Flusche 1 of 13 Evidence – Outline I. Relevancy (2) A. Materiality & Logical Relevancy – 401, relevant EE makes goal ↑↓ probable – 402, relevant EE admissible B. Prejudice & Probativeness – 403, rele. EE may be excluded if PV PV i. Ex: D offers to stipulate that he was convicted of felony, instead of prosecution introducing document of conviction – prosecution must accept it: not losing rich tapestry of story, conviction is similar to current charge (Old Chief, p. 66) c. In favor of stipulation: legal status, another story, etc C. Circumstantial Proof 1. Flight a. Many innocent explanations, but under 401 just need to show that guilt is one rational inference b. CL rule – flight admissible as EE of guilt c. Inferences = D’s actions  flight  consciousness of guilt  consciousness of guilt for crime charged  actual guilt for crime charged d. Steps 1 and 2 hardest to prove e. Ex: D told by co-conspirator that he was about to implicate D, D later found in FL under assumed name – admissible (Dillon, s p. 24) f. Ex: ct wrong in thinking that need to eliminate all rational inferences (Myers, p. 48) 2. Silence a. Difficult to be EE of guilt b. Const. right to remain silent recognizes and confirms CL rule c. But outside criminal setting, we allow inference to be drawn d. Ex: man waiting 2 weeks to confess to self-defense killing admissible, since D chose to take the stand (Jenkins, s p. 47) Flusche 3 of 13 D. Conditional Relevance 1. Application – piece of EE is only relevant IF some other fact is also true 2. Ex: D’s motive for killing L only relevant if D knew that L was going to press charges against D’s friend (Cox, p. 32) III. Character, Propensity, and Prior Act Evidence A. Default Principle of Nonadmissibility 1. 404 a. A – EE of character / traits NOT admissible to show action in conformity therewith (civil and criminal) b. B – prior act EE similarly banned if offered for purposes similar to A i. But may be admissible for non-propensity purposes ii. Congress is doing the 403 balancing – DUP always outweighs PV in these cases 2. Non-propensity examples: a. Motive / opportunity b. Intent c. Preparation / plan d. Knowledge / notice – D previously convicted of picking safes (i.e. has special skill) e. Identity – past convictions could establish MO that is specific and unique to this D (Danzey, s p. 29) f. Absence of mistake / accident 3. Non-propensity uses are NOT EXCEPTIONS to 404, they are places where 404 does NOT APPLY 4. Ex: Z’s wife insulted on street, Z goes inside and comes back out w/ gun, shoots guy – EE of 3 pistols and tear-gas gun in Z’s apt inadmissible (Zackowitz, p. 126) a. But Cardozo doesn’t address dissent’s argument: might be relevant to prove momentary deliberation B. Non-Propensity Uses of Character and Prior Act EE 1. Absence of Mistake or Accident a. Brides in the Bath – man has 3 brides die by drowning in tub, right after executing will b. D claims accidentally shot wife while cleaning gun, but previously killed 1 st wife when cleaning gun 2. Conditional Relevance a. Standard of proof to establish prior act – governed by 104(b) – judge must find that jury could find, by preponderance of EE, that prior act took place b. Ex: D charged w/ possessing & selling stolen goods, prosecution has EE that D sold cut-rate stuff from same supplier (Huddleston, p. 175) c. Could be prior act for which D was acquitted, since admissibility standard < beyond reasonable doubt (Dowling, s p. 31) C. Putting Character in Issue (genuine EXCEPTIONS to 404) 1. Criminal Cases a. 404(a)(1) i. Enables D, almost wholly at his option, to put on EE of character for a pertinent trait ii. Works to advantage of D w/ good reputation iii. How does D show character? (ranked in order of highest PV) (a) Offering up specific past actions not in conformity w/ alleged crime (b) Put on character W that testifies as to familiarity w/ D and own opinion as to character trait of D (c) Reputation W testifies as to D’s reputation in the community (what he has heard people say) iv. Pre-FRE, didn’t allow proof of character by prior act EE (Michelson, p. 208) v. D doesn’t have to take the stand, but can still put character into play (flipside: D can take stand, but doesn’t put character into play) b. 405 i. Makes it clear that if D puts character into play, prosecutor can respond in kind ii. Last sentence of 405(a) (a) Inquiry allowed into specific instances of conduct (b) Limited permissibility (c) Can ask character W about specific prior instances of D’s behavior that bears on his character Flusche 4 of 13 (1) Proves / disproves W’s knowledge about D (2) Inquiry stops where character W says yes/no (no opportunity to put on ext EE) (3) Good faith limitation to the questions (judge calls counsel to sidebar, if questionable) c. Victim’s Character i. D has option to put on character of V, in connection w/ pertinent trait (ex: show V’s violent character to infer that V attacked first) ii. Prosecution can respond: (a) C-X D’s character W regarding V (b) Put on own W regarding V’s good character (c) Open door to D’s own similar character trait 2. Civil Cases a. 404(a) – applies here also b. Ex: EE of P’s violent reputation admissible, for D’s theory that P was first aggressor (Circuit split, Perrin, p. 224) c. Ex: defamation action, D offers EE that P was convicted of sex offenses – ok, since doesn’t fall under 404(a) – trying to prove D’s truthfulness d. Most courts permit exceptions only in CRIMINAL cases (SEC, p. 227) D. Habit (vs. Character) 1. 406 – specifically permits EE of habit to prove conduct of a person conformed w/ habit 2. But what is a “habit”? – not too broad 3. Habit = “one’s regular response to a repeated, specific situation” (Reyes, s p. 36) 4. This is propensity EE, but it is SO GOOD that we need a rule to let it in 5. Admissible in criminal and civil cases 6. Can be sufficient for jury to find particular fact in Q, even if no other EE 7. Ex: product liability, EE that mechanic used immersion coil to heat Freon can – ok (Halloran, p. 231) a. But this isn’t much beyond prior act EE b. If P testified that he never used immersion coil, D’s W could rebut that testimony c. Might be that P put on EE of habit (I always use warm bucket of water) – D’s W could show that P didn’t always conform to habit E. Character for Credibility 1. Background a. One kind of EE to get jury to disbelieve W – permits showing W’s propensity to tell truth / lie i. Other ways: bias, perception / memory / communication, contradictory W b. Applies for every W in civil and criminal case c. 608 – character for credibility / truthfulness of W i. Attack W’s credibility via CCW – tell his own opinion of W’s character for truthfulness OR reputation in community ii. C-X W regarding prior untruthful acts of his – no proof of specific acts, except 609 convictions d. EE of truthful character only admissible after attack 2. Use of Past Convictions a. 609 – if < 10 years ago i. A(1) – felony convictions = crime punishable by death or > 1 year ii. A(2) – convictions for “false statement” crimes – virtually automatically admissible b. If conviction ~ to current charge, huge DUP – balance under 403 c. Proponent of introducing conviction has burden of showing PV > DUP d. Balancing factors to consider (all prior convictions, except kidnapping, admitted against D who takes the stand – Bower, p. 255) i. Nature of crime ii. Time of conviction & witness’ subsequent history iii. Similarity btw past crime and charged crime iv. Importance of D’s testimony Flusche 5 of 13 v. Centrality of credibility issue e. When does 10 year clock start? – conviction OR release from confinement? f. If > 10 years old, PV must be really high g. Spectrum of admissibility i. Automatic admissibility – 609(a)(2) convictions ii. Greatly tilted in favor of admissibility – 403; 609(a)(1) vs. non criminal D iii. Mildly tilted against admissibility – 609(a)(1) vs. criminal D iv. Greatly tilted against admissibility – any conviction > 10 years old 3. Rehabilitation a. Put on good CCW b. But can only put on good CCW after W has been attacked under 608 or 609 c. D can’t open door to good CC, but can open door to character for pertinent trait (404, 405) d. Pertinent character trait might be honesty (ex: perjury case) F. Extrinsic EE to Prove Character and Credibility 1. Ext EE = proof of something apart from answer of W 2. Collateral matter = less than central to litigation 3. Ordinarily, NOT allowed – unless in form of 609 conviction 4. But if not trying to prove character for credibility (e.g. proving bias), ext EE can be used a. Ex: ext EE that W is in prison gang w/ D admissible, goes to bias of W (Abel, s p. 38) 5. Governed by 401, 403 G. Bias (vs. Character for Credibility) 1. EE of W’s bias is not barred by the rules 2. If it is relevant (under 401), and meets basic hurdles, it can come in (Abel) H. Rape Shield Laws 1. CL Approach a. Typical rape defense = consent b. Criminal Ds would put on EE of V’s past sexual history to show: V’s “loose” character” or that she consented before c. EE of chastity and promiscuity is admissible, even specific act EE (Abbot, p. 286) d. Could use EE of sexual history as bearing on victim W’s character for credibility (Sibley, p. 288) 2. Exclusionary Approach a. 412 – applies to any proceeding alleging “sexual misconduct” i. A(1) – ban on specific act EE (other sexual behavior) ii. A(2) – ban on reputation or opinion EE iii. Exceptions – B(1) (a) B– EE of specific acts w/ the D (b) A– EE of specific acts to prove that someone other than D is source of semen, or other physical EE (usually comes in when D claims it wasn’t him) (c) C – EE which would violate Const. rights of D, if excluded (1) Ex: D wants to show that V in sex relationship w/ X, and she lied about rape to protect it (2) Ex: D has Const. right to put on C-X W about sex relationship w/ Z – goes to motive to lie (Olden, p. 307) b. Why do we need 412 under FRE? i. 404 bars character EE generally, and specific act EE is admissible only for non-propensity purposes ii. But 404 allows criminal D to put on EE of pertinent character trait of V (ex: consent in case of rape) iii. Fed courts could develop relevancy rules less sympathetic to this EE – still have 403 safety net iv. Largely symbolic value c. Applies to both civil and criminal cases d. Civil setting i. Starts off w/ bar ii. Exception – 412(b)(2) – other sex act EE can be admissible for relevant purpose otherwise allowed Flusche 6 of 13 iii. Don’t really need this – character of V EE not permitted anyway – only at option of D iv. Don’t need barrier to keep out EE of V’s character v. Don’t need exception to allow in non-propensity EE vi. BUT ordinary 403 balance isn’t applicable – higher standard I. Propensity: Sexual Assault 1. Rules 413-15 a. Largely un-adopted by states b. Affirmatively allow proof of D’s prior acts of child molestation (in those cases) and sexual assault (in those cases) – criminal and civil c. Invert the rule against admissibility of prior act and propensity EE d. Statistics don’t suggest a strong EE basis for allowing this EE in e. No requirement that past act be a conviction – just a “past occurrence” – but can’t use settlement as proof of underlying liability f. No requirement of similarity g. D need not open the door h. No time limit for how old prior acts must be i. For civil, no provision for D to put on good character EE 2. Now, largely open season on D – 180 degree switch from CL IV. Witnesses, Personal Knowledge, and the Purposes of Examination A. Used to be a huge issue – various people couldn’t testify: parties, felons, spouses, family members, atheists B. Now, few categorical examples of Ws who are incompetent C. Jury’s role has expanded largely – they are the lie detector D. 601 – everyone is competent, except as otherwise provided E. 603 – W must exhibit ability to understand oath F. 602 – W must have personal knowledge of the events about which they testify G. Generally, only experts allowed to give their opinion H. When fed ct sits in diversity, 601 says that state competency rules apply V. Hearsay Rule and its Exceptions A. Rule Against Hearsay 1. Four inferential leaps from statement to true fact: perception, memory, narration, sincerity 2. Problem – reliability, not relevance – twice the number of inferential steps & original 4 steps harder to test 3. 801 – hearsay = OCS offered to prove TMA a. OCS = anything not made by this W in this court proceeding b. TMA – where trying to prove that statement itself is true 4. Not hearsay if NOT trying to prove TMA a. Ex: D found w/ ammo, charged w/ fighting against country, claims terrorists threatened him – ok, since goes to duress, i.e. D’s state of mind, not whether terrorists were truthful (Subramanian, s p. 47) b. Ex: sheriff testifying that husband uttered “I’m alive” not hearsay, since the mere fact of him speaking proves the point, i.e. he survived his wife (Murdock, s p. 46) 5. Doesn’t have to be an oral statement, can be a writing as well 6. If danger that W’s in ct statement might be used for HS purposes by jury, use limiting instruction 7. Speaker’s state of mind – NOT hearsay a. Ex: W allowed to testify that guy said “I’m Jefferson” – ok, EE that he believes he’s TJ 8. Conduct a. To the extent conduct is intended to assert something, it is the same as a statement (nod = “yes”) b. Assertive conduct can be treated as hearsay c. Maybe even more ambiguous when it is conduct – “hearsay w/ a vengeance” d. CL, and a couple states – conduct that is not intended as assertion could be hearsay 9. Multiple-step hearsay can be admitted, if you can overcome each hearsay link in the chain 10. Independent legal significance != hearsay (ex: nuptial vows, donative words, offer/acceptance) B. Rules Not Barring Hearsay Flusche 7 of 13 1. Statements of a Party Opponent a. 801(d)(2) – prior statements of party opponent NOT hearsay i. A – party’s own statement ii. B – statement which party has manifested an adoption or belief in its truth iii. C – statement by person authorized by party to make it iv. D – statement by party’s agent concerning matter w/in agency v. E – statement of coconspirator of party during conspiracy & in furtherance thereof vi. Contents of stmt considered, but not sufficient to establish declarant’s authority under C, D, E b. Virtually anything party has said or done is admissible against them (as far as hearsay goes) c. Qualities of party admissions i. Reliability – why would someone say something against their interest, if it’s not true? (a) But it doesn’t have to be against their interest at the time it was made ii. Can be used as substantive EE and for impeachment iii. Party does NOT have to take the stand for statement to be introduced iv. Party’s own statement, if offered by him – NOT allowed v. “Binding” quality of party admissions – you’re stuck w/ it, but it’s only a piece of EE (a) Formal admission – admitting something in pleadings (b) Judicial admission – party said or did something OR party made statement in pleading & later retracts vi. No requirement of personal knowledge (a) Ex: employee said that wolf bit kid, but didn’t see it happen – admissible (Wild Canid, p. 369) d. Theory: party is in ct and can explain it away; all’s fair in love and war e. Vicarious Liability – C and D – authorized person OR agent i. Agent’s statement admissible if during agency relationship & about matter w/in scope of agency ii. C seems superfluous – difficult to imagine any C example that isn’t w/ D iii. Dilemma – could be dispute about whether agency existed (a) Judge decides if person is agent, for EE admission – but jury decides for final liability (b) Solution: judge makes preliminary determination of agency & shouldn’t tell jury what he did 2. Co-Conspirator Statements a. Same problem as agency dispute – does conspiracy exist? i. Determination of admissibility is made outside presence of jury ii. Judge may rely on the statement itself in determining if conspiracy / agency exists iii. In determining if conspiracy exists, judge may consider otherwise inadmissible EE (a) 104(a) determinations aren’t subject to FRE iv. Decision made by preponderance of EE v. This isn’t like 104(b) – judge DECIDES b. Oftentimes, if contradiction arises, it will be no harm / no foul c. Ex: govt. established by preponderance of EE that conspiracy existed & statements made in furtherance of conspiracy (Bourjaily, p. 375) 3. Prior Statements a. 801(d)(1) – prior statements of Ws admitted for their truth (exclusions from definition of hearsay) i. If W subject to C-X now regarding prior statement AND ii. A – inconsistent (+ under oath then, at a trial / hearing / etc) (a) Probably not “inconsistent” by saying “I don’t remember” – but possible that W is faking it iii. B – consistent (but only to rebut charge of recent fabrication) iv. C – “prior I.D.” b. Theory i. Originally, all prior statements of Ws could be admitted for their truth (some states still do) ii. Concern that jury might over-weigh OCS – but shouldn’t they be allowed to decide which is true? iii. Result = political compromise iv. Mob cases – someone would spill beans before grand jury, then contradict himself at trial Flusche 8 of 13 v. Rule now fits grand jury testimony perfectly – W must be subject to C-X now c. Danger that attorneys might try end-run around FRE and get in otherwise inadmissible EE i. Ince, p. 393 – W testifies that she didn’t hear D confess, judge admits MP’s testimony (that W said she heard D confess) to impeach W – improper impeachment (a) Approaches on 403 grounds (DUP v. PV) – EE of D confessing is high DUP ii. Whitehurst, s p. 49 – P puts on cop 1 who says that he didn’t fire V’s gun, then wants to call cop 2 who will testify that cop 1 told him that he fired the gun – improper (a) Cop 2’s testimony (cop 1 told me that he fired the gun) = rank hearsay (b) Attorneys trying to waft it front of jury as “impeachment” d. Prior Identifications – 801(d)(1)(C) i. Officer could testify about line-up, and what W did – doesn’t matter that not under oath, at hearing ii. Why: earlier in time, intimidation problems, party’s looks can change, memory of faces fades quick iii. Prior identification can come in, regardless of what W says on stand iv. BUT declarant must be a W at this trial, and subject to C-X v. Subject to C-X = on stand, under oath, willingly answering questions (a) Ex: man beaten, memory loss, but ID’s D in hospital; at trial, W can’t recall beating or ID – ok to admit prior ID (Owens, p. 417) (b) It is devastating C-X if W can’t remember prior ID e. Inconsistent – 801(d)(1)(A) i. Political compromise to allow in grand jury testimony (mob indictments) ii. Ex: V tells police “my husband beat me up” – at trial, victim changes story – inadmissible iii. BUT, prior testimony comes in, no problem f. Consistent – 801(d)(1)(B) i. If W says “X” on the stand, doesn’t add much that he said the same thing before ii. CAN add something, if offered after EE introduced suggesting W’s testimony is recent fabrication (a) (Prior consistent statements of child inadmissible, since made after point of alleged fabrication – Tome, p. 406) 4. EXCEPTIONS to HEARSAY a. Congress has determined that these ARE hearsay, but still admissible b. They turn out to be “pretty good hearsay” c. Often a particularized need for the hearsay we’re looking at d. 804 – requires UNVAILABILITY – 2nd best testimony 5. Former Testimony – 804(b)(1) a. Rule: i. Unavailability of W (804(a)) ii. Offered now vs. party who was party then (a) Criminal – vs. same party (b) Civil – vs. same party OR “predecessor in interest” iii. Party had opportunity & similar motive to develop W’s testimony then as now iv. [W under oath then implicit in “testimony,” “trial,” “hearing”] b. If party’s former testimony, can come in as stmt against interest (excluded from HS) c. Not all former “testimony” is included here – ex: grand jury – not always covered under 804(b)(1) i. One-sided affair – prosecutor & Ws – D didn’t have opportunity to develop testimony ii. W is available, so doesn’t fall under 804 iii. Could be covered – offered against pros. – W testifies favorably w/ respect to now-D at grand jury; W no longer available; D wants to use W’s grand jury testimony (a) But govt.’s motive & opportunity – grand jury is tentative, investigatory (b) Ex: DiNapoli, p. 423 – pros. Has informant & further question of Ws might reveal him; had plenty EE to indict, didn’t have to prove guilt d. Rule not necessarily affected, simply b/c one proceeding civil & one criminal e. Motive & incentive to vigorously c-x adverse W is very high Flusche 9 of 13 f. More motive in criminal case to c-x W vigorously g. Ex: Lloyd, p. 428 – “predecessor in interest” includes prior Coast Guard investigation – WRONG – equates “predecessor in interest” w/ “motive & opportunity” h. What does “motive & opportunity” mean? i. Kind of relationship that particular party might have w/ someone else ii. Were Q one of preclusion, the party might be bound by litigation choice of someone else 6. Statements Against Interest – 804(b)(3) a. Rule: i. Statement which was: (a) So far contrary to declarant’s proprietary interest (b) So far tended to subject declarant to civil / criminal liability (c) To render invalid a claim by declarant against another ii. That a reasonable person in declarant’s position wouldn’t have made it, unless believing it to be true iii. -Statement tending to expose declarant to criminal liability, which is offered to exculpate accused NOT admissible unless corroborating circumstances indicate trustworthiness b. Theory – so far against speaker’s interest that reasonable person wouldn’t have said if, if it wasn’t true c. Differences btw party admissions & stmt against interest i. Stmt against interest almost always used in connection w/ statements of non-parties ii. Stmt of declarant must have been against interest at time it was made iii. For stmt against interest, out-of-ct declarant must be unavailable d. Stingier in criminal setting: D might manufacture 3rd party confession, relatively easy to get 3rd party to confess & disappear, jury might give ↑ weight to 3rd party confession e. If stmt only partly against declarant’s interest – exception applies to specific parts that are selfinculpatory (Williamson, p. 434) 7. Dying Declarations – 804(b)(2) a. Rule: i. Civil case OR homicide case ii. Hopelessness w/ respect to pending & imminent death iii. Concerning cause or circumstances of one’s death b. Theory – credibility concerns lower, person probably has personal knowledge of cause of death, might be the only W to the act c. Don’t have to die for declaration to come in – just has to be stmt about cause/circumstances of immediate, impending death d. W does have to be unavailable e. Judge decides whether expectation of death was settled & hopeless (Shepard, p. 445) – 104(a) 8. Present Sense Impressions, State of Mind, and Related Exceptions – 803 a. Excluded from HS, even if declarant is available i. 1 – present sense impressions ii. 2 – excited utterances (a.k.a. spontaneous declaration) iii. 3 – stmt re OCD’s state of mind iv. 4 – stmt for medical treatment / diagnosis b. Timing – 1 and 2 (present sense, excited utterance) i. Present sense impression – simultaneity (a) Only delay allowed = time it takes vocal cords to describe what happened (b) Theory – smaller possibility of fabrication on part of speaker (no time to make up a lie) ii. Excited utterances – greater time lag (a) If speaker still under stress of exciting event, that can extend over greater period (b) But if event is really stressful, powers of perception & communication might’ve diminished iii. Ex: 911 calls – but Conf. Cl. problem – frequently made to authorities, involving W not under c-x c. 3 – speaker’s then-existing state of mind i. If saying how he feels, no external reality to misperceive or misremember Flusche 10 of 13 ii. If state of mind is relevant, no better EE than what speaker himself says iii. Ex: OCS reflective of declarant’s future plans can be testified to by someone who heard it, to prove that declarant did plans (Hillmon, p. 459) (a) Problem – stmt of someone’s own future plans being admitted to prove what someone else did iv. Ex: OCS = “I hate V; I am going to kill him.” – HS, but fits under exception – state of mind, plans v. Ex: “I realize how much I despise my husband” – HS, but state of mind (for alienation of affection) vi. BUT doesn’t get in person’s belief about past act d. 4 – stmt for med treatment / diagnosis i. Allows in some statements about past events, as long as reasonably pertinent to treatment / diagnosis ii. Anyone who overheard 803(4) stmt can testify to it, even if less good than other people iii. “Legs are really throbbing” – comes in under 3 and 4 – either physician or W can testify to it iv. “Agony out on trail, couldn’t sleep last night” – 4 allows in stmt re past event v. “Ran over w/ snowmobile” – 4 allows – cause of injury is important vi. Ordinarily, perpetrator not relevant for diagnosis / treatment, but could be (ex: abuse in the home) vii. Examination in preparation for trial – allowed (diagnosis) – can c-x physician 9. Recollection Refreshing and Past Recollection Recorded – 803(5) a. Recording past recollection, foundational: i. W once had personal knowledge re event, but no longer has personal knowledge of it ii. W made memo re event, when “fresh” in mind, and it was accurate when made b. Exception for fresh, written down HS – but no exception for fresh, oral HS, unless excited utterance c. Primitive type of business records exception 10. Business Records a. 803(6) – reports of regularly conducted activity during “business” i. Don’t need personal knowledge of specific transaction ii. Needs to be trustworthy b. 803(7) – absence of entry in records from 803(6), to prove the nonoccurrence of the matter c. Accident report made after RR incident != ordinary course of business (Palmer, p. 488) i. BUT, today this would be a business record, just kept out due to lack of trustworthiness d. Lets in intra-organizational HS – if HS comes from outsiders, can’t come in unless it is Q of what insider record (not truth of record) e. Business record can only “say” what it had personal knowledge of 11. Public Records and Reports – 803(8) a. Almost duplicate of business record exception b. Can’t use against criminal D when it is a record of observation by law enforcement (can’t c-x a record) c. Ct might not enforce distinction btw facts & opinions in public records (Beech Aircraft Corp., p. 496) d. If public records exception blocks it, you probably can’t get it in under 803(6) 12. Residual Exception – 807 a. Allows admission of HS, even if not specifically addressed by one of exceptions b. Requirements: i. Equivalent circumstantial guarantees of trustworthiness (reliability) ii. EE must be more probative on particular point than other reasonably obtainable EE (need) c. If read to fashion new categories of HS exceptions, pretty ordinary – judges did this before FRE d. If read to allow exceptions on ad hoc basis, radical rule – basically saying there isn’t a rule against HS i. Dallas County, p. 507 – allowed in 56-year-old newspaper article – judge tried to word it as a rule, but it’s really an exception for this case ii. Laster, p. 514 – ct let in EE that is missing a requirement under an exception e. Accounts for greatest # of Conf. Cl. problems 13. Forfeiture by Wrongdoing – 804(b)(6) a. W unavailable AND b. Stmt offered against party that has engaged in wrongdoing that was intended to, and did, procure unavailability of declarant as W Flusche 11 of 13 VI. Confrontation Clause and Compulsory Process A. Confrontation and its Relationship to Hearsay 1. 2. Difficulty arises when allow in EE under HS exclusion or exception – potential Conf. Cl. problem 3. Ohio v. Roberts – let in HS against criminal D, consistent w/ 6th A, as long as reliable a. Reliability = firmly rooted exception at CL or particularized guarantees of trustworthiness 4. Crawford, s p. 406 a. D on trial for assault, claims self-defense, invokes privilege against spousal testimony, claims can’t c-x wife re stmt she made to police b. If what you have is testimonial HS, criminal D must have opportunity now – if declarant is unavailable, D must have had prior opportunity c. “Testimonial” HS – sole focus of Conf. Cl. i. Testimonial – stmt at prelim. hearings, grand jury, former trial, stmt to police in interrogation ii. Non-testimonial – casual stmt to friend, co-conspirator stmt, business records d. Possible formulations of testimonial HS (narrowest to broadest) i. Formalized testimonial materials (affidavits, prior testimony, depositions) ii. Ex parte in ct testimony; stmt that W would reasonably expect to be used prosecutorially iii. Objective W would reasonably believe stmt would be available for use at a later trial B. Compulsory Process 1. Chambers, p. 573 a. Unconstitutional for this D not to be able to put on EE of other confessions or further follow-up on c-x of McDonald himself b. SC doesn’t say that the rules themselves are unconstitutional – but the combination, here, is unfair c. However, Chambers would’ve fared worse under FRE d. Possible interpretations i. Ince & Whitehurst can’t be applied against criminal D if he is seeking to call “real culprit” to stand ii. D in criminal case should have some right to introduce 3 rd party confessions through another, if it’s genuinely against that 3rd party’s penal interest & otherwise reliable, even if confessor is not unavailable iii. Maybe we can now say that McDonald is unavailable, since Ince doesn’t let criminal D call McDonald to the stand VII. Subconstitutional Exclusionary Rules A. Rationales common to all – Congressional balancing behind 407-11 as a group 1. Relevance / PV questions a. W/ respect to some, there is considerable congressional skepticism as to whether X is relevant or has much to tell us about point trying to prove (even w/out these rules, 403 would likely keep it out) Flusche 12 of 13 b. External, policy-based rationales – creating incentives for conduct, removing dis-incentives c. Categorical bar – no room for ad hoc allowance under 403, if barred 2. Structural similarities / differences a. 407-9,11 – bar certain kinds of EE when being introduced for particular forbidden purpose (French) b. 410 – bars any use of what is forbidden in rule, w/ specific exceptions (German) B. Subsequent Remedial Measures – 407 1. If you don’t take remedial steps & something else happens, you are even worse off 2. Misuse problem – jurors will look at change and say “they knew it they were liable” 3. Federalism issue (Flaminio, s p. 50) – many states allow subsequent changes as EE for prod. Liability cases – this results in forum shopping 4. Real federalism problem – privileges under 501 a. Rule delegates to fed courts power to develop rule of privilege, governed by CL b. Congress worried that if promulgated as rules, they would push envelope of Rules Enabling Act c. Privileges are almost exclusively oriented toward incentives for behavior d. If the proposed rules had been enacted, Congress would be effectively displacing state privileges rules C. Offers of Compromise and to Pay Medical Expenses 1. 408 – offers of compromise not admissible to prove liability or invalidity of the claim 2. 409 – offers to pay medical expenses not admissible to prove liability 3. Fact of settlement – barred under 408 4. Offer of compromise – barred 5. Stmt made in settlement negotiations – barred (admission of fault – has ↑ PV, might have minimal DUP) 6. What are “settlement negotiations”? (Davidson, s p. 55 – demand letter != settlement) D. Pleas and Plea Negotiations – 410 1. Not admissible = guilty pleas, offers to plead guilty, and stmt made in plea negotiations 2. Differences w/ 408 a. Completed guilty pleas not protected (410) – but completed settlements protected (408) b. Stmt in plea negotiations protected, only if made to govt. attorney – no attorney needed in 408 c. Stmt admissible only against party who made them – 408, neither party may introduce d. German rule – everything forbidden, except if specifically admitted E. Structure of Privileges – 501 – fed courts develop privilege rules VIII. Authentication and the Best EE Rule A. Background – all writings produce HS questions – two questions: authentication; can W testify re document? B. Authentication and Identification of Documents 1. Most documents are not self-authenticating (902, some are, like public documents, etc) 2. To authenticate (901) a. Sufficient EE to support finding that matter in question is what proponent claims b. Tells judge – must be sufficient EE from which fact finder could find that doc is what proponent claims 3. If writing isn’t what it purports to be, it’s not relevant (in most cases) 4. Writing is relevant, condition on proof that fact finder could find that it is what it purports to be a. Conditional relevance – 104(b) b. Judge simply concludes that jury could find that doc is authentic C. Best EE Rule 1. No such thing (generally) as “best EE” 2. Juries do weigh EE differently – prefer live testimony, character rules, etc 3. W on stand may not ordinarily testify about contents of document, unless you don’t have doc (and it’s through no wrongdoing of proponent of contents) 4. Once doc unavailable, any 2 nd EE that is 401-relevant can be introduced to show contents IX. Lay Opinions and Expert Testimony A. Lay Opinions 1. Anyone testifying as to his opinion relates back to 602 (personal knowledge) 2. Ordinary Ws can’t give their opinions – jury does that Flusche 13 of 13 3. Line btw fact & opinion is not altogether clear 4. Some people think every factual stmt requires drawing an inference 5. 701 – limited opportunity to give opinion a. Based on personal knowledge b. “Helpful” to the jury c. NOT based on scientific (etc) knowledge 6. Undercover agent’s testimony (most of it) is expert testimony, not lay opinion (Figueroa-Lopez, p. 591) B. Expert Testimony 1. 702 a. Need not be based on expert’s personal knowledge b. Will “assist” jury –can go to ultimate issue c. Must be based on scientific (etc) knowledge 2. Broader ability to give opinion 3. Old test: admissibility = general acceptance; weight = testability, error rate, peer reviewed (Frye, p. 625) 4. Now, judge plays gate keeper, in front seat – must be found “reliable” by the judge (Daubert, p. 626)