be excluded from the courtroom for bad behavior. c. What witnesses would you NOT exclude? These are exceptions. (1) Psychiatrist testifying as to the mental state of a murder defendant, employing an insanity defense. (2) Parent of a child on trial who is going to be testifying in the trial. 2. Reviewing Transcripts - Problem 7-A ―Daily Transcripts‖ a. All witnesses have been excluded by court order. Plaintiff suspects that defendant has used trial transcripts to prepare a subsequent witness. Plaintiff wants to bar the witness from testifying, because the exclusion order was circumvented. b. Must have a factual basis upon which to proceed c. Invoking the rule FRE 615 (1) Exclusion is REQUIRED, upon request of either party, absent a series of exceptions (i) A party to the action (ii) The designated officer or representative of a party to the action (where the party is not a ―natural person‖). (iii) A person whose presence is shown by a party to be essential (iv) A person authorized by statute to be present (2) Whether or not the judge excludes the witness comes down largely to a determination of ―essential‖ and the amount of prejudice that would be introduced to the process. (3) This is NOT a self-executing rule. You‘ve got to request its enforcement. (4) Must have some factual basis to make the allegation that this rule needs to be enforced. d. Violation does not automatically result in exclusion of the witnesses testimony – judicial discretion. 3. Victims – Problem 7-B – ―Neither Victims nor Parents of a Victim‖ a. Robert is on trial for murdering his wife and seeks to exclude their three daughters from the courtroom during trial as each will testify as a witness to things that were said before and after the shooting. The judge declined to exclude the witnesses, Robert was convicted and appealed. b. The Arkansas rule does not specifically exempt people authorized by statute as the federal rule does, but does exempt crime victims from sequestration. (1) Can the daughters be considered victims under the rule (2) Probably wrong to not exclude as not considered victims c. Was the error reversible error (1) Likely the error was prejudicial as it colored the testimony of the witnesses III. RELEVANCE REVISITED A. Character Evidence 1. Sometimes evidence is TOO RELEVANT. It would overshadow the issues to be appropriately litigated in the case. 2. Red Flag! Character evidence cannot be used to prove conduct. 3. See FRE 404: a. ―Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:‖ (1) Character of accused. (i) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; (2) Character of victim. (i) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or (ii) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness. (i) Evidence of the character of a witness, as provided in rules 607, 608, and 609. b. Evidence of other crimes is not admissible to prove the character of a person in order to show action in conformity therewith. It may be admissible for: (1) Proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 4. 5. 6. 7. (2) Provided that upon request by the accused, the prosecutor provides reasonable notice of the general nature of such evidence Character of Defendant - Problem 5-A – ―Fight in the Red Dog Saloon‖ a. Facts: Fight in a saloon leads to a charge of assault and battery. Defendant pleads self-defense. b. Prosecutor calls a person who knows defendant to testify that defendant is mean and prone to violence. (1) It is relevant to the case (2) Defense response: Prosecution can‘t introduce evidence about the character of the defendant under FRE 404. c. During defense case in chief, defense calls a witness to testify as to defendant‘s peaceable nature. (1) Relevant to the case (2) Admissible because it meets the exception as being offered by the accused. d. Question: Can the prosecutor recall his character witness in case in rebuttal? (1) Yes. Under the rule, the defense has opened the door (this is the exp‘n) Character of Victim - Problem 5-B – ―Red Dog Saloon Part II‖ a. Defendant wishes to introduce evidence about victim‘s character (1) Relevant to victim‘s propensity to violence (2) Exception about character of the victim applies (3) Evidence about victim‘s character should be permitted (4) If the accused offers trait of victim, then prosecution can offer same trait of character of accused b. How do we make FRE 404 work? Through FRE 405 (1) Reputation or 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. (2) Specific instances 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. c. At what point could the prosecution rebut a claim that the victim struck the first blow in the Red Dog Saloon case with evidence of a specific instance of victim‘s peaceable nature? (1) ONLY in a murder prosecution (where the victim isn‘t there to testify himself). Methods of Proving Character – Problem 5-C – ―Red Dog Saloon Part III‖ a. Judge allows Prosecution to put on Rev. Gram to testify that Don is ―peaceably disposed‖ and then allows Defense to put in Coach Jones to testify that Don is ―quick tempered and prone to violence.‖ b. What foundation is necessary to get the above testimony into evidence? (1) Does the witness know the accused and if so, then how does he know him (2) To what extent does the witness know the accused (3) And have you been able to form an opinion? If so, what is that opinion. c. Use FRE 405 – opinion testimony (1) There is nothing in the testimony about reputation in the community, the testimony is based solely on the witnesses own perception/opinion of Don‘s character. (2) Witnesses cannot testify to specific instances of Don‘s conduct that reflects his character because under FRE 405 such testimony is only permitted where the trait of character of the person is an ―essential element of the charge‖, which is not the case here. Cross-Examination - Problem 5-D – ―What Price Truth?‖ a. Judge admits Rev. Gram‘s testimony and excludes Coach Jones‘ testimony. b. On cross, under FRE 405, prosecution attempts to discredit the Reverend‘s statement that Vince is generally a non-violent person by asking the Rev. about a recent domestic violence incident involving Vince. Must have a good basis for this c. The rebuttal door is VERY wide. The question about domestic violence is an attempt to discredit the Reverend. d. Specific instances are admissible on ANY PERTINENT ISSUE testified to on direct. e. Allowed in to impeach the witness, it is within the scope of the direct examination. Would not be allowed in if you were asking to show propensity, but here we are asking about credibility. B. Character as an Element 1. FRE 404(b) a. Character evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence or mistake or accident, b. Provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice of the general nature of any such evidence 2. Criminal Cases – Problem 5-E – ―She‘s a Known Thief‖ a. Gretta is charged with shoplifting and store times without tags are found in her purse. Gretta claims she had the items to change into after work, and prosecution seeks to introduce testimony that Gretta has stolen previously, has a reputation for shoplifting, and has prior convictions for theft. (1) What we are trying to prove here is that Gretta stole at a particular time and place (2) None of the information is admissible (3) If Gretta takes the stand and testifies that she has never been in trouble, she opens the door to introduction of evidence about prior convictions. (i) Although all evidence might be relevant, the prior convictions are most likely to pass the FRE 403 balancing test. (4) Suppose Gretta sues the store for violating the Fourth Amendment, then all evidence contributing to reasonableness comes in (assuming the Amendment applies) C. Evidence of Prior Acts 1. Prior Acts as Proof of Intent - Problem 5-F – ―Drug Sale or Scam?‖ a. Facts: Rhoda used to live with Ron. After moving out, Rhoda tells police she would like to be a paid informant to nail Ron on cocaine dealing. Rhoda sets up a drug deal between Ron and a cop. When the deal is supposed to go down, it doesn‘t go quite as planned. Ron sells the cop some hashish. Ron agrees to sell coke, but doesn‘t like that the money to pay for it is ―dusty‖ and refuses to deal. Government charges Ron with sale of coke and conspiracy to distribute coke b. Ron says there was no intent, that the deal was a ―set up‖ to steal the money for the coke but he never intended to provide any cocaine. c. Government wants Rhonda to testify to past hashish and coke deals d. Analysis of evidence of past acts (1) Goal of the evidence – to show that Ron has participated in the exact same kind of transaction previously. (2) Inference – Common scheme or plan: Ron intended this transaction to work just like the prior transactions. (3) Analyze under FRE 404(b) (i) 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. (ii) It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.‖ (4) This is a balancing test. (i) There is a specific exception for character as evidence of intent (ii) Balance the need of the prosecution to use evidence of other crimes against the prejudice it introduces to the process. (iii) Here, the prosecution probably absolutely needs this evidence and it is highly probative. There‘s nothing particularly uniquely inflammatory to this past acts evidence, considering the other evidence that will be admitted. e. Entrapment Defense (1) Would Ron have had the propensity to make the drug deal, absent Rhonda and the police‘s involvement? (2) Focusing in on ―intent‖ gets the matter under 404(b) (3) Entrapment might also get the matter under FRE 404(a) since he has introduced his character as a defense (4) The government didn‘t engage in any particular misconduct and the past deals probably are sufficient to show a propensity to participate in drug deals as rebuttal to his claim he had no such propensity. 2. Prior Acts to Prove M.O. - Problem 5-G – ―He Came Running in All Hunched Over‖ a. Gore is on trial for a bank robbery but there is no evidence to directly link him to the specific robbery. Gore has confessed to several bank robberies in which the same tactics were used. Can Gore‘s confession be admitted in a trial over another bank robbery conducted in the same manner as Gore‘s previous robberies? (1) Goal of the evidence is to establish Gore‘s identity (2) Statement is to the similarities between the robbery charged and previously committed. (i) The great similarity between the facts of the previous incidents and this one move us closer to Specific Propensity and away from General Propensity, making it more likely to get in under FRE 404(b). (3) The fact that the evidence comes from a confession makes the evidence probably more likely to get in than if you were merely trying to get in evidence of past convictions. b. McCormick says you avoid the problem of propensity entirely if you rely instead on the doctrine of chances. The number of previous incidents suggests a significant and growing probability that Gore committed this latest robbery. Modus operandi. (1) Close resemblance; Similarity (2) Distinctive nature of prior and charged misdeeds 3. Use of Prior Crimes - Problem 5-I – ―It Was An Accident‖ a. Prosecution of a mother for manslaughter of her child due to abuse. Mother claims the child fell down the stairs accidentally. Prosecution‘s key proof is that there are two previous incidents in the last year where mother brought child to emergency room for suspicious injuries, allegedly caused by accidents. (1) Goal of Evidence – the incident that caused the child to die is part of a pattern of so-called ―accidents‖ that are highly suspicious. (i) 404(a) – character of the accused as an abuser who calls her misdeeds ―accidents‖. (ii) 404(b) – used to prove an absence of ―mistake or accident‖ (2) BUT, what about the lack of a link to the mother in regard to the previous incidents? (i) The mother brought the child to the hospital, but how do we know that she was even there when the previous injuries occurred. 1. Prosecution probably needs to show that the mother was the only person with the child at the time that the INJURY occurred. 2. The child may actually have been supervised by someone else during the time that those injuries happened. b. Without a connection between the mother and the previous injuries to the child, introduction of such evidence is probably reversible error. 4. Proving the Prior Act - Problem 5-L – ―I Didn‘t Know They Were Stolen‖ a. Facts: Huddleston is prosecuted for knowing receipt of stolen property. He says he didn‘t know the property was stolen. H sold the property for well below cost. Prosecution wants to introduce evidence of prior sales of stolen property by H as proof that H knew this property that he was selling was stolen. b. Look to 404(b) and analyze (1) Propensity argument – sale for such a low price indicates that the property was stolen and defendant has done this before so he knows how ―fencing‖ works. (2) Government doesn‘t have to prove the prior act, only to prove that the evidence of the prior act is sufficiently probative of a material issue other than character. c. Key points from this problem (1) Think through whether the judge is going to admit it and whether it will be up to the jury to make a decision. (2) Author thinks that the judge ought to decide, but the SC says that the jury gets it. (3) What standard is necessary for the admission of these prior acts? (i) SC says if it is reasonable for the jury to conclude by a ―preponderance of the evidence‖ that the act occurred and D was the actor (ii) Author thinks it should be a higher standard. D. SEX OFFENSES AND EVIDENCE OF VICTIM’S SEXUAL PROPENSITY 1. FRE 412: a. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) [exceptions] and (c) [procedures]: (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. b. Exceptions: (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (i) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (ii) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (iii) evidence the exclusion of which would violate the constitutional rights of the defendant (2) In a civil case, evidence is admissible if it is otherwise admissible under these rules and (i) Its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. (ii) Evidence of an alleged victim‘s reputation is admissible only if it has been placed in controversy by the alleged victim. c. Procedure for admission of evidence under this rule (1) A party intending to offer evidence under subdivision (b) must – (i) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (ii) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise 2. Prior Sexual Conduct - Problem 5-E ―Ordeal of Leslie or Fred‖ a. Leslie accuses Fred of rape, Fred says it was consensual. Fred wants to offer (1) Testimony that he himself had consensual sex with Leslie once the previous summer. (i) FRE 412 (b)(1)(b) exception of a specific instance with respect to the particular parties appears to apply. (ii) More likely that if the ―victim‖ has consented previously then she consented this time (iii) Evidence is clearly relevant (iv) Prosecutor still wants it out, arguing that the previous incident was remote in time and therefore irrelevant to the this charge. (v) Prosecutor further argues that under the 403 balancing test, as informed by public policy, that allowing the previous act in would confuse the jury as to consent in this instance ad would unduly prejudice the process. (2) Testimony by Greg that Leslie is ―sexually very active‖ and ―known as an easy mark‖ (i) This is opinion and reputation evidence (ii) Such evidence is clearly relevant, but in some ways it is so relevant that it must be excluded as a matter of public policy – this is precisely why the rape shield statutes exist. (iii) Greg‘s testimony is clearly inadmissible. He doesn‘t meet any of the Rule 412 exceptions so the general prohibition of such evidence applies. (iv) Note that with more information, there may be an arguable Constitutional basis for Fred to have the opportunity to ―confront his accused‖. (3) Testimony by Thomas that he had sex with Leslie earlier the same night (i) Seems to meet the exception in 412 (b)(1)(a) (ii) Relevance – Thomas‘ testimony would serve to discredit the physical evidence that Fred had caused the ―injuries‖ that the prosecution wishes to introduce. (iii) Prosecution counters with 403 balancing issues. This testimony has nothing to do with consent, which is the issue under which it was raised. (Therefore, defense had better be careful how it phrases the request to admit Thomas‘ testimony.) 3. Defendant’s Prior Sexual Conduct - Problem 5-F - ―I Told Him to Stop‖ a. Craig charged with raping Karin. Karin says she told Craig to stop, Craig says she consented b. On Cross, Defense questions Karin that (1) Karin laughed and responded in kind (2) Karin helped him take off her shirt and bra (3) Karin concedes some, but says that ultimately she physically resisted and that she only helped him undress her for fear that he‘d rip her clothes. c. Prosecution wants to introduce: (1) Laura, ex-girlfriend of Craig, who would testify to a similar incident with Craig. (i) Look to FRE 413: ―(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.‖ (ii) FRE 413 appears to make admissible evidence of propensity that would probably otherwise not be admissible. An exception under 404(b) might apply, but a single incident is probably not enough to counter the general 404 rule. (iii) Under 404(a) it would not be admissible. Under 404(b), maybe – it would require a hearing, but probably not. However, under FRE 413 this pretty clearly comes in. (2) Certified copy of a judgement of conviction for sexual assault on a minor against Craig from three years ago. (i) First, make sure that this crime qualifies as a ―sexual offense‖ under FRE 413(d). ―(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved— (ii) (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). 4. FRE 412 – The Constitutional Exception a. ―(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (1) (C) evidence the exclusion of which would violate the constitutional rights of the defendant.‖ b. Look hard for situations where this exception might apply. c. Looking back at ―I Told Him to Stop‖ – page 477 (Problem 5-F) (1) The closer you can get to specific propensity, the better chance that the evidence will be admitted. (2) You need to be able to show evidence of similarity on the particular facts between the charged offense and the prior act you‘re trying to get admitted. E. Habit and Routine 1. Organizational Custom and Practice - Problem 5-O – ―Was He Served?‖ a. Question of whether an illegal alien was properly served. INS doesn‘t produce the actual agent who says that he served the alien. Instead, INS wants to have a different agent testify to the SOP of the INS. b. FRE 406: ―Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.‖ c. This particular agent has never personally served this type of warrant, and his knowledge of the procedure is based solely on what he‘s heard from other agents. d. Agent is testifying not to the truth of this particular matter, but rather to the process by which such a warrant is served. It‘s up to the jury to make a decision as to whether in this particular instance the procedure was followed. e. In the case upon which this problem is based, the judge allowed this into evidence, but Eckhardt thinks it probably should have been excluded (though if it were not excluded it probably doesn‘t reach the level of ―abuse of discretion‖). f. Note that many states, in such a situation, do require corroborative testimony. g. Note 2: Law favors institutional habit over personal habit. 2. Remedial Measures - Flaminio v. Honda Motor Co. [Civil Negligence issues] a. FRE 407: ―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.‖ b. Key element: AFTER an injury c. Social policy – encourage company to make repairs, so there‘s no disincentive to make them because of an implied admission of liability. d. Note the limitations of the rule. (1) Evidence of subsequent measures may be appropriately entered into evidence when offered for a different purpose: (2) ―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.‖ e. Plaintiff argued that: (1) FRE 407 shouldn‘t apply to products/strict liability. First, the rule doesn‘t apply at all. (2) His complaint is about the wheel ―wobbling‖ and the repair done by the defendant was to a problem with ―weaving‖. Second, even if the rule does apply, it fits into the exception to FRE 407 for impeachment and/or feasibility. (3) Policy – rule shouldn‘t apply under the Erie doctrine. Federal rules only apply in a diversity case when they are procedural. Application of FRE 407 has a direct impact on the substantive claim. f. Judge says that FRE 407 is BOTH federal procedural law AND substantive law. (1) Because this rule doesn‘t preempt the state law claim entirely, the rule should be applied as procedural law. (2) Policy perspective – want to encourage repairs and not frighten manufacturers away from fixing problems. III. Competency of Witnesses A. Background 1. Federal rules include a presumption of competence. It is for the judge to determine who/what is competent to testify in a given instance. 2. Three things we want a witness to do a. First-hand knowledge to impart b. Ability to recall the information and communicate it at trial c. Present the fact in an understandable manner B. Rules 1. FRE 601 – General Rule of Competency a. Every person is competent to be a witness b. Eire: State competency rules 2. FRE 602 – Lack of Personal Knowledge a. Witness must have personal knowedge 3. FRE 603 – Oath or Affirmation a. Every witness must declare that they will testify truthfully (1) Oath (2) Affirmation 4. Test of Truth of Witnesses a. Oath b. Demeanor (1) put them on the stand and look at them c. Cross-Examination d. Voir-Dire (1) Done out of the hearing/presence of the jury and applies in the modern courts primarily to children. C. The Modern View - United States v. Lightly (1982) 1. Facts: Lightly says that he was trying to break up a fight between victim and McDuffie and was not the one who did the stabbing. Court did not permit McDuffie to testify at trial because he was legally insane. 2. Rule: Legal insanity alone will not make a witness incompetent to testify 3. Trial court judge ruled that: a. McDuffie was not competent to testify b. McDuffie was criminally insane and not even competent to stand trial. c. McDuffie had hallucinations. 4. Appeals court reversed the judge‘s exclusion of McDuffie‘s testimony. a. Judge abdicated his discretion b. Judge made no real inquiry into the actual, minimal, competence necessary to testify under the rules: (1) Had sufficient memory (2) Understood the Oath (3) Could communicate what he saw D. The Oath Requirement – U.S. v. Fowler (1979) 1. Facts: Fowler, who was charged with tax evasion, was not permitted to testify because he refused to swear or affirm that his testimony before the court would be true. 2. Rule: One may not testify if he refuses to swear to tell the truth 3. Under FRE 603: a. ―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.‖ 4. All that was really needed was a promise that Fowler would a. Tell the truth in the matter before the court b. Understood that he could be punished if he lied. 5. Note that if a witness refuses to answer questions, witness‘ entire testimony can/should be stricken on request of opposing counsel. E. The Child Witness – Ricketts v. Delaware (1985) 1. Facts: A 6-year old witness was testifying against Ricketts about having been raped a age 5. Common law rule age of competency in most states was 7 years old. 2. Rule: A young child may testify if he demonstrates an understanding of the concepts of truth and falsehood. 3. Judge conducted a voir dire examination (out of the presence of the jury) to determine that the child was competent to testify a. Child understood the difference between a truth and a lie b. Child knew that telling a lie is a bad thing and you can be punished for telling a lie c. Judge decided that even though he couldn‘t be sure that the child understood the concept of perjury, the key was that the child DID understand the difference between truth and a lie. 4. Appeals court allowed the testimony to stand a. Trial court was correct that the bottom line is the child‘s appreciation of the concept of truth b. The child‘s demeanor is critical to the determination, so the trial judge gets VERY broad discretion on this one. F. Previous hypnosis & per se exclusions – Rock v. Arkansas (1987) 1. Facts: Domestic dispute led to violence and Husband accused of trying to strangle wife. Wife claims to have shot him in the chest. Initial hypnosis didn‘t ―recover‖ any memories but subsequently, she began to remember more details. The details were important – suggested that she never pulled the trigger and that the gun went off when it was jarred by husband‘s attack on her. 2. Rule: A criminal defendant may not be prevented as a matter of law from introducing testimony influenced by hypnosis. 3. Wife couldn‘t remember details of the incident prior to hypnosis a. Defense counsel knew full-well that hypnotic testimony was per se excluded b. Counsel was careful to document and follow every procedure in response to the problems with hypnotic testimony and decided to offer it anyway. 4. Arkansas law said that all post-hypnosis testimony must be excluded a. Defense challenged on the basis of the defendant‘s constitutional right to participate in her own defense. b. The ―per se‖ rule removes all discretion from the judge 5. Supreme Court said that the Arkansas rule was disproportionate a. The per se application of the rule prevented the defendant from exercise her right to defend herself. b. The following of the safeguards protected this particular testimony from the concerns of the per se rule. 6. Note that this SC ruling doesn‘t completely prevent the Arkansas judge on remand from excluding anyway – as long as the judge exercised his discretion on the record. G. Jurors as witnesses 1. Tanner v. U.S. (1987) [Post-Verdict Testimony by Jurors] a. Facts: Underlying trial was for mail fraud. After the trial, one of the juror‘s called a defense attorney and told the attorney that several of the jurors consumed alcohol at lunch during the trial and thereafter slept through parts of the afternoon. Another juror came forward and provided further details and also information about drug-use / trafficking during the trial. b. Rule: Juror testimony to the effect that jurors sat while intoxicated is an insufficient basis upon which to grant a new trial. c. FRE 606(b) – (1) ―Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, (2) except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. (3) Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.‖ d. Juror testimony can not be admitted to impeach a verdict unless: (1) Juror testimony regarding improper external influences on a jury may be admitted to impeach a verdict. e. If you do get to voir dire the jury DURING the trial, what can you NOT ask? (1) About the substance of their conversations. f. What can you present to the judge to prove such allegations? (1) Anything BUT a statement/testimony of a juror. Get testimony from court personnel, the waiter in the restaurant, etc. g. Analysis: (1) When defense attorney told the judge about the contact with the juror, judge was VERY angry – he had not given anyone permission to interview jurors. (2) Judge decided, based on the only non-juror evidence, that there were no grounds to revisit the case. (3) Attorney tried to dodge the judge‘s prohibition against contacting jurors by having a PI take new depositions (4) Appeals court said that the attempted dodge was grounds in and of itself to allow the trial judge to make the discretionary decision not to revisit the case. 2. Improper Consideration – Problem 6-B – ―Refusal to Take the Stand‖ a. Adkins is convicted of drug possession after refusing to take the stand. A juror writes the judge that another juror considered this in reaching a verdict. Adkins‘ lawyer files a motion for a new trial. b. May the juror be called to testify? No – it was internal evidence c. May the letter be considered? No – it is evidence of a statement and is also not permitted 3. Juror Fact Finding - Problem 6-D – ―The Jury View‖ a. A juror reports that two jurors in a personal injury action went to the accident scene during deliberations on a fact finding mission. Jury is ONLY permitted to consider evidence that is presented to them on the record. May the defense attorney inquire of the two jurors whether it is true? b. An exception to FRE 606(b) does allow some inquiry into such juror activity: (1) ―a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.‖ c. You can ask if they did it, but not what they thought about it. d. Effect of a ―fact-finding mission‖ is an automatic mistrial. 4. Outside Knowledge in Deliberations - Problem 6-E – ‗The Bomber‖ a. Juror tells another juror that he was a demolitions expert while in the military, and the bomb Jones used was ―powerful enough to kill anyone within 20 feet‖. (1) This witness in effect became an expert – could not cross examine him (argument for mistrial) b. This is mostly an example of the attorneys screwing up the voir dire. c. Can‘t call the jurors and ask them about the influence of the military explosives expert on their decision. That is a juror‘s mental process and is precisely what 606(b) forbids. d. Also, we take jurors knowing full well that every juror brings baggage to the case, and the system EXPECTS such baggage. H. JUDGES AS WITNESSES 1. FRE 605 a. A judge may not testify in a proceeding over which the judge was presiding b. The rule does not prohibit calling a judge as a witness in another trial or hearing, even a post-trial proceeding in the same case. I. THE PERSONAL KNOWLEDGE REQUIREMENT 1. FRE 602 a. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter 2. Hearsay from Non-expert – Problem 6-F – ―The Peacock‘s Tale‖ a. Prosecution is of a tax-preparer, accused of preparing fraudulent and false tax returns b. Prosecution offers an IRS agent‘s testimony that 95% of the preparer‘s returns were fraudulent. (1) But Agent didn‘t have personal knowledge of the ―errors‖, her info came from individuals for whom the returns were prepared. (2) Agent also doesn‘t qualify as an expert – experts in this field don‘t customarily rely on such hearsay information. (3) The information itself IS hearsay. IV. HEARSAY A. GENERAL BACKGROUND 1. Definitions a. Statement (1) Oral or written assertion (2) Nonverbal conduct of a person if intended as an assertion b. Declarant (1) A person who makes the statement initially c. Hearsay (1) Statement presented by someone other than the declarant while testifying at trial offered to prove the truth of the matter asserted 2. Analysis a. What is the statement? b. What is the goal of the evidence being offered? c. What is the inference that a finder of fact is being asked to make? (1) Start with the basic relevancy inquiry. (2) Move to the questions of hearsay (i) Is the statement hearsay? 1. Out of court assertive statement 2. Offered to prove the truth of the matter asserted (ii) IF the statement IS hearsay, does an exception apply. B. WHAT IS HEARSAY 1. Classic Hearsay - Problem 3-A – Three See a Robbery a. Facts: Higgins is charged with the armed robbery and Lissner is called to the stand to testify as to what he was told by witnesses at the scene. b. Lissner says that Plaintalk said ―Higgins is the one who did it‖ – direct evid. (1) Goal of evidence is that Higgins was the culprit (2) No inference is called for (3) Statement is hearsay because it is an assertive statement offered to prove the matter asserted. Plaintalk is NOT the witness, rather Lissner is testifying to what he heard Plaintalk say. (4) Policy: Want to avoid misperception of what Plaintalk actually said and want to provide Higgins with opportunity to cross-examine Plaintalk. c. Lissner says that Sirchev said ―That fellow Higgins went out of here carrying money bags.‖ – circumstantial evid. (1) Goal of evidence is that Higgens was the robber (2) Requires an inference that one carry a money bag out of the bank committed the robbery (3) Statement is still hearsay. Lissner is testifying about what Sirchev claims to have seen. d. Lissner says that Oblique says, ―They ought to put Higgins in jail for this, and throw away the key.‖ – oblique evid. (1) Goal of evidence is to prove that Higgins committed the robbery (and therefore deserves to go to jail). (2) Inference is required (from deserves to go to jail to committed the robbery). (3) Statement is also hearsay. Lissner is still testifying to what another person witnessed and said, in an attempt to prove that Higgins was the robber (to prove the matter asserted). e. These are all clear examples of classic hearsay C. WHAT IS A STATEMENT 1. Nonassertive Conduct – Problem 3-B – Kenworth and Maserati (conduct must be assertive to be hearsay) a. Facts: A huge truck pulls up to an intersection and stops. An open Maserati pulls up beside the car and cannot see the light. The truck starts to pull forward, so the Maserati proceeds and is broadsided. Driver wants to testify that the truck pulled forward, indicating the light was in his favor b. Conduct can be a ―statement‖ when it is intended as an assertion. c. FRE 801: ―A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. d. The statement is the truck moving forward. e. Inference is that the truck‘s moving indicated that the light was green. f. Goal of the evidence is to prove that the light was green. g. Key Question: Did the truck driver intend his moving forward as an assertion? If so, then the moving forward is a statement and is hearsay and inadmissible. (1) In the case of the problem, the judge did not believe that ―scooting forward‖ was INTENDED as an assertion. h. Notes: (1) Intention to make an assertion can be inferred, such as from responsiveness to a question. (2) Most conduct that seems non-assertive is non-assertive. D. WHEN IS A STATEMENT NOT HEARSAY 1. When is a Statement Not Hearsay a. Impeachment b. Verbal Acts (1) The act of speaking certain words has an independent legal significance or consequence quite aside from the truth or falsity of the assertion. (i) i.e. acceptance of a contract c. Proof of effect on reader or listener (1) The words spoken are offered for their probable effect upon the mind of the listener (2) Establishes that behavior was reasonable d. Verbal Objects e. Circumstantial evidence of state of mind f. Circumstantial evidence of memory of belief 2. Impeachment – Problem 3-C – ―The Blue Car Ran a Red Light‖ a. Witness testifies that Driver A had green light. On cross-examination, witness is questioned about a statement made to an insurance adjuster that differs from the statement witness made in court. b. What is the goal of the evidence? To prove that the witness has changed his story (to impeach the witness). (1) NOT being offered to prove the truth of the witness‘ testimony about the color of the light. (2) Rather, the statement is being offered to prove the credibility (or lack thereof) of the witness. c. FRE 806: ―When a hearsay statement, or a statement defined in FRE 801(d)(2),(C),(D), or (E), has been admitted in evidence, (1) 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. (2) 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. (3) 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 crossexamination.‖ d. Note that the statement may be used ONLY for the purpose of impeachment and a limiting instruction may be necessary. e. IMPEACHMENT IS NEVER SUBSTANTIVE EVIDENCE. 3. Verbal Acts – Problem 3-D – ―Any Way You Like‖ (―working words‖ indep. legal significance) a. Facts: State seeks an injunction to shut down massage parlor and calls undercover cop to testify that he was told during a massage that he could ―have it any way you like.‖ b. The evidence is not being offered to prove the truth of the matter asserted (that the massage parlor is a front for a solicitation ring). c. The verbal act [soliciting] has independent legal significance and is therefore NOT hearsay. d. Words having independent legal significance (1) Perjury (2) Sale of Contraband (3) Demand of a Kidnapper (4) Demand for Cash from the Teller (bank robbery) (5) Threat (6) Demand payment in exchange for protection (7) Words comprising a conspiracy 4. Verbal Acts – Problem 3-E – ―Whose Corn?‖ a. Facts: Sharecropping case. Landowner leases land to Sharecropper in exchange for 40% of crop. Sharecropper takes out a loan and defaults, so bank sells off crop. Landowner sues to get his share of crop. Landowner testifies that sharecropper pointed out the double crib and stated to Landowner that it contained Landowner‘s share of the crops. b. This is NOT hearsay. The statement is offered for more than the truth of the matter. c. Sharecropper‘s statement that this is the particular part of the corn that belongs to Landowner has legal significance independent of the truth of the matter. (1) The statement in and of itself constitutes the consummation of a contract. d. What if the bank offers testimony from a bank officer that Sharecropper told the bank that the corn in the double-crib belonged to Sharecropper? (1) What is the significance of Sharecropper‘s words? (i) Sharecropper‘s statement doesn‘t establish ANY legal relationship between Sharecropper and the bank. (2) In this situation, the statement by Sharecropper is pure hearsay. (i) The statement doesn‘t perform the contract or in any way convey the corn to the bank. 5. Effect on Listener – Problem 3-F – ―I‘m from the Gas Company‖ a. Facts: Alford sues the Gas Company for negligence. The gas company defends under contributory negligence on the part of Alford. Alford wants to enter statement of gas company worker that, ―I‘m Joe Forrest from Interstate Gas.‖ (1) Goal of the evidence – prove that Forrest is an agent of the gas company (2) Inference: Forrest‘s statement that he works for the gas company indicates that he is an agent (3) This is clearly hearsay, because it goes directly to the truth of the matter that Forrest is an agent, UNLESS the response to the objection clearly frames the goal of the evidence as the effect on the hearer. b. Second statement to consider is ―show me where the pipeline is, so I can check I out‖ (1) Goal of evidence – to show that Alford‘s behavior is reasonable (2) Inference – complying with the request of the gas company guy was reasonable. (3) NOT hearsay. The truth of the statement is irrelevant. What we‘re trying to prove is that Alford‘s behavior was reasonable. 6. Verbal Object – Problem 3-G – Eagle‘s Rest Bar & Grill a. Verbal Act vs. Verbal Object b. Facts: Ds are charged with dealing drugs. Prosecution must show the three used a house as a warehouse and sold drugs at a nearby bar. Proof submitted is that Seaver attended Univ. of IL and was a supporter of the ―Fighting Illini‖; he was known as Witter, and Flawn resided the house in question. Prosecution seeks to introduce the following items to connect Seaver to the drug dealing. c. Book of Matches from Eagle‘s Rest Bar & Grill (1) Goal of the evidence – to prove that Seaver had been in the restaurant (2) Inference – Seaver had been in the restaurant to conduct a drug transaction there. (3) Hearsay: The matchbook serves to prove that the Bar & Grill exists, and its presence in Seaver‘s pocket serves to prove that Seaver has been there. Essentially, the matchbook is speaking for the proprietor of the restaurant and therefore is hearsay (as a ―verbal act‖). (4) Not hearsay: The name of the restaurant on the matchbook is an inscription on an object. All we‘re doing is comparing the object being offered to similar objects found next to the cash register at the restaurant. (And is therefore a verbal object). d. The ―Chief Illiniwek‖ mug (1) Offered to prove that Seaver had been in the house in Alton where the drug business was based. (2) Inference: Seaver is a fan of the Illini and his nickname appears on the mug, so he was probably at the place where the mug is found. (3) Hearsay: The mug is ―speaking‖ to the truth of the matter that Seaver was in the house. The mug makes a statement. (4) Not Hearsay: The mug is a verbal object. The mug is nothing more than what it is. There‘s no communication, just description. The jury may draw inferences from the description. e. Testimony of the barmaid at the Eagle‘s Rest Bar & Grill (1) Testified she saw Nichols at the Bar, with a man she did not know. (2) Undercover agent testifies that Seaver was the man the barmaid saw, according to barmaid‘s after-the-fact identification. (3) This is a ―verbal marker‖. The barmaid has simply ―marked‖ Seaver as the man she saw. (4) A verbal marker is NOT hearsay, because both parties making the identification come together at trial and may be cross-examined. Though independently each of their statements is probably hearsay, taken together they essentially ―rehabilitate‖ each other. 7. Circumstantial Evidence of State of Mind - Problem 3-H – ―Anna Sofer‘s Will‖ a. Facts: Anna Sofer died and husband sued for wrongful death. D seeks to introduce will to establish that Ira had no expectation of future financial benefit and companionship was not typical of married couple. b. What is the statement made by the will? (1) The portion of the will that says that Ira could only expect to receive $1 from Anna‘s will. c. Inference: That Ira isn‘t entitled to much compensation for consortium d. Not Hearsay: (1) The words of the will have independent legal significance. (2) Also, the words of the will do not require proof that the specific words are true but only to the fact that the words were written. (3) Also, the will is circumstantial evidence of decedent‘s state of mind, and therefore is not hearsay. e. FRE 803(3) 8. Circumstantial Evidence of Memory or Belief - Problem 3-I – ―A Papier-Mache Man‖ a. Case is about the sexual assault of an eight-year-old girl. The girl is able to describe the room where the crime occurred with details about unique items. In an effort to prove that the girl was in the room, Prosecution wants to call two witnesses who have not talked to each other (1) A police officer who interviewed the victim, to testify to her description of the crime scene. (2) Another police officer, who was personally at the scene and can independently describe the scene. b. Statement – description of the room by a police officer who talked to the eight-year-old c. Goal of evidence – declarant knows what the room looks like d. Inference – the description is so unusual that it goes to the eight-year-old‘s knowledge of the room (MORE than truth). e. Statement is non-hearsay, as circumstantial evidence of memory or belief because it goes to prove knowledge and not truth f. This statement describes something that is rare and unique. Putting the two witnesses together leads to an inference. E. PRIOR STATEMENTS BY TESTIFYING WITNESSES 1. General rules a. This rule is there to deal with situations where a witness says something different on the stand than she said previously. b. The PRIOR statement is the substantive evidence c. See page 151 – ―When a cross-examiner on timely cross-examination succeeds in getting the witness to change his story, the integrity of the recantation is apparent, and his original, recanted version no longer stands as substantive evidence.‖ d. FRE 801(d) – Statements that are not hearsay: (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 (i) (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 (ii) (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 (iii) (C) one of identification of a person made after perceiving the person.‖ e. Impeachment evidence is NEVER hearsay, because it is never being offered to prove the truth of the matter. It is offered ONLY to attack the credibility of the evidence. f. NOTE: This evidence is also NOT SUBSTANTIVE evidence. The prior statement usually doesn‘t get in, and if it does get in it gets in only for the specific purpose of impeachment. 2. Prior Inconsistent Statements – Problem – ―The Man Was Driving‖ a. Burdett is a witness to a car accident. To the police, Burdett says that ―the man (Rody) was driving.‖ In court, Burdett testifies that the woman (Kingston) was driving. Kingston‘s counsel introduces Burdett‘s prior statement to contradict his statement in court. b. The prior statement is offered solely for the purpose of impeachment. c. Any statement made by a witness on the stand at trial that is not contemporaneous is hearsay under the definition (remember the ―while testifying at trial‖ element). (1) There is no oath outside of court (2) There is no contemporaneous opportunity to cross-examine the out of court statements. Justice Stone said, you have to cross-examine while the iron is hot, lest falsehoods ―harden and become unyielding to the blows of truth.‖ F. BORDERLAND OF THE DOCTRINE 1. Lying – Problem 3-J – ―My Husband Is in Denver‖ a. Facts: Greg Henson is identified as a man who robbed a bank on April 10. FBI goes to Henson‘s house, but wife says Greg flew to Denver on April 9. FBI checked it out, and there was no such flight. FBI finds Greg at his brother‘s house. At trial, government wants to introduce statement by the FBI agent describing their encounter with Barbara. b. Is the agent‘s statement about what Barbara said hearsay? By definition, Barbara‘s statement is non-hearsay. (1) NO. The statement is being offered to prove the falsity of the matter, not the truth. (2) NO. The statement is a Verbal Act. The words themselves have legal consequences/are a criminal act. (3) NO. The statement goes to show state of mind. 2. Significance of Disclosure – Problem 3-K – ―King Air YC-437-CP‖ a. Facts: Bruno denies any involvement in the King Air plane‘s use in a conspiracy to import marijuana. Bruno denies accepting any money to care for the plane. Bruno wants to call Kay to testify that Bruno told her in front of six others that he was storing a King Air plane. b. The Goal of the Evidence is to show that Bruno SAID this AT ALL, not to prove the truth of what he said. c. This is NOT HEARSAY (1) It‘s a ―truth plus‖ situation. No one volunteers their possession of contraband or involvement in a criminal enterprise. (2) Also, the statement may be circumstantial evidence of Bruno‘s state of mind. 3. Statements to Prove Unspoken Thoughts – Problem 3-M – ―I Didn‘t Tell Them Anything About You‖ a. Facts: Hearsay – The statement is being offered to prove that the accused committed the crime and knew that he committed that crime. (1) Statement is offered to prove the truth of his guilt. (2) Statement was not made at trial. (3) Statement was no made by the declarant. b. Non-Hearsay (1) The statement is a Verbal Act. Because conspiracy is one of the charges, the words have legal significance. (2) ―I didn‘t tell them‖ is an agreement to continue the conspiracy. V. HEARSAY – CONFRONTATION CLAUSE A. MODERN DOCTRINE 1. Two-Pronged Approach – Ohio v. Roberts a. Does not bar admission of an unavailable witness‘s statement against a criminal defendant if the statement bears ―adequate indicia of reliability.‖ (1) Firmly rooted hearsay exception (2) Bears particularized guarantees of trustworthiness 2. Testimonial Approach – Crawford v. Washington (2004) – in criminal matters, confrontation trumps. We’ll quibble for years about what is testimonial. a. Crawford stabbed a man who allegedly tried to rape his wife. When the prosecution played the tape-recorded statement of his wife against him at trial, which did not afford the opportunity for cross-examination, Crawford argued he was denied the Sixth Amendment‘s guarantee of confrontation. b. Currently applies to criminal cases only c. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation! d. What is considered testimonial? (1) Testimony in formal proceedings (2) Statements made under police interrogation, other than by the defendant (3) Guilty plea allocutions (4) Affidavits in criminal litigation VI. FRE 804—HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE A. TWO-PRONG ANALYSIS 1. Unavailability a. Physically Unavailable (1) Dead – sick (2) Beyond process or ―other reasonable means‖ b. testimony unobtainable (1) cannot remember (2) refuses to testify (3) invokes a privilege 2. Exceptions a. former testimony b. statement under belief of impending death c. statement against interest d. statement of personal or family history e. removed f. forfeiture by wrongdoing B. FRE 804(a)—UNAVAILABILITY 1. Reasons for Unavailability—turns on unavailability of testimony not person a. Claim of Privilege (e.g., 5th Amend, spousal, attorney-client) b. Refusal to Testify—if witness claims privilege which is rejected by trial judge but still refuses to testify c. Lack of Memory—lack of memory must be established by the witness himself and trial judge can choose to disbelieve claim of lack of memory d. Death or Illness—continuance may be granted if condition is temporary; Confrontation Clause problems for former testimony e. Unable to Procure Testimony—must be both beyond judicial process and other reasonable means to secure presence at trial 2. Unavailable – Problem 4-L – ―The Government Let Her Go‖ a. A witness from Australia is allowed to return home after the government obtains her deposition to be used at trial b. Unavailability (1) She is unavailable in that she is now in Australia c. What is the obligation of the government then to obtain witnesses? (1) Must exercise good faith (2) The government should have offered her expenses and some sort of formal request for her to return and testify d. If the prosecutor has taken reasonable steps to obtain the testimony of the witness, the deposition might get in. Their actions in this case were not sufficient. 3. Barber v. Page a. Incarceration outside the jurisdiction is not sufficient to show unavailability in the absence of proof of efforts to compel attendance. C. FRE 804(b)(6)—FORFEITURE BY WRONGDOING 1. evidence that would be admissible under 804(b) will not be admitted where the party against whom the statement is offered has ―engaged or acquiesced in wrongdoing‖ leading to the declarant‘s unavailability. 2. preponderance of the evidence standard applies D. FRE 804(b)(1)—FORMER TESTIMONY 1. ELEMENTS a. Applies to testimony given at another hearing, trial or deposition. (1) Grand jury testimony not admissible against criminal Δ because no opportunity to cross b. Party against whom the testimony is admitted must have had opportunity to cross-examine the witness at the time of testimony c. Lloyd v. American Export Lines (1) In defending against a counterclaim brought by Alvarez, Export sought to introduce into evidence testimony that Lloyd (who was unavailable) had given at a Coast Guard hearing regarding the fight between himself and Alvarez aboard one of Export‘s ships. (2) 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 the testimony by direct, cross or redirect examination.‖ (3) Requires only opportunity, not actual examination. (4) Only admissible against a party involved in prior testimony or predecessor in interest (civil only). (i) Party having like motive to develop the testimony about the same material facts. 2. Other ways to admit former testimony a. Admission of party opponent—FRE 801(d)(2)(A) b. Prior inconsistent statement—FRE 801(d)(1)(A) – can always use E. FRE 804(b)(2)—DYING DECLARATIONS 1. UNAVAILABILITY—death is not required and a declarant who subsequently recovers but refuses to testify is still unavailable for these purposes 2. EXPECTATION OF DEATH—statement must be made believing death was imminent with no hope of recovery a. Declarant‘s belief of impending death may be established by the declarant‘s own statements or shown circumstantially 3. SUBJECT—Only statements concerning the cause or circumstances of impending death are admissible (includes identification of assailants as events leading up to injury) 4. Only admissible in homicide cases (or civil cases) F. FRE 804(b)(3)—STATEMENTS AGAINST INTEREST 1. ELEMENTS: a. Statement made by someone with firsthand knowledge (1) Need not be party to the case b. Which is against the interest of the declarant at the time the statement was made (1) Pecuniary or penal interest under reasonable person standard. Based on the principle that reasonable people do not make self-inculpatory statements unless they believe them to be true. Williamson v. United States (1994) 2. Statements Exonerating the Accused a. Corroboration Requirement—when declarations against penal interest are offered in criminal trial to exculpate the accused the statement must be corroborated by circumstances which make it reliable. b. The exclusion of declarations against interest offered by criminal Δ for exculpation violated due process. Chambers v. Mississippi (1973) 3. Collateral Statements—when the statement is against both the declarant and a third party, it is not admissible against the third party. Williamson v. United States (1994) a. Confrontation problem if a witness can make self & 3rd party inculpatory statements then plead the 5th because there is no cross G. FRE 807 – RESIDUAL EXCEPTION 1. Not covered by FRE 803 or 804 2. Equivalent circumstantial guarantees of trustworthiness 3. ELEMENTS: testimony is not excluded if: a. Material fact b. More probative than other evidence that can reasonably be obtained c. Admitting the evidence serves (1) Purpose of rules (2) Interest of justice d. Notice to adverse party in advance of trial (1) Fair opportunity to prepare (2) Intention to offer (3) Particulars (4) Name and address 4. State v. Weaver (1996) a. Weaver appealed from her conviction for first-degree murder of eleven-month old Melissa Mathes on the basis of affidavits of several women regarding statements by the child‘s mother that she hit her head on a coffee table. The court considers whether or not to admit the affidavits for the purpose of determining whether or not to grant a new trial. b. In making a trustworthiness determination, the court must consider: (1) the declarant‘s propensity to tell the truth, (2) whether the alleged statements were made under oath, (3) assurances of the declarant‘s personal knowledge, (4) the time lapse between the event and the statement concerning the event, and (5) the motivations of the declarant. c. The Court finds the affidavits should be admitted and a new trial is ordered. At the second trial the defendant is acquitted based on the testimony of the women who provided the affidavits. VII. HEARSAY - UNRESTRICTED EXCEPTIONS A. GENERAL 1. Statements that are admissible even though they are hearsay regardless of the availability of the declarant 2. Trial court determines admissibility under FRE 104(a) 3. POLICY—based on some circumstantial guarantee of trustworthiness, necessity or practical convenience B. PRESENT SENSE IMPRESSIONS - FRE 803(1) 1. ELEMENTS: a. Subject - Statement describing or explaining an event or condition b. Perception - About which the declarant had firsthand knowledge c. Time - Made at the time the declarant was perceiving the event or immediately thereafter 2. The contemporaneousness of present sense statements eliminates ordinary hearsay concerns of lapse of memory or fabrication – ―res gestae‖ 3. Nuttall v. Reading Co. (1956) a. Facts: Nuttall attempted to introduce statements made by her late husband about being ill during a telephone conversation with his employer as evidence that he was forced to work. b. Rule: In an action based on forcing an ill employee to work, testimony regarding the employee‘s conversations with the employer may be admissible. C. EXCITED UTTERANCES - FRE 803(2) 1. ELEMENTS: a. A startling event or oondition b. A statement relating to that event c. Made by a declarant with firsthand knowledge d. Made while the declarant was under the stress of the excitement caused by the event. (1) Among the factors to consider in determining whether the declarant was under the stress of the event are (i) the declarant‘s age, (ii) physical and mental condition of declarant (iii) characteristics of the event and (iv) the nature of the statements. (2) Time elapsed since the event is not dispositive of the issue, nor is the fact that the statements were a response to police questioning. 2. Police Inquiry - United States v. Iron Shell (1980) a. Facts: Lucy, a young girl, was raped by Iron Shell. When questioned by police, she said that Iron Shell grabbed her, choked her, and tried to ―what you call it me.‖ Lucy refused to testify at trial. The officer testified to this at trial and Iron Shell argued it was not an excited utterance because there was a delay and the statements were made in response to an inquiry. b. Rule: A lapse of time or the fact that the out-of-court statement was made in response to an inquiry does to necessarily remove the excited utterance hearsay exception. 3. Other permissible considerations: a. Court may also consider underlying policy of the exception (suspension of capacity to fabricate) to determine if there are sufficient indicia of reliability to admit under 104(a). b. When the declarant is an unidentified bystander the court should be more hesitant to admit because (1) firsthand knowledge rule may be difficult to satisfy; (2) difficult for counsel to challenge existence/veracity of declarant D. PRESENT PHYSICAL OR MENTAL CONDITION - FRE 803(3) 1. Permits admission of statements of present physical or mental condition (e.g., intent, plan, motive, design, emotion or mental feeling) a. Then existing physical condition b. Then existing mental or emotional condition c. Subsequent conduct not including statement of memory or belief d. Exception for facts concerning a will 2. State of Mind a. ELEMENTS: (1) Must relate to material issue in the case (2) Statements by accused to show lack of requisite mens rea (3) P does not need this doctrine because statements by accused are admissible as admissions of party opponent b. Relevance of State of Mind - Problem 4-J – ―He says He‘ll Kill Me‖ (1) The prosecutor believes defendant Neff was collecting protection money from Quade when Quade balked and was killed. At trial, prosecutor seeks to introduce statement by Sarnak that Quade told him that Neff threatened to kill him. (2) If the charge is extortion, where fear is a key element and state of mind gives us that, then the statement comes in. (3) If it were a murder charge, state of mind is irrelevant and the statement does not come in. (i) If self defense is raised as an affirmative defense, then it might come in to establish fear. (depends on whether the state of mind is relevant to the goal of the evidence) 3. Future Conduct a. Hillmon doctrine (1) permits statement of intent to act with another person to be admitted as evidence that the declaring performed his part of the stated act, and the trier of fact may consider the likelihood that the third party acted in the manner the declarant intended. (2) When intent is a material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. b. Mutual Life Insurance v. Hillmon (1892) (1) Facts: Hillmon‘s husband died when he was accidentally shot by his companion, Brown and his wife attempts to collect insurance. Brown states that Hillmon andhe had in fact murdered Walters and attempted to pass the body off as Hillmon. Mutual wants to introduce letters written by Walters that he was to accompany Hillmon in an effort to establish that Hillmon and Brown actually shot Walters (2) Rule: Whenever an intention is of itself a distinct and material fact in a chain of circumstance, it may be proved by contemporaneous oral or written declaration of the party. (3) Analysis: (i) Can what Walter said be taken as proof that Hillmon went with him? 1. there was no other way of showing Walter‘s intention to accompany Hillmon due to Walter‘s death, but they were just as competent as if he had testified to them himself. 2. whether or not they are true or false is a question for the jury c. United States v. Pheaster (1976) (1) Inciso, Pheaster and others were part of a plot to kidnap Larry. Larry disappeared after going to meet Angelo, whom he had told his girlfriend earlier in the day was going to give him free marijuana. She identified Angelo as Inciso and prosecution attempts to introduce statements Larry made to girlfriend. (2) Rule: Hearsay evidence of statements in which the declarant has stated his intention to do something with another person are admissible under the state of mind exception to the hearsay rule to show that he intended to do it, from which the trier of fact may draw the inference that he carried out his intention and did it. (3) 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. 4. Current Belief of Past Events a. Generally statements about current belief of past events are not admissible. Shepard v. United States (1933) b. Statements of recollection offered to prove recalled fact are only admitted when the case involves the execution, revocation, identification, or terms of a testator-declarant‘s will. 5. NOTE: distinction between statements regarding mental state and mental condition a. ―John is a bad person‖ offered to show motive not to prove statement not hearsay b. ―I will kill John‖ offered to prove intent to kill hearsay admissible under 803(3) E. MEDICAL TREATMENT DIAGNOSIS – FRE 803(4) 1. ELEMENTS: a. Statements of identity made to a health professional are admissible when (1) The declarant‘s motive in making the statement is for the purpose of diagnosing or treating a medical condition AND (2) The content of the statement must be reasonably relied upon by the physician in rendering the treatment or making the diagnosis. b. This includes statements about cause of injury. c. Not limited to statements to physicians so long as statement is made for the purpose of medical treatment. d. Only medical professional can testify to statements e. Generally statement of identity of attacker would not be admitted, but in child abuse cases of abuse by a household member, identity is relevant to treatment of stopping abuse. 2. Blake v. State (1997) a. Facts: Teen victim of child abuse tells the ER doctor that she was raped by Blake. The victim did not testify and the prosecution wants to introduce the child‘s statements to doctor about sexual abuse. b. Rule: A statement made by a child victim to a medical professional is admissible I situations involving abuse of the child F. RECORDED RECOLLECTION – FRE 803(5) 1. ELEMENTS: a. Witness at trial must have insufficient recollection to testify fully and accurately about the matter recorded. b. The record must correctly reflect the knowledge the witness‘ once had (1) Made or adopted a record (permits 3rd party preparation) (2) Based on firsthand knowledge (3) When the matter recorded was fresh in the witness‘ memory (4) 3rd party may testify to accuracy 2. Qualifying records may be read in to evidence but not received as an exhibit unless offered by an adverse party. 3. Admission does not violate Confrontation Clause. 4. Ohio v. Scott (1972) a. Facts: Scott was convicted of shooting at Lee and for shooting at 2 police officers. Witness wrote a statement at the time implicating Scott and then at trial provided only general details. The written statement was introduced at trial but the past recollection recorded was not recognized in the state. b. Rule: The prior recorded statement of a witness in a criminal trial can be admitted under the exception to the hearsay rule for records of ―past recollection recorded.‖ G. BUSINESS RECORDS – FRE 803(6) - this is the most used 1. ELEMENTS: a. the record is one that is regularly kept in the course of regular business b. the source of the information is a person who has personal knowledge of the information stated therein c. the information was collected and recorded at a time contemporaneous with the activity observed d. proper foundation is laid by the custodian of the records or another similarly qualified witness (1) or self-authenticating by 902(10) and (11) (2) Foundation witness need not have firsthand knowledge of the particular entry e. Unless the source of information or the method or circumstance of preparation indicate a lack of trustworthiness 2. MEDICAL RECORDS: a. Usually admissible as business records b. The person who makes the record must be someone who regularly makes such records in the course of the business. 3. Petrocelli v. Gallison (1982) a. Facts: Gallison operated on Petrocelli and it was later alleged Gallison had seared a nerve. Petrocelli attempted to introduce an operative report from a second operation, author unknown, indicating the nerve was severed in the first operation. b. Rule: For a portion of a business record to be admissible, the source of the information contained therein must be known. c. Statements made to a doctor by a patient and recorded in the medical records are not admissible because the patient does not regularly relate his medical history as part of the hospital‘s business routine. d. Opinion not admissible under FRE 702 (expert witnesses) should not be admitted just because it‘s in a medical record unless part of regular course of business 4. Norcon, Inc. v. Kotowski (1999) a. Facts: Kotowski sued for sexual harassment by a Norcon employee and offered into evidence a memo summarizing information information gathered by a security investigator about the employee. Kotowski contended it was a business record, and Norcon stated it could not be because it contained statements of others. b. Rule: Information that is otherwise hearsay may be admissible under the business records exception so long as all of the persons furnishing the information to be recorded are acting in the regular course of business. 5. Absence of Business Records - FRE 803(7) a. Failure of a record to mention a matter which would ordinarily be recorded can be entered as evidence of its nonexistence. H. PUBLIC RECORDS - FRE 803(8) 1. Admissible on the assumption that a public official will perform his duty properly and is unlikely to remember details independently of the record. 2. ELEMENTS: a. Setting forth activities of the office or agency (1) No firsthand knowledge requirement for person recording, only for person transmitting information b. Recording matters observed pursuant to legal duty (1) Excludes police reports in criminal cases both for Confrontation Clause concerns and because adversarial system makes the reports less reliable. I. J. K. L. (2) Police reports from the scene of the incident are admissible in civil trials. (3) Only includes those with duty to report—if no duty then it is double hearsay. c. Investigative reports admissible in civil actions and against the prosecution in criminal actions if (1) Factual findings (2) Resulting from an investigation made (3) Pursuant to legal authority (4) Unless lacks trustworthiness 3. Baker v. Elcona Homes (1978) a. Facts: Baker sued to recover damages fro a car accident with a truck driven by an Elcona employee and objected to the introduction of a police accident report the included the officer‘s opinion and statements of witnesses b. Rule: When they result from an investigation made pursuant to authority granted by law, factual findings in public records and reports are admissible unless the sources of information or other circumstances indicate lack of trustworthiness. 4. United States v. Oates (1977) a. Facts: Chemist who tested heroin was unable to testify and another chemist testified using his report. b. Rule: In criminal cases, reports of public agencies setting forth factual findings resulting from investigations made pursuant to authority granted by law are inadmissible hearsay if the reports are sought to be introduced against the accused. 5. FRE 803(10)—permits admission of evidence of the absence of a public record with showing of a diligent search FRE 803(16)—ANCIENT DOCUMENTS—permits admission of documents more than 20 yrs old that have been authenticated under FRE 901(b)(8) FRE 803(18)—TREATISES—permits admission of treatises as substantive evidence when authoritativeness is established by another expert or judicial notice. 1. only allowed when expert is on the stand 2. may be read to jury but not entered as exhibit FRE 803(22)—JUDGMENT OF PRIOR CONVICTION 1. judgments of prior convictions are admissible to prove any fact essential to sustain the judgment a. limited to felony criminal convictions (not civil judgments) 2. rebuttal evidence may also be admitted FRE 807—CATCHALL EXCEPTION—authorizes the court to admit hearsay that doesn‘t fall under another exception if it is trustworthy and necessary. 1. Statements supporting criminal exculpation should be admitted even if they don‘t fall under a hearsay exception so long as they are trustworthy. State v. Weaver (1996) [mother made statements regarding the source of injuries leading to baby‘s death, for which the babysitter was wrongfully convicted] a. Frequent example is grand jury testimony 2. ELEMENTS: a. Offered as evidence of a material fact b. More probative on the point than any other evidence the proponent can procure through reasonable efforts c. The purpose of the rules and interest of justice will be served by admission of the statement in to evidence VIII. STATEMENTS CONSIDERED NON-HEARSAY BY RULE A. GENERAL BACKGROUND 1. Transformed from hearsay into non-hearsay 2. Are admissible as substantive evidence 3. Subject to cross examination regarding the statement B. DECLARANT TESTIFYING 1. Prior Inconsistent Statements - FRE 801(d)(1)(A) a. Elements: (1) Declarant testifies at trial (2) Subject to cross examination concerning the statement (3) In fact inconsistent (4) Under oath (5) Trial-hearing-proceeding-deposition b. Provisions of Statute: (1) Any prior inconsistent statement can be admitted for impeachment purposes, but not as substantive evidence (2) Prior statements made under oath are not hearsay and are admissible as substantive evidence if relevant. (3) Why not impeach?— (i) impeachment evidence only used to question credibility of witness, not admitted as substantive evidence; (ii) don‘t undermine witness‘ credibility when you want the first statement believed. c. State v. Smith (1) Facts: A sworn statement by assault victim Conlin was admitted as an inconsistent statement after she refused, at trial, to identify Smith (D) as her attacker, as she had earlier done. (2) Rule: A sworn statement inconsistent with courtroom testimony may be substantively introduced if reliable. d. Problem 4-A – ―I Got Amnesia‖ (1) Facts: Barlow is tried on charges of racketeering etc. arising out of an armed robbery. Breen testified at grand jury but then doesn‘t remember anything when called at trial. The prosecutor argues that Breen‘s lack of memory is feigned and is therefore inconsistent with earlier testimony and offers a transcript of that testimony. (2) Standard is whether a reasonable person could infer by comparing the two statements that it is the product of two beliefs. Not everything that contradicts is inconsistent. 2. Prior Consistent Statements – FRE 801(d)(1)(B) a. Elements: (1) Declarant testifies at trial (2) Subject to cross-examination (3) In fact consistent (4) Made before motive to fabricate or influence (5) Rebut an express or implied charge of recent fabrication, improper influence, motive b. Provisions of Statute: (1) ―Premotive‖ requirement—only consistent statements made before the charges of fabrication or the emergence of improper motive can be admitted. (2) Only admissible once a witness‘ motive or credibility has been impeached (see prohibition on bolstering) (3) Rehabilitation—some courts have held that if the statement is not permitted under 801(d)(1)(B) as substantive evidence it may still be admitted as rehabilitative evidence. c. Tome v. United States (1995): (1) Facts: Tome, convicted of felony sexual abuse of a child, appealed, contending that the trial court abused its discretion by admitting out of court consistent statements made by his daughter to six prosecution witnesses who testified as to the nature of Tome‘s sexual assaults on his daughter. (2) Held: Prior consistent statements can be used for substantive purposes after the statements are admitted to rebut the existence of an improper influence or motive. (3) A prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive is admissible if the statement was made before the alleged fabrication, influence, or motive came into being but inadmissible if made afterward. (4) Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited. 3. Prior Statements of Identification – FRE 801(d)(1)(C) a. Elements: (1) Declarant testifies at trial (2) Subject to cross examination (3) Identification of a person (4) Made after perceiving the person b. Provisions of Statute: (1) Permits admission of identifications of a person after perceiving that person (e.g., line ups or photographic display but not limyeited to formal ID) (i) Composite sketches are admissible under exception for prior identifications as substantive proof of identity. State v. Motta (1983) (ii) Because evidence is substantive and not corroborative, in-court identification is not necessary prior to admission (2) Cross-examination Reqs.—Confrontation Clause requires opportunity for effective cross examination; this is satisfied even if the witness no longer remembers the incident which led to the prior identification. c. Police Composite Sketches - State v. Motta (1983) (1) Facts: Iwashita was robbed at gunpoint. Soon thereafter, based on her descripton of the perpetrator, a composite sketch was made by a police artist. Iwashita later picked out Motta‘s photo from a series of mug shots. At trial, Iwashita identified Motta as the assailant. The sketch was admitted as substantive evidence over Motta‘s hearsay objection. Motta was convicted and appealed. (2) Held: A composite sketch is not made inadmissible by the hearsay rule. (3) The statement is properly considered the product of out of court statements whose only relevance is their own truth. (4) However, the rule permits the substantive introduction of prior identifications as a hearsay exception, as long as the identifying individual is available for cross-examination. C. ADMISSIONS BY PARTY OPPONENT 1. General Background: a. Admission by party-opponent offered against a party (1) Own statement (2) Adopted admissions (3) Authorized statement (4) Employee-in-scope made during the existence of the relationship (5) Co-conspirator b. Statements ―against interest‖ are admissible against a party when inconsistent with his position at trial c. Provisions of the statute (1) admissions of party opponents are not classified as hearsay and are admissible (i) Neither the First Hand Knowledge Rule (FRE 602) nor the opinion rule (FRE 701) applies to admissions of party opponents but party may take the stand to explain their statement (ii) NOTE: special exclusion of compromises (FRE 408) and plea bargains (FRE 410) (2) Policy— there is no cross-examination problem because the declarant need not cross-examine himself; product of adversarial system 2. Individual Admissions - FRE 801(d)(2)(A) a. Any statement made by a party that is inconsistent with that party‘s position at trial. b. Guilty Pleas in criminal proceedings are admissions and thus are admissible against the party in c. future proceedings (but not if withdrawn under FRE 410) (1) Judgments of prior conviction may be admissible under 803(22) Confessions are admissible as admissions regardless of the constitutional requirements surrounding obtaining the confession. (1) Confessions of one party may not be admitted against a second party, nor admitted at all in a joint trial. NOT Declarations Against Interest—differences: 804(b)(3) (1) Admissions need not have been against the interest of the declarant when made. (2) Declarant must be unavailable for a declaration against interest to be introduced. (3) Firsthand knowledge rule applies to declarations against interest (FRE 602) (4) Declarations against interest need not be made by a party Admission by Party - Problem 4-B – ―Fire in the Warehouse‖ (1) Facts: Martin‘s truck burns up in paint shot fire after Dugan left welding torch on ground. Martin sues Carter under respondeat superior and seeks to introduce statement by Carter to insurance adjuster that fire started when torch was placed too close to fumes. (2) Analysis: (i) Carter‘s position at trial is that he is not at fault (ii) Carter‘s statement should come in under the rule because it is an admission Criminal Confessions - Bruton v. United States (1) Facts: Evans confessed to postal authorities that both he and Bruton committed a robbery. Evans‘ confession was admitted at a joint trial and the jury was told they could not use it as substantive evidence against Bruton. (2) Rule: The conviction of a defendant at a joint trial must be set aside despite a jury instruction that a co-defendant‘s confession incriminating the defendant must be disregarded in determining his guilt or innocence. Statements of Servant - Problem 4-D – ―His Master‘s Car‖ (1) Facts: Napton works for Ace Buidling Supplies. While making deliveries one day, he runs over Obrien. He is subsequently fired. Napton then tells Obrien that the brakes failed and he was speeding at the time of the accident. (2) Statement that the brakes failed - EXCLUDE (i) Legally 1. Napton – was not responsible 2. Ace – Responsible (ii) Relevant 1. Napton – not legally relevant because he was not responsible for the truck, the company is 2. Ace – relevant (iii) Reliable 1. Napton a. Legally irrelevant so should be excluded b. If it were relevant, then it would be admissible under 801(d)(2)(A) since it is his own statement 2. Ace a. Inadmissible as hearsay so should be excluded b. relationship must still exist for it to be trustworthy enough to get in (3) Statement that he was speeding – ADMIT AGAINST NAPTON ONLY (i) Legally d. e. f. g. 1. Napton – directly responsible 2. Ace – indirectly responsible (ii) Relevant 1. Napton – relevant 2. Ace – relevant (iii) Reliable 1. Napton – admissible under 801(d)(2)(A) 2. Ace - Inadmissible as hearsay under 801(d)(2)(D) because not made during the existence of the relationship. 3. Adoptive Admissions - FRE 801(d)(2)(B) a. General Background (1) A statement adopted by a party is admissible as substantive evidence if offered against that party. (i) SILENCE—Silence in the presence of an incriminating statement suggests tacit admission of that statement. (ii) Failure to answer or correct statements in a letter may be used as an adoptive admission. b. DOCUMENTS—possession of documents is not an adoption of their contents, however, use of the documents can amount to admission that contents are correct (e.g., reprinting a newspaper article, distributing scientific articles to train employees) c. Adopted Admissions by Silence – United States v. Hoosier (1) Facts: A witness at Hoosier‘s trial for armed robbery was permitted to testify to certain statements Hoosier‘s girlfriend had made in Hoosier‘s presence and to which he had offered no denial. (2) Rule: Where one of the parties to the action has manifested his adoption of or belief in the truth of a statement that would otherwise constitute hearsay, it is admissible under an exception to the hearsay rule for admissions by a party opponent. (3) Adoption or acquiescence in the statement of another can be manifested in any appropriate manner – including failure to protest an untrue statement made in one‘s presence when such a protest would normally be forthcoming under the circumstances were the statement untrue. (i) Typically would have been denied (ii) Made in his presence (iii) He heard it d. Right to Silence - Doyle v. Ohio (1) Facts: The prosecution attempted to impeach drug offense defendant Doyle‘s exculpatory story by noting his failure to tell the same story upon arrest, at which time he had exercised his right to remain silent. (2) Rule: A state may not impeach a defendant‘s exculpatory story by noting his failure to tell the same story upon arrest after having been advised of Miranda. (3) To do otherwise would be a denial of due process. (4) Hinges on his being advised it was his right to remain silent. 4. Authorized Admissions - FRE 801(d)(2)(C) a. A statement made by a person authorized by a party to speak for it is admissible substantive evidence against that party (applies to people with speaking authority, e.g., attorneys, partners, corporate officers) (1) Contents of the statement can be considered but may not be alone sufficient to establish declarant‘s speaking authority. 5. Agent Admissions - FRE 801(d)(2)(D) a. Agent is someone who is able to alter the legal relationship between the principal and third parties. b. GENERAL: Statements by agents or servants (1) concerning a matter within the scope of their employment (2) made during the existence of a the employment relationship c. Does not require that the declarant have personal knowledge of the facts underlying the statement. d. Employee – Mahlandt v. WC Survival and Research Center (1) Facts: Boy ended up in enclosure where Center Director kept wolf. The wolf bit the boy. There was some evidence boy received injuries while crawling under the fence. P seeks to introduce evidence that Director left note on President‘s door saying wolf bit the child. (2) Rule: Statements made by agents within the scope of their employment admissible and there is no implied requirement that the declarant have personal knowledge of the facts underlying his statement. e. Attorney statements may be admitted as authorized or agent admissions including statements made in prior trials or adoptive admissions in party briefs, affidavits, search warrants, etc. f. LIMITATIONS: (1) Still subject to FRE 403 balancing (2) Admissions by police not admissible against state (though paid govt informants may be) 6. Co-Conspirator Admissions - FRE 801(d)(2)(E) a. Elements (1) During the Course (2) In furtherance (3) Of a conspiracy (4) Of which the declarant is a member b. A conspirator‘s statement made during and in furtherance of the conspiracy is admissible as substantive evidence against another conspirator. (1) Usually statement is against the penal interest of the declarant, but not required to be against interest when made. (2) Statements in initial agreement to conspire may be admissible as verbal acts. c. Under 104(a) the judge must determine admissibility but (1) Independent proof of conspiracy is not necessary prior to admission. (2) The statement and defendant‘s own admission are sufficient to establish conspiracy by preponderance of the evidence. d. Co-Conspirator - Bourjaily v. United States (1) Facts: Bourjaily was charged with conspiracy to distribute cocaine and the Government introduced out-of-court statements made by Lonardo, an accomplice, which arguably implicated Bourjaily in the conspiracy. He then contended that the trial court erred in the considering statements in determining whether a conspiracy existed, as such a finding was a prerequisite to determining the admissibility of the statements. (2) Rule: A court may, in determining whether a conspiracy existed, consider the out-of-court statements which themselves are the subject of the inquiry into admissibility. IX. IMPEACHMENT A. NONSPECIFIC IMPEACHMENT 1. Bias and motivation 2. Sensory and mental capacity 3. Character for ―truth and veracity‖ a. Cross-examine the target witness about non-conviction misconduct – FRE 608(b) b. Cross-examine about prior conviction – FRE 609 c. Testimony by a character witness that the target witness is untruthful B. SPECIFIC IMPEACHMENT 1. Showing that the witness had made a prior inconsistent statement 2. Contradicting the witness C. GENERAL 1. FRE 607—any witnesses (even your own) may be impeached a. Problem: Can you call a ―turncoat‖ witness for the purpose of impeaching to introduce a prior inconsistent statement? (otherwise inadmissible as hearsay under 801(d)(1)(A)) (1) Limiting instruction may be used (2) Rule 403 balancing could apply 2. Terms a. Extrinsic evidence—evidence admitted through one witness to impeach another b. Collateral matter—extrinsic evidence is not always admissible (?) 3. Foundation requirement—cross-examiner must question the witness about the impeaching matter before admitting extrinsic evidence through another witness 4. Prohibition on Bolstering—witness‘ credibility may not be bolstered with evidence relevant only for that purpose until after impeachment a. FRE 608(a)(2): evidence of witness‘ character for truthfulness not admissible in absence of attack on character b. FRE 801(d)(1)(B): prior consistent statements inadmissible until witness‘ credibility has been attacked (except in case of rape) D. BIAS AND MOTIVATION 1. No specific rule governs bias but a number reference it: a. FRE 402—admits relevant evidence unless excluded by another rule b. FRE 408—settlement offers inadmissible except to prove bias or prejudice of witness c. FRE 411—liability insurance inadmissible except to prove bias or prejudice d. FRE 801(d)(1)(B)—prior consistent statement inadmissible unless to rebut charge of fabrication or improper influence/motive 2. FRE 403 controls whether extrinsic evidence to impeach is permitted. 3. Bias - United States v. Abel (1984) a. Evidence of bias offered for impeachment of a witness is admissible if it makes a fact to which the witness has testified more or less probable. b. Court admitted evidence that a witness was a member of a prison gang that required its members to commit perjury. 4. Expert Witness Bias – Problem 8-A – ― The Hired Gun‖ a. Expert witness has been paid to provide testimony favorable to defendant in a products liability case. Defense introduces testimony as to amount of compensation. Plaintiff then attempts to solicit testimony on cross as to how much witness will be paid in other types of cases and other related information. b. Where does the court draw the line? (1) FRE 403 – waste of time E. SENSORY AND MENTAL CAPACITY 1. Physical defects may be relevant to impeach sensory perception (identifying the witness, what color was the light, etc.) 2. Mental condition may be relevant to credibility depending on condition. 3. Extrinsic evidence of sensory capacity not likely necessary (these issues can be brought out during cross) but FRE 403 governs whether it is admissible. F. UNTRUTHFUL CHARACTER 1. Non-conviction Misconduct – FRE 608 a. FRE 404(a)(3) permits introduction of character evidence of a witness as provided in rules 607, 608, 609 b. FRE 608(a) - The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation (i) May refer only to character for truthfulness or untruthfulness (ii) Truthfulness only after attack c. FRE 608(b)—specific instances admitted to show untruthful character can be brought out on cross but not proved by extrinsic evidence (even if witness denies the incident on cross) (1) Specific instances of conduct of a witness for the purpose of attacking or supporting the witness character for truthfulness may not be proved by extrinsic evidence (i) Bound by answer (ii) Judge‘s discretion d. Threatening Witness - United States v. Manske (1999) (1) FRE 608(b) permits specific conduct regardless of conviction (2) FRE 608(b) permits evidence of ―conduct infringing upon the rights of others for personal gain.‖ (i) Evidence that a witness attempted to threaten a co-defendant to compel favorable testimony is admissible as demonstration of untruthfulness. (3) FRE 403 balancing still required (4) good faith basis-in-fact requirement (5) privilege against self-incrimination still applies 2. Prior Convictions for Impeachment - FRE 609(a) a. Prior Convictions: can be admitted to show untruthful character if (1) felony conviction of witness other than accused or (2) crime of dishonesty or false statement by any witness (3) within the previous ten years b. Discretionary Factors - FRE 609(a)(1) (1) nature of crime, (2) remoteness, (3) similarity of crimes, (4) centrality of credibility at trial—P bears burden to show probative value outweighs prejudicial impact c. Non-discretionary Factors - FRE 609(a)(2) (1) perjury, (2) false statement, (3) criminal fraud, (4) embezzlement, (5) false pretenses d. Inquiry into Facts of Conviction - US v. Lipscomb (1983) (1) In determining whether or not to admit evidence of a prior felony conviction, the trial court has discretion to inquire into record to establish facts which weigh on the probative or prejudicial value of the evidence. (2) Some courts allow inquiry into specific facts of record to bring a prior conviction within 609(a)(2). e. Preserving the Issue - Luce v. United States (1984) (1) Defendant did not testify at trial after in limine ruling that prior conviction was admissible (2) The defendant must testify at trial in order to preserve issue of improper impeachment by prior conviction on appeal. (3) The reviewing court must weigh the probative versus prejudicial value based on the record. f. LIMITATIONS: (1) FRE 105—Limiting instruction required upon request (2) FRE 609(b)— ten year limit (3) FRE 609(c)—pardon & annulment (4) FRE 609(d)—juvenile convictions not admissible to show untruthfulness (but may be for other purposes) g. METHOD OF PROOF: (1) elicited on cross—rule does not specify whether witness may explain however this may be seen as ―opening the door‖ to rebuttal evidence including cross-ex on the details of the crime. (2) record of conviction may be introduced under hearsay exception 803(21) or public record 803(8). Record would be self-authenticating under 902 and certified copies satisfy BER (1005). h. Prior Convictions also may be admissible as (1) proof of bias (favorable treatment in exchange for testimony) (2) FRE 404(b)—―other acts‖ (3) element of subsequent offense offered as substantive, not impeachment, evidence (i.e., Old Chief) 3. Character Witnesses—if a character witness testifies pursuant to 609(a) about another witness‘ truthful character, the character witness may be asked on cross about specific instances of conduct on the part of principal witness (analogous to 405(a)) G. SPECIFIC IMPEACHMENT 1. Prior Inconsistent Statements for Impeachment — FRE 613 a. Inconsistency (1) Prior omission of material fact (2) Statements indicating prior lack of knowledge (3) Claim of lack of memory (where claim is contrived) b. Extrinsic evidence of prior inconsistent statements may be introduced if: (1) the witness has the opportunity to respond to the evidence (foundation) (2) opposite party can interrogate witness (3) does not apply to admission by party opponent c. Otherwise Inadmissible Evidence - United States v. Webster (1984) (1) Impeachment by prior inconsistent statement is impermissible if used to get otherwise admissible evidence before the jury d. EXCEPTIONS: (1) FRE 801(d)(2)—does not apply to admission of party opponent (2) Prior Inconsistent Conduct—not governed by 613; admissible for impeachment and also admissible substantively as implied admission. (3) FRE 801(d)(1)(A)—hearsay exception for prior inconsistent statements taken under oath 2. SPECIFIC CONTRADICTION a. One witness may directly contradict testimony of another witness and testimony is admissible regardless of absence of direct impeachment b. FRE 403 governs to determine admissibility of witness; concern for witnesses whose only purpose is to contradict testimony on ―collateral matter‖ (not central issue) c. Entails a showing that something a witness said in his testimony is not so. (1) Counterproof (i) Undermines credibility (ii) Involves a substantial point (iii) Bias (iv) Hones in on witness deception on a key point (2) Before you can admit something it must have dual relevancy: (i) A tendency to illuminate a substantive issue: admit (ii) Tendency to illuminate a credibility issue: admit (iii) Just Contradict and it's collateral: Exclude d. Problem 8-G: That's Just Collateral, Your Honor (1) Guy charged with robbery says that he has an allibi because he was in a certain restaurant in Portland all the time. (Crime occurred July 14th). (2) The Prosecution counters that this is untrue because the D has been in Seattle in June 2728. The Defense argues that this is merely collateral. He was in Seattle two weeks before the crime-- it's a matter of whether him being there two weeks before the case 'moves us' in any way. Is it just contradictory or is it more than that? (i) The fact that the guy was in Seattle on June 27th is hardly directly relevant (ii) But, since he said he was there 'all the time' and was never not there for a period of 3-4 days, that is more relevant in that it goes towards a substantial point (he wasn't ALWAYS at the restaurant) and second, it goes to credibility. (iii) It's not overwhelming, but in the scheme of things it might get let in. (3) The second witness, a waiter says that he 'never laid eyes' on the Guy who was supposedly always at the restaurant. (i) As the Defense, you would want to highlight when he worked, etc. You would need to tie certain things down before you could come in and attack his testimony. (ii) If he says he was there on the 14th of July and never saw him at the restaurant, That could be more than collateral. It goes to the Defendant's credibility and also to the facts (i.e. where he was on the day of the incident in question.) e. United States v. Havens (1) Two attorneys returning from Peru via Miami. One caught with cocaine. He indicates that the other guys was involved. The coke is found in a homemade t-shirt that had sewn in pockets. (2) In the other guys luggage, they find a t-shirt with sections of fabric missing from it that match the shape of the pockets sewn in to the drug-carrying shirt. (3) The search this luggage without a warrant. (i) The second guy is on trial. He acknowledges the other guys testimony regarding the cocaine, but says that he did not participate in 'the activity in question.' We have this on direct examination. (ii) Held: We cannot accept respondent's suggestions that because eof the illegal search and seizure, the Government's questions about the T-shirt were improper cross-exaination. (iii) The purpose of using the illegal evidence is to impeach the witness. It only goes to the credibility of the witness. (4) If its part of a "proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt." H. REPAIRING CREDIBILITY 1. Who can Impeach a. FRE 607 - credibility of a witness may be attacked by any party b. including the party calling the witness c. vouching 2. Evidence of Good Character – United States v. Medical Therapy Sciences a. FRE 608(a) – 3. Prior Consistent Statements – Problem 8-I – ―She handed me the Heroin‖ a. Facts: Case involves a heroin transaction involving two women. Both women testify that Clair handed the heroin to the UC officer, but the officer testifies that although Clair initiated the transaction, Arla handed it to him. Defense accuses him of fabricating evidence in order to implicate both women in the transaction. b. Analysis: (1) Is this hearsay? (i) No – FRE 801(b)(1)(b) (2) What are the two ways we can get this in? (i) Prior consistent statement by police officer refutes defense claim that current testimony is not a fabrication – could come in substantively – 801(b)(1)(b) (ii) Could come in just for impeachment purposes if the attack is bad memory – for the limited purpose of showing that the statement is consistent with prior memory and therefore the witness is credible 4. Religious Belief a. FRE 610—religious beliefs are not admissible to support or impeach witness credibility b. does not prohibit introduction to show bias or for other purpose X. METHODS OF IMPEACHMENT i. Cross-Examination XII. YES XV. YES Extrinsic Evidence XI. BIAS/ INTEREST XIV. SENSORY CAPACITY XVII. UNTRUTHFUL CHARACTER XVIII. Reputation—608(a) XIX. Opinion—608(a) XX. Prior Conviction—609 XXI. Prior Acts—608(b) XXXII. PRIOR INCONSISTENT STATEMENT XXXV. SPECIFIC CONTRADICTION XXII. XXIII. n/a XXIV. n/a XXV. YES XXVI. YES XXXIII. XXXVI. YES n/a XIII. YES with foundation & 403 XVI. YES with 403 XXVII. XXVIII. YES character witness XXIX. YES character witness XXX. YES record of conviction XXXI. NO XXXIV. YES with XXXVII. foundation & 403 YES with 403 (not collateral matter) A. Harris v. U.S., 1971 1. The government wants to use a pre-Miranda rights statement to impeach Harris after he testified that he didn't sell heroine, he only sold baking soda. 2. Rule: You can use statements made before Miranda rights were issued for impeachment purposes. 3. The theory is that every criminal defendant is privileged to testify in his own defense or to refuse to do so. 4. If he has made contradictory statements, then the prosecution has the right to present to the jury evidence of that. a. If a statement were not truly voluntary in a physical sense, then it would likely not be admissible. b. Sidenote: In administrative law, they basically do a cost-benefit analysis in terms of deciding whether or not the government can use evidence that was the 'fruit' of a poisonous tree. (1) This is controversial, but it's thought that they are sufficiently punished by not being able to use it in a criminal trial. XXXVIII. OPINION AND EXPERT TESTIMONY A. LAY WITNESSES 1. Firsthand Knowledge Rule—FRE 602 a. A witness may only testify about subjects with which he has firsthand knowledge (though not limited to knowledge at time of event current knowledge is OK) b. Firsthand knowledge may be established by witness‘ testimony or be inferred from testimony (602 committee notes) 2. Opinion Rule—FRE 701 a. Rule of preference for testimony of primary sensory impressions over opinions, conclusions or inferences drawn from those impressions. b. Lay opinion admissible if: (1) Rationally based on the perception of the witness (2) Helpful to clear understanding of testimony or determination of fact (3) Not based on scientific or specialized knowledge c. Witness Perceptions - Problem 9-A – ―It Was My Impression‖ (1) Law witness testifies that although defendant never admitted to the bombing, it was her impression based on other statements that he did in fact do it (i) Her perception is more intuition than logic, and therefore probably not admissible – not rationally based (ii) If further facts are developed, probably come in as based on perception drawn from facts d. Witness Opinions - Problem 9B – ―The Watchful Neighbor‖ (1) Hanson is a proper lay witness because he witnessed the accident. (2) Odor of pot (i) First must associate pot with marijuana (ii) Must establish a foundation as to how he knew what the odor was (iii) Is this worth objecting to if further testimony will come later (3) Speed of vehicle (i) Comes in because there is just not other way to get it in (ii) Can‘t testify to what the law is regarding speed limit, but could testify as to posting of limit (4) Driver looked guilty (i) Can‘t testify as to why he looked guilty (5) Injuries and damage (i) Can‘t testify as to precise nature of injuries or that the car was totaled (6) Couldn‘t have stopped (i) Can‘t know whether it was possible to stop unless there is a sufficient factual basis (7) Hypothetical driver (i) Absolutely no relevant what a hypothetical driver might have been able to do 3. Overlap between lay and expert opinions a. both permitted to give opinions on handwriting – FRE 901(b)(2) b. both may testify on mental condition in insanity defense case c. one witness (e.g., a treating physician) may testify as to both fact and expert opinion B. EXPERT WITNESSES 1. Testimony by Experts – FRE 702 a. Requirements Scientific, technical, or other specialized knowledge That will assist the tirie of fact Qualified by knowledge, skill, experiences, training, or education Testify in the form of opinion or otherwise IF (i) Testimony is based on sufficient facts or data (ii) Product of reliable principles and methods (iii) Applied principles and methods reliably to facts b. Frye Approach—expert testimony must regard a scientific principle which is sufficiently established to have gained ―general acceptance‖ in the particular field in which it belongs. c. Daubert Approach—creates five factors when determining whether scientific evidence is admissible (1) Testability: should be empirically testable (2) Peer review & publication: to reveal flaws in methodology (3) Error rate: known or potential (4) Standards: existence and maintenance of standards controlling the technique‘s operation (5) General Acceptance: Frye test is still an element, just not the only one 2. Bases of Opinion – FRE 703 a. Three Categories of Data (1) Firsthand knowledge (2) Facts learned at or before hearing (3) Outside data (i) May rely on data of a type reasonably relied upon by similar experts (1) (2) (3) (4) XXXIX. A. ELEMENTS 1. Professional Relationship consulting an attorney for the purpose of obtaining legal advice or (ii) Expert may base testimony on facts or data that are otherwise inadmissible (though reasonably relied upon by experts in the field) but shall not be disclosed to the jury unless it is more probative than prejudicial. b. Steps for admission: (1) Lay a foundation (i) Call a witness and ask about education, experience and familiarity with the subject of the suit (ii) Suggest they be qualified as an expert (iii) Opposing counsel may voir dire c. Opinion based on Chart - Problem 9C – ―The Tube Came Out‖ (1) Could doctor have rendered an opinion? Yes (2) What was wrong with her testimony then? What is the issue here? (i) She is testifying as to someone else‘s opinion, not her own??? d. Opinion Based on Inadmissible Evidence – Problem 9D – ―.24 BAC‖ (1) Driver is arrested for DUI and blood test gets suppressed. Doctor is called to testify as to whether she was intoxicated (2) Doctor can testify to firsthand observations other than BAC (3) Doctor can testify as to BAC if probative value in evaluating the expert‘s opinion substantially outweighs prejudicial effect, but since the fruit of the poisonous tree precludes the BAC, that will likely not happen. ATTORNEY-CLIENT PRIVILEGE assistance a. United States v. Kovel (1961) [former tax agent working at a law firm invoked privilege regarding communication with clients on legal matters] (1) Attorney-client privilege extends to communications with non-lawyers for the purposes of legal advice. b. Corporate Client (1) Applies to communication between counsel and any employee who possesses information needed by counsel to render fully informed legal advice. (2) Upjohn Co. v. United States (1981) (i) Any confidential statement to counsel is protected - REJECTED (ii) No possible privilege – not a person - REJECTED (iii) Control group - REJECTED 1. only those people who are in authority enjoy the privilege (iv) Subject matter test 1. employees were directed by superiors to talk to legal counsel 2. information not routinely available to upper-level management is needed to comply with the law 3. matters were within the scope of the employees‘ corporate duties 4. employees know they were being questioned in order to obtain legal advice 5. matters were to be highly confidential and were kept so 2. Communication a. Nonverbal Acts may be included, but must be testimonial b. Communication from lawyer to client is not always protected unless it implicates something that the client told you. United States v. Silverman c. People v. Meredith (1981) [Δ told counsel where he threw the victim‘s wallet; counsel removed the wallet and turned it over to the police] B. C. D. E. (1) If counsel removes or alters evidence that was learned of through privileged communication, the privilege does not bar the court from compelling counsel to testify as to the original location and condition of the evidence. 3. Confidentiality a. Responsibility for maintaining confidentiality rests on the parties to the communication. b. Suburban Sew ‘N Sweep v. Swiss Bernia (1981) [πs went through Δs dumpster and collected letters to attorneys and used those letters as basis for discovery requests.] (1) Failure to take appropriate safeguards will not require the exclusion of evidence derived from confidential breech. LIMITS 1. Compulsory Process Clause 2. Disclosure to third party a. Limited by reasonable expectation of privacy (if someone eavesdrops privilege is protected) 3. Client Identity a. The identity of a client is not protected by privilege except where (1) the identity is sought during an investigation of the matter for which the attorney was retained; (2) disclosure would effectively result in the disclosure of otherwise protected communication. In re Grand Jury Investigation 832-35 (Durant) (1983) [grand jury subpoena to disclose name of client who had written a check that was drawn on an account with stolen funds] 4. Crime/Fraud Exception a. A client‘s discussion of plan to commit future illegal acts is not protected. b. Even where future plans have already been committed or were intended to conceal past criminal acts. State v. Phelps (1978) [former attorney testified about client‘s intent to commit perjury] 5. Hiding Evidence 6. Duration—extends past client‘s death and passes to agents WAIVER 1. The use of protected documents to refresh a witness‘ memory prior to testifying constitutes a waiver of the protection. James Julian v. Raytheon (1982) WORK PRODUCT DOCTRINE 1. Privilege can be overcome upon a showing of necessity and inability to procure the information elsewhere (substantial need and undue burden are not enough). Upjohn v. United States (1981) CONSTITUTIONAL ISSUES 1. 5th Amendment Privilege a. Fisher v. United States (1976): Fisher‘s documents compiled by his accountant were transferred to his attorney and the government sought to compel the production of those documents; The Court asserts the CONTENT of the documents is not protected because it is voluntarily produced but the actual ACT OF PRODUCTION can be seen as testimonial; lawyer could invoke the privilege not because of his own privilege (5th amend) but because attorney client privilege allows him to invoke his client‘s 5th amendment privilege (lawyer can invoke any right the client could invoke if the documents were in his possession); but here the Δ cannot assert 5th amendment right because he didn‘t prepare the dox so the act of production doesn‘t testify to its authenticity b. United States v. Hubbell (2000): Suspect was compelled to produce 13,120 pages of documents and he was granted immunity but then prosecuted in relation to that information; the constitutional privilege applied to the testimonial aspect of a response to a subpoena, seeking discovery of the sources of potentially incriminating evidence and Δ act of production had a testimonial aspect that entitled him to assert his self-incrimination privilege. Since govt did not show any prior knowledge of the documents Δ produced those documents could not have provided the basis for respondent‘s indictment; must have some specific prior knowledge in order for its prosecution to be wholly independent of the Δ‘s testimony 2. Compulsory Process—6th Amendment includes right to offer testimony of a witness and compel attendance, right to present a defense 3. Due Process—5th Amendment 4. Exclusionary Rule—there is no corollary exclusionary rule for evidence obtained in violation of the attorney-client privilege Big Picture Overview Constitution trumps evidence rules. Confrontation clause, due process The rules are to promote truth and fairness (403 balancing). (Sometimes this isn’t allowed 609b) Don’t misuse the rules, use each for intended purpose Be familiar with all of the rules – issue spotting What methodology for studying? Read the rules for context Then hone in on what rule applies, focus Then hone in w/ combo of the phrase that pays – what are we quibbling about. In any answer give the rule and why it applies. HEARSAY – the heart of reliability. Analysis below: Is it hearsay? IF it is hearsay, then look to which category you can fit into to get it in. Are there exceptions? What is the call of the question? Address the question. Be familiar with unique relevancy rules. Impeachment – Bias = always relevant Character evident (propensity not allowed usually (never civil, sometimes crim)) Witnesses – character and conduct witnesses Can be done with conviction of a crime – 609 felonies and 609(2) Presumptions – know the zones. The burden of persuasion never shifts (?) Authentication – sufficient evidence to support that the matter in question is what it purports to be Condition, chain of custody Best evidence rule Duplicates, other contents. Lost or destroyed. What distinguishes good papers? --> you can nail a question or you can answer it in a pedestrian fashion. Issue spotting is key. Then, application is key. Give him the brainstorming. Substantive review Telephone convos – 901, 902. authentication doesn’t cover this very well. Voice identification and personal knowledge. Contents – code terms, distinctive names, circumstantial evid. Handwriting – 901b2, familiar w/ handwriting and can identify = good enough. Photograph – true and accurate depiction Best evidence rule – fact that it deal w/ contents of a writing. Does it smell like a writing. How would you judge it. This is the most common way the rule is misused. Need to know how to trump this problem immediately. Criminal defendant wants to produce testimony of codefendant – 5th amendment invoked. Wants to read into record the guilty plea. What is the issue here? Hearsay. 804. must be unavailable or privilege. I think he’s unavailable. Now what category are we in. we’re in b1. whats the problem w/ b1? Testimony. Does testimony = what happens in a guilty plea allocution. Probably can’t come in under 804b1. we are nowhere near 801 statement of coconspirator (need to be made in furtherance and at time of conspiracy). Competence of a jury to testify under rule 606. No one has seen a person for 7 years. Call to question is D entitled to directed verdict? 301. burden of persuasion v production. Brings to mind the zones. How do you prove a defamation case? Verbal act. 404 and 405, methods of proving character… not going to use 404b bc not modus operandi or something like that. Zap problem. Relevancy is the question here. Question 13.