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Aronson Evidence Outline

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					Evidence Outline 1. Generally: Role of Juries and why we have exclusionary rules a. The actual rules: i. First look to the language of the rule young rules adopted 1975 ii. Next the court may look to legislative history 1. house, senate, conference reports but these are not binding on the court b. Purpose to regulate jury trials—little control on the back end –must regulate what is heard i. Mistrust of jury reliability ii. Further accurate fact finding iii. Control the scope and duration of trials iv. Protect relationships v. Insure due process and fairness vi. Concern that juries might over value certain evidence 1. there is an inability to fix poor jury results after the fact principle of finality with jury decisions vii. We have a blind trust of the juryno inquiry into their decisions (so regulate from the start) 1. R606:Competency of jurors as witness a. 606(a) At the trial: A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. b. 606(b) Inquiry into validity of verdict: …a juror may not testify as to any matter or statement occurring during the course of the jury deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror… i. Cannot accept affidavits from a juror ii. Tanner v. US (p7): the jury was drinking and doing drugs during the trail and after the verdict it was brought to the courts attention. The defendant's lawyer wants a new trail—and wants to interview the juror on what went on. Asks the courts permission and the court says NO. 1. R: Jurors may not testify as a witness about their verdict UNLESS: a. The jury was subject to outside influences OR i. Here issues arise as to what is outside influence— outside the case? Outside the jurors themselves? ii. Intoxication is an inside influence—because it is something you do yourself b. The jury was subject to extraneous prejudicial information i. Still would not be able to testify as to the affect these things rendered just that they took place iii. Policy considerations for 606: 1. Competing considerations and a balance between the two: a. First: i. finality of decision ii. trust of the community within they jury

iii. allowing jurors to have full and frank discussions—don't want to chill their discussions b. Second: i. Putting verdicts beyond effective reach can only promote irregularity and injustice 2. Is the evidence admissible: STEPS to go through a. Relevance: Is the evidence relevant? i. Relevance Generally: R401: 1. Important Exam tip points: a. For evidence to be relevant it must make something more or less probable. It does not need to build a brick wall, instead it just needs t be a brick b. Very liberal rule: low threshold for admission c. Undisputed evidence is still relevant—if it is probative and material 2. Definition: 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. If not relevant—excluded b. If relevant—focus on the next evidentiary rule 3. 2 questions to ask to see if evidence is relevant: a. Probative value: does the evidence have a tendency (does not need to be substantial) to make a fact more or less true? i. Police go to a murder suspect's house. Upon their arrival the wife says…where is the body, show me the body. 1. Her statement the evidence 2. Her saying this makes the fact that there is a dead body and her husband knows about it more probable 3. It is material to the case as to whether her husband is a murder ii. US v. James: making the D more or less likely to be credible by offering if evidence of what she told the jury Ogden had told her about trying to kill a man. 1. Court holds this is relevant because it makes it more likely that she is telling the truth if he really did do these things. b. Material: Consequence of the case: is the fact material in this case/ does it affect the case's outcome? IS IT LEGALLY SIGNIFICANT? c. Ex of material: in a rape prosecution the suspect wants to offer evidence that she consented—this is material because if she consented it affects the consequence of the case. But if it was statutory rape it would not be material because whether she consented does not affect the outcome of the dispute d. Evidence more/less probablefact material to the case issue in dispute 4. Role of the Judge and the Jury generally with relevant evidence: a. 104a: the judge decides whether the evidence is or is not relevant. i. Low threshold—does it have ANY tendency to make the existence of the fact more or less probable

1. Only if the judge determines it is relevant does the jury get to hear the information ii. Then during deliberations the jury decides what weight, if any, to give the evidence. iii. Judge however cannot decide whether evidence is credible or not—that is determined by the jury b. If it is not relevant it is not admissible under R402 ii. Conditional Relevance: 104b  within all chains of inferences their can be a missing link and therefore a conditional relevancy issue. 1. General definition: this is evidence that is not relevant by itself but will be if other facts are proven 2. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. a. Standard of proof of the condition: (not in the rule—SC adopted): that the jury could reasonably find the conditional fact by a preponderance of the evidence i. Must be more likely than not b. Process for Rule 104 i. (A) when we cannot trust the jury to decide whether the condition is met we let the judge play fact finder ii. (B) if we can trust the jury to decide--judge allows the evidence in subject to the conditional connection if the conditional connection is not introduced well enough (although a low standard) then the judge instructs the jury to disregard the original evidence. 1. Might call a mistrial if exposure to the jury to the improper evidence has caused irreparable prejudice 2. If it something you do not think that you can trust the judge to decide argue that it fits under 104a not b—if you want the jury to decide argue it goes under 104b 3. generally with issues such as knowledge of the parties it is usually ok to let the jury decide 3. Example: Cox v. State p 34: Man was accused of killing a father through the window. The prosecution wants to introduce evidence of motive being that his friend was just sentenced for molesting the father's child. However this evidence is only relevant if it is proven that he knew about the friends sentencing. 4. Example: Fitzhough case: Husband murders his wife. The evidence they want to offer is that the wife was going to tell the kid that the husband was not the real father. But this evidence is relevant only if the husband knew. iii. Probativeness v. the risk of unfair prejudice: R403: RULE OF ADMISSION! 1. 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. (3 substance/ 3 procedural concerns) a. May be excluded—judge's discretion

i. Only reversed on an abusive discretion standard R103 only reversible if it lead to harmful error—which would be that the evidence lead to an improper verdict based on it. b. The Probativeness must be SUBSTANTIALLY outweighed by the unfairness the balance is in favor of admissibility i. Court looks at whether there is a less prejudicial way to get the evidence in 1. ex—picture of the dead baby—instead let someone testify to it c. Unfair prejudice—not just prejudice must be unfairly so i. Burden of proof is on the party that does not want the evidence in to show it is unfairly prejudicial ii. This is because all evidence is supposed to be prejudicial to the party against which it is introduced—key to exclusion is UNFAIRLY 2. Ex: a. Bocharski—the two friends lived with the old lady between them who they killed. The evidence wanting to be introduced was 6 photos of the dead body b. OJ case—use of the racial slur 41 times—only allowed it in to show once— otherwise it would waste courts resources iv. Specifically Evidence of Flight: adverse inferences: may indicate consciousness of guilt and be relevant 1. All four inferences must be drawn for this to be relevant: If the judge determines that a jury could reasonably find all four inferences to be true than this is relevant and admitted: high standard a. From the defendant's behavior to flight i. Is what they are doing actually flight? Did they leave for another reason b. From flight to consciousness of guilt c. From consciousness of guilt to consciousness of guilt concerning the crime charged i. Is it guilt from something else d. From consciousness of guilt concerning the crime charged to actual guilt of the crime charged i. This specific crime—what if they committed other crimes too? ii. Timing—how much time has passed since the crime occurred? 2. If you cannot prove all four links—the evidence is considered not relevant and not allowed. b. Authentication: R901/902 i. Generally: Does the evidence have the proper foundation how do you prove it is what you say it is? ii. Standards of proof—for purposes of authentication 1. 901(a): conditional relevance of 104(b): the trial court does not decide whether the evidence is authentic by a preponderance of the evidence, INSTEAD: the court decides ONLY whether sufficient evidence has been introduces to support a finding of authenticity PRIMA FACIE a. Low threshold standard b. Then jury decides if the preponderance is met. i. It becomes a matter of conditional relevance

c. On cross they can question the authentication of the document iii. Different types of evidence are authenticated differently: 1. Generally: different ways things can be authenticated: a. Witness with personal knowledge (also can involve chain of custody) 2. tangible evidence that is connected to the case (as opposed to illustrative evidence) a. distinctive objects: (this are objects that are distinctive and well known to the witness) steps taken by the attorney that gets the evidence in low threshold i. Describe what the evidence appears to be ii. Mark the exhibit iii. Show it to the other side iv. Ask permission to approach the witness with the exhibit for purposes of ID v. Lay the foundation for the witness: 2 questions 1. What is this exhibit? 2. How do you know what it is? a. Personal knowledge is required by the witnessR904(b)(1) b. fungible evidence: (evidence that looks like other things—like drugs-see pg 286 roadmap book) i. Establish that this is the SAME one from the scene: ii. 901b4 establish that the evidence is readily identifiable: 1. distinctive characteristics 2. serial numbers, officer initials iii. 901b1establish a chain of custody to prove the condition is the same 1. not every link is required—just enough so that a reasonable juror could find the same a. missing links become a bigger deal if the D is alleging tampering b. requires numerous witnesses 2. Establishing chain of custody is useful when no one has personal knowledge or there are no distinctive characteristics 3. documents/ writings: (Authentication of documents requires evidence be introduced adequate to support a finding that the document is really what it purports to be or really written by the individual) Ways to authenticate a. self authenticating documents: R902 b. Personal Knowledge: 901b1Did someone watch the writing being done? This person could authenticate c. Nonexpert opinion of handwriting: 901b2 someone who is familiar with the handwriting. Must have acquired this knowledge outside of the given litigation d. Expert witness on the handwriting: 901b3 have an expert compare something else we know he wrote. Require the other side to produce it in discovery e. Appeal to the common sense of the jury:  show the comparison to the jury and let them decide i. A lay witness cannot make this comparison but the jury can

f. Distinctive characteristics: 901b4 (lawyer catch all)--Distinctive characteristics surrounding the writing appearance, content, substance, internal patterns, taken in conjunction with circumstances i. ex: p 10.2 p 704 g. public records: evidence that the writing or data came from the officer where items of that type are kept i. may need a witness who knows about the source h. Ancient documents: 901b8: Old documents: 3 conditions must be met to authenticate i. in such a condition as to create no suspicion concerning its authenticity ii. in a place where, if authentic, it likely would be iii. has been existence for 20 years or more at then time it is being offered 1. US v. Stempkas p 700 4. voice IDs—R901b5—ex p 705 -10.3 a. familiarity to the voice: i. ID of a voice, whether heard firsthand or through mechanical or electric transmission or recording by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker 1. Voice ID can come from within the litigation (different from b2) 2. Self id of the caller alone is not enough if the voice is not known to the listener 3. Personal knowledge required for a voice ID 4. Someone can authenticate who saw or heard them make the phone call: 901(b)(1) b. Incoming Phone calls: i. Distinctive circumstances surrounding the call: 901b4 1. EX: People v. Lynes—p 706: Officer left phone number with the brother and told the brother to have Speedy call him. Speedy does and they are trying to authenticate that it was him on the phone a. content of the comments on the phone—suggest knowledge Speedy would have had b. reaction consistent with reaction Speedy would give c. timing of the call comes right after request ii. Could also use voice ID iii. BUT you cannot use the simple fact that someone IDs themselves as that person c. Outgoing phone calls: (easier) i. Voice ID ii. Number and circumstances: for a call to a residence dialing the number assigned to a person is itself indication that the one who answered is X—must be confirmed by other circumstances d. Reply Doctrine: when someone writes a letter inviting a response relating to the subject matter of the request…you can authenticate by the fact that the reply was within a reasonable time and discusses the matters asked about. 5. Demonstrative evidence: photos, videos

a. Generally: these are not things actually in the case instead they are evidence that must FAIRLY AND ACCURATELY depict X (asked of the witness) b. 2 ways this evidence can be authenticated: i. Witness adopts it as his testimony: 1. do not need who actually took the picture if someone with personal knowledge says it represents what happens. a. Need personal knowledge of the CONTENT of the photo 2. 3 questions to ask the witness to lay the foundation: a. what is it? b. how do you know c. is it a fair and accurate depiction of X ii. Silent witness R 901b9: when no one has personal knowledge the evidence can be admitted upon proof of the reliability of the process which produced the evidence: Judge will consider the following 1. that the system is reliable 2. show how the system works 3. was it tested shortly before 4. chain of custody-how and where were they stored—is their any evidence of tampering 5. tell the meaning and significance of the video 6. time and date of when the video was taken iv. Self Authentication: R902these are things that the nature of the evidence requires no additional explanation: taken at face value: listed in the rule 1. domestic public documents under seal or not under seal 2. foreign public documents 3. certified copies of public records 4. official publications 5. newspapers and periodicals 6. trade inscriptions and the like 7. acknowledged documents….. 8. etc… v. Chain of custody issues: 1. chain of custody does not need to be perfect—but the faults will go to the weight of the evidence c. Best Evidence Rule1: R1001, 1002, 1003, 1004, 1008 i. Generally: 1. This rule applies when you want to prove the contents of the writing a. Applies only to: i. Writings, recordings, and photos ii. And only applies when trying to prove the content of these items b. Important note: If one has personal knowledge of an event—this trumps the BER you can testify to what you had the personal knowledge of but cannot testify that you saw the writing and this is what it says i. Ex: if you saw the robbery and it was video tapped—you could testify as to what you saw.
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Personal knowledge TRUMPS best evidence rule

1. But if the officer only saw the tape he could not testify to the contents of the tape. 2. If testifying to what the documents contains—BER/ but if testifying to what you know BER DOES NOT APPLY 2. Two situations this issue comes up: a. If the writing, recording, or photo is itself at issue in the case (copyright, libel) b. When a litigant is proving the content with out a witness 3. policy: a. that the writing itself is more reliable than testimony describing what is in the writing b. protection against forgery and fraud 4. Traditionally: required to produce the original when trying to prove its content a. Today: copies of the original are permitted the duplicate is almost as good as the original R1003 i. Sometimes the original is still required if there is a question of authenticity or if it would be unfair to allow the copy to come in. ii. Issues arise when a copy questions the authencity of the original hole in the rule ii. Difference between a writing and an inscribed chattel: ex—license plate 1. Things that happen to have writing on them but are objects do usually not fall within the BER a. usually the court looks at how the 'writing' is being used in a particular case to determine whether it is a writing or an inscribed chattel. iii. When are duplicates admissible? 1. R1003: copies are almost as acceptable as originals (must still authenticate that it is what it purports to be under 901) a. Copy will not be admissible if there is a genuine question—we want the jury to be able to decide whether it is genuine by seeing the original i. Problems: when a copy is offered to question the authencity of the original (Nurse clip) ii. Manually created copies are usually NOT ok as duplicates b. Copies are not allowed if it is unfair under 1003(2) iv. When is the production of the original excused? 1. If lost or destroyed a. R1004 then ANY other evidence is acceptable: b. Exception: if the person who wants to offer the other evidence is the one who lost or destroyed the original 2. When the original is in possession of the other side and they failed to bring it forward 3. when the original is not central to the case 3. Hearsay: a. Generally: i. R802: provides that hearsay is inadmissible unless provided by these rules, the Supreme Court, or Acts of Congress ii. Rational for excluding hearsay: Testimonial inferences made by a jury which are risks for hearsay evidence: 1. perception: did the witness accurately perceive the events

2. memory: has the witness remembered the events accurately from that day to now 3. Narration: has the witness accurately narrated what he perceived and remembered 4. Sincerity: is the witness lying or subconsciously shading the truth? a. These risks are always present with any witness testifying: i. but because a witness at trial is: 1. under oath 2. subject to cross—expose weaknesses of the testimony 3. and the jury can observe the witness it protects against them a. These are the testimonial safeguards b. However with Hearsay those safeguards are not in place and these risks still exist c. Best way to test these things is with Cross examination—it can expose weaknesses and reduce the impact of the testimony d. We want to examine the witness who actually has the evidence so we can test the testimonial inferences b. Defining Hearsay: i. Generally: 1. Elements a. Out of court statement (is the evidence a statement?) i. 801(a): 1. an oral or a written assertion 2. nonverbal conduct of a person, if it is intended by the person as an assertion a. Assertion = something someone says or does in order to communicate a fact or opinion in the hope or expectation that it will be accepted as true b. Key is are they trying to communicate what we want to use the evidence for—look at what the intent of the declarant was when making the assertion do we have to rely on the credibility of the declarent? b. offered for the truth of the matter asserted (why is it being offered) i. if not offered for this purpose than the testimonial risks do not exist ii. Ask why the attorney wants the jury to hear this evidence what is he trying to prove? 2. If more than one layer of hearsayR805 a. You must find an exception for EACH layer ii. Element 1: Out of court statement: 1. 2 things can be a statement for purposes of hearsay: a. Oral or written Assertion: nothing is an assertion unless it is intended to be one. An assertion is something someone says or does in order to communicate a fact or opinion in the hope or expectation that it will be accepted as true and accurate. b. Nonverbal conduct of a person if it is intended by the person as an assertion 2. Assertive v. non-assertive: a. SPEECH: i. Assertive speech: statements are assertive unless clearly a lie

ii. Non-Assertive speech: sometimes the assertion can be implied 1. Ask why the declarant said what he said: sometimes non assertive words can be meant as an assertion 2. Did the words intend to communicate something a. Letter example: this was not an assertion that he was competent because when writing a business letter he was not trying to assert that he was sane iii. Silence is not hearsay: 1. unless it is concluded that be remaining silent the person intended to communicate something b. CONDUCT: see whether the person doing the conduct intended it to be an assertion i. Nothing is an assertion unless it is intended to be one: look at what the most probable reason the person acted 1. ex: putting up your umbrella in the rain—is not hearsay because you were not trying to communicate the fact that it was raining ii. Absence of conduct is usually not hearsay—unless it was intended to assert something 3. Photos, films, video tapes: these are not statements if taken at the actual event, but if they are taken to reconstruct the events than they are statements and can be hearsay iii. Element 2: Offered to prove the truth of the matter asserted: 1. Things that are not offered for there truth and are not hearsay: a. To show the effect the statement had on the listener: i. Motive ii. That they were on notice: had knowledge doesn't matter if the statement was true, all that matters if it was said and heard b. Verbal acts: the crime constitututes the act: by making the statement the declarant engaged in some act under the law i. Assault ii. Defamation iii. Conspiracy iv. Fraud v. Drug deal 1. Here you just really want to know if the statement was made, content of the statement is not as important c. Verbal objects: things with writing on them d. Verbal markers: Always need two witnesses with these i. Time, distance, location ii. EX: H calls W after his store was robbed: if the wife testifies that H called around 10, this is not being offered to show the store was robbed but acts as a time marker e. Circumstantial evidence as to state of mind i. Someone else or the declarent's state of mind f. Used to impeach the witness 2. Offered to prove the truth of the matter asserted: a. First see what the declarant intended to assert

b. Second see why the attorney wants it introduced into evidence i. If they match it is being offered for the truth of the matter asserted iv. **NOTE R602: requires that any testimony must be personal knowledge 1. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge on the matter. Evidence to prove person knowledge may, but need not consist of the witness' own testimony. a. *Advisory notes: "this rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement…this rule would however prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it" c. Exceptions to the Hearsay Rule: i. When can the out of court statement be offered to prove the truth of the matter asserted? 1. Exceptions are usually based on either or both of the following: a. Necessity b. Trustworthy/ reliability 2. An exception only needs to be established by a preponderance of the evidence 3. Must find an exception for each layer of hearsay ii. R801(d)(2): Admissions by party opponent2: does not require personal knowledge of declarent3 1. THE RULE: Statement is not hearsay if the statement is offered against a party and is: a. The party's own statement in either an individual or a representative capacity OR b. A statement of which the party has manifested an adoption or belief in its truth OR c. A statement by a person authorized by the party to make a statement concerning the subject OR d. A statement by the party's agent or servant concerning a matter within the scope of the agency or employment made during the existence of this relationship OR e. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy i. The contents of the statement shall be considered BUT are not alone sufficient to establish the declarant's authority under subdivision C, the agency or employment relationship and scope thereof under subsection D, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision E 2. Generally: this includes anything the other side ever said or did (more like statement, not an admission): very broad as long as it came from the other side a. Based on the adversary system b. Rational: i. Party should not be allowed to exclude his own statements

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ANY STATEMENT by the party—it does not have to be against their interest in anyway—all that is required is that they said it This is because we are holding them responsible for what they said, not what they have knowledge of. They have the opportunity if they chose to get on the stand and explain it

ii. If a party is unhappy about his own statements he can take the stand and attempt to explain why he said, what he meant or why the jury should not hold it against him c. **NOTE: statements that come in under this hearsay exception are not necessarily binding on the party—the party can take the stand and change their statement or explain it i. 2 exceptions: statement is binding 1. Live pleadings: judicial admission by the party 2. requests for admissions under FRCP 36: conclusively established 3. Party's own statement: 801(d)(2)(a) a. ELEMENTS: i. Statement ii. Made by the party iii. Against whom it is being offered b. IN a lawsuit of P v. D, if P can prove that D made a statement admissible c. So long as P and D are on opposite sides of the V anything D said that P offers into evidence is admissible and vise verse d. What about lack of a statement: i. Miranda issues if you do not make a statement: 1. Silence after you have been read and invoke your Miranda rights: cannot be used against you a. But must have been given notice of this right 2. What about for impeachment purposes??? ask 4. Adoptive Admissions: 801(d)(2)(b) a. Generally: i. This is a statement that someone else made but this party in some way has adopted it as true: 1. it acts just as much as an admission as if the party made the statement themselves ii. Can be direct by saying yes or implicit or tacit admissions: 1. Here we allow the jury (104b) to decide whether he adopted the statement as true—we can trust that if they do not think so they will disregard the statement a. Probable human behavior: Should see if a reasonable person would have responded if they did not think the statement to be true b. TEST: i. What would a reasonable person do under the same circumstances…if a reasonable person would have denied it if not true, and he did not—he has adopted the statement c. ELEMENTS: i. Was the statement heard and understood by the party against whom it is being offered? (anybody v. my buddy) ii. Was the party at liberty to respond? 1. has he been given Miranda warnings iii. Do the circumstances naturally call for a response?

iv. Did the party fail to respond v. In light of all of the above what would probable human behavior be? d. Miranda Issues with adoptive admissions: Miranda and Silence D is not in Custody D is in Custody-PRE D is in Custody POST Miranda Warnings Miranda Warnings ?? NO Can the silence be used as ?? SPLIT Fletcher case says NO an ADOPTION of -Depends if the right admission under 801d2B? attaches with or without the warning -Policy arguments: It might encourage waiting to Mirandize YES YES: NO May Silence be used to -was used this way in -Would violate the Due Impeach the D? Fletcher case Process clause 5. Statements By Agents: 801(d)(2) (c) &(d)statements made by someone else that are imputed to the defendant because of the relationship between the two: VICARIOUS ADMISSIONS a. Officially designated Spokesperson 801D2c: examples—publicist, press release i. Here you need outside evidence that the person was authorized to make the statement: 1. cannot just look at the statement itself—but judge can consider the statement with outside evidence in deciding whether their was an agency relationship b. Agent Admission rule 801d2d: 3 elements i. AGENCY: Statement by agent, servant, AND 1. It does not matter if it was an in house statement—made to another person in the company Wild Canid Survival case 2. broader than part c—this person does not need to be authorized to speak for you ii. LIMITATION: within the scope of the agency or employment AND 1. At CL: it was only specific statements that were authorized by the employer—now it is any statement within the scope of the employment 2. Check and see exactly what the scope of this particular person's employment was: Example a. A is hired to fly the plan that sprays incectsize on the field and they spray weed killer from the plane instead. i. IS A's job simply to fly the plane? If so and he comments that they sprayed the wrong stuff than he would not fall within the exception iii. TIMING: Made during existence of the relationship (cannot quit and then make the statement)

1. must show outside that the person was in fact either an agent or authorized spokesperson (can look at the statement itself but need other evidence as well) a. Must do this by showing something outside the actual statement itself: i. Just saying the person said they worked for someone is not enough. c. Party's co-conspirator 801d2e: 3 ELEMENTS: i. CONSPIRACY: There was a conspiracy—both were members of 1. Judge decides—whether by a preponderance of the evidence a conspiracy existed: 104(a) a. The rules of evidence do not apply when the judge decides these issues: the contents of the statement can be considered but alone is not enough to establish a conspiracy 2. The point of arrest terminates the conspiracy: a. Also responsible for statements after you leave unless you make a noisy departure b. Responsible for statements before you join? 3. Creating a conspiracy can act as a verbal act and is not hearsay for purposes of showing the conspiracy 4. the conspiracy does not need to actually be charged ii. PENDANCY: Statement was made during the course of the conspiracy iii. FURTHERANCE: Statement was in furtherance of the conspiracy 1. must advance the conspiracy in some way—not idle chatter a. plane ride example—might not have been in furtherance of the conspiracy because the exchange had already taken place d. If one of the agency theories is used: it is subject to conditional admissibility: i. If the judge admits the evidence subject to connection the judge is telling the prosecutor that they have not satisfied the rule yet but the evidence is admitted subject to it be satisfied by the time he rests the case ii. If he never satisfies the condition the other side should move to have the evidence striked. iii. R801(d)(1): PRIOR STATEMENTS BY WITNESS: 1. ELEMENTS: In order to use this exception Must establish the following: a. The declarant testifies now b. And is subject to cross-examination concerning the earlier statement i. What does it mean that he is subject to cross: 1. are they here, 2. do they have a pulse, 3. are they responding willingly to questions— a. does not mean that the cross needs to be an effective cross, just that they are subject to cross, can say I don’t know or I do not remember and still be subject to cross (Owens)

b. But you are not subject to cross if you refuse to answer c. Declarant under oath i. Must be under oath—not just to an officer 1. but if given not under oath-can always try to use it for impeachment purposes—BUT other side can argue 403 here that if you bring it in for impeachment it will be unfairly prejudicial 2. Exception 1:801(d)(1)(a) Inconsistent Sworn statements4: a. ELEMENTS i. INCONSISTENT: prior statement is inconsistent with what the declarant just testified to 1. when is a statement inconsistent: a. CA must show that the memory loss is FAKE to get in the earlier statements ii. CROSS: each attorney must have the opportunity to cross examine iii. OATH: prior statement was made while the declarant was under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition 1. prior trial, deposition, preliminary hearing, grand jury proceedings, legislative hearings 3. Exception 2: 801(d)(1)(b) Consistent statements: used for a limited purpose a. Rational: i. a prior consistent statement that rebuts an accusation of recent fabrication or improper motive is relevant in helping a fact finder decide whether to believe the testimony b. PURPOSE: is to rebut alleged motive by the witness—cannot use to bolster the witness's veracity c. ELEMENTS: i. Declarant testifies at the trail or hearing and is subject to cross examination concerning the statement ii. Prior statement is consistent with what the declarant has just testified to at trial 1. prior statement does not need a. to be made in a formal setting— b. does not need to be under oath iii. At some point in the trial an attorney impeaches the declarant by accusing the declarant of: 1. having recently fabricated the testimony or 2. allowing his testimony to be improperly influenced or motivated a. KEY IS THE TIMING
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Difference with using the statements for impeachment and for the truth of the matter asserted ****Impeachment is allowed under 613: 3 elements 1) The declarant must be testifying 2) The prior statement is inconsistent with what declarant has testified to 3) Except in unusual circumstances, at some point in the trial the declarant must be given an opportunity to deny pr explain why he made the inconsistence statement

b. 104(a) question as to when the motive arose iv. the prior statement is relevant to rebut the accusation 1. Only so if the statement was made BEFORE the source of the bias or interest or motive arose—When was their a motive to lie? 2. Not directly in the rule: but the statement must be made premotive. These statements are the most probative (Scalia thinks it does not matter because it is not in the text of the rule) a. EX: child makes the statements to the doctor after she knew she would need to move back with the dad. At this point the motive to lie 4. Exception 3:801(d)(1)(c) Statements made for Identification: a. Reasoning: i. These ID's are more reliable because they are made closer to the time of the actual event ii. In court ID is more suggestive b. Elements: i. Identifier must have perceived the D 1. can be other than sight 2. first hand knowledge ii. Must have identified the D 1. Can be in a line up 2. sketch artitist—this is ok as well because he is acting as the eyes of the declarant iii. The declarant must testify and be subject to cross 1. although the declarant does not need to be the actual one who says that she made the ID— a. nothing in the rule requires that as long as the declarant is subject to cross 2. On the stand, has a pulse, and voluntarily responding to questioning (if refuses to answer—this is different than does not remember) (although it is different under 804—it is good for purposes of this exception) a. Does not need to be adequate cross iv. Hearsay Exceptions R803, 804, 807: looks at Need + reliability = admissible hearsay 1. Rationales: a. Need: is the person not otherwise available? b. Reliability: are there circumstantial guarantees of trustworthiness i. Can have greater of one than the other 2. R803: these are based on the circumstantial guarantees of trustworthiness (does not matter if the person is available to testify or not—enough reliability that we allow them in regardless) a. Present Sense Impressions: 803(1): a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. i. Elements: 1. personal knowledge (602)

a. can have personal knowledge of what you hear and not to what you saw: 7.30 2. describing or explaining an event 3. while perceiving or immediately after an event—importance of timing a. whether or not the witness was excited or disturbed does not matter—as long as the timing is satisfied ii. Rational: the reliability is based on the timing— 1. there is not enough time to fabricate the event 2. not enough time to have memory loss 3. no opportunity for reflection iii. KEY: contemporaneous observation b. Excited Utterances: 803(2): a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition i. Elements: 1. personal knowledge (602) 2. startling event 3. stress or excitement!!!! a. does not need to be contemporaneous as above—just need to be experiencing the stress or excitement of the event i. time can lapse and you can still be under the stress of the event ii. does not need to be a description of the event as long as it relates to the stress or excitement of it b. subjective component was this person under the stress or excitement of the event ii. KEY: was the declarant under the stress or excitement of the event— 104(a) question c. Statement of a then existing condition—STATE OF MIND: 803(3): a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and health), BUT not including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the execution, revocation, id, or terms of the declarant's will i. Elements: 1. statement 2. of the then existing present state of mind, emotion, sensation or physical condition a. physical or mental b. but not memory or believe to prove those facts— CANNOT go backward ii. Important points:

1. Hillmon: Must be forward looking: An intention or desire to do something can be admitted to prove that person actually did that something for the SPEAKER a. When can one's state of mind predict future actions of another: SPLIT i. Some courts—not allowed because it involves to much backward looking to get at the second person ii. 9th circuit: allows it to implicate someone else if two requirements are meet: 1) declarant is unavailable and 2) there are other circumstances guarantees of trustworthiness 2. Past state of mind statements are generally not admissible— memory has a greater chance of insincerity iii. EXCEPTION: statements of past state of mind are allowed in with regard to a will and the testator is dead—this is based on necessity d. Statements for the purposes of Medical Diagnosis and Treatment: 803(4): Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. i. Policy: When talking to doctors or to someone who can get you help— there is a heightened motivation to be truthful 1. heightened level of reliability 2. not a lawyer ii. Elements: 1. first hand knowledge a. Issues: i. It does not need to be from the one experiencing the medical problem BUT ii. Their must be first hand knowledge -example: if W says my husband eat a sandwich from that deli and when he got home he was ill, does he really know whether it was the sandwich that made him sick (104b—question for the jury) 2. Made for the purpose of obtaining a medical diagnosis or treatment a. Can be in preparation of trial b. Does not need to be made to a doctor i. Does not extend to statements made by the doctor—just to the doctor 3. Subject matter covered: statement must fall into one of the following a. Medical history (although this contradicts exception 803(3)) b. Past or present symptoms of pain, sensations

c. Inception or general character of the cause of the injury 4. statements must be reasonably pertinent to the diagnosis or treatment: a. can include cause but statements that attribute fault or blame are not included i. in order to treat a doctor needs to know what happened not who did it ii. Some cases you can argue that the dr needs to know who did it—if they might be sending the patient back to danger (abuse cases). In these cases you argue that the doctors job goes beyond the specific injury and goes to general welfare of the patient iii. When is the information reasonably pertinent to the treatment: 1. 2 Prong test to see if pertinent: a. Are the declarant's motives consistent with the purpose of the rule (seeking a diagnosis) i. minority of circuits carve out an exception for child abuse cases—only need to satisfy the second part of the test, recognizing it is to difficult to decide the child's motive (see 7.34) ii. Ex: Iron Shell case: *child viewed the dr as someone to help her * was not showing a concern over who did it *never showed an alternative motive b. Is it reasonable for a physician to rely on the information in diagnosing or treating the patent? i. some specific cases—statements of fault might be pertinent to diagnosis (child abuse, care taker abuse) ii. Issue of the difference between 703 (expert witness) and here because 703 the jury does not hear what the expert relied on to make the diagnosis iii. Just because the discussion with the dr. did not lead to a different exam does not conclusively mean that the questions were not pertinent e. Recorded Recollections: 803(5): a memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by the adverse party. (made a record and don't remember what it said) i. Policy: based on NEED ii. Elements:

1. writing 2. witness forgot or partially forgot what happened 3. statement was made or adopted when their memory was fresh 4. they had first hand knowledge 5. the writing reflects their memory correctly—VOUCH for it iii. Must first establish the foundation for the record 1. Declarant must testify when it is being offered 2. Show that the witness lacks present recollection: a. I forget, don't remember b. The declarant must be on the stand and subject to cross 3. made or adopted the statement a. when their memory was fresh 4. it was based on first hand knowledge: a. if the writer is recording someone else's knowledge than the first hand knowledge is not satisfied b. EX: officer writes down a witness's statement. Officer at trial cannot introduce the statement because he lacks first hand knowledge. But it can be introduced if W testifies as to having made it when his memory was fresh and the officer then testifies to writing it down accurately 5. did so while the matter was fresh in her mind—close to the time of the event 6. Vouch for the accuracy of the statement: do the following a. Testify that it is correct b. If cannot remember can testify that it is correct because of a habit or practice to record matters accurately and check them c. Recognizes her signature and does not sign things that are false 7. JOINT RECORDS: this requires two witnesses to get this evidence in: a. One testifies that he lacks memory now but he accurately conveyed what he knew while it was fresh b. Other testifies that he accurately recorded what was told to him—vouches for the document iv. Difference with the Recorded recollections and Writing used to refresh memory: 1. Refresh memory = 612: not allowed to introduce the writing into evidence or read it out loud or take its contents directly before the jury 2. Recorded Recollection: If the witness cannot recall the details even after attempting to refresh his memory by looking at the writing then 803(5) is an acceptable substitute a. First you must try to refresh the witnesses memory b. Here the writing itself is not introduced into evidence BUT the statement can be read into evidence

i. Opposing party can have the writing itself entered into evidence f. Business Records: 803(6): Elements: i. Elements: 1. The writing was made at or near the time of the event 2. By or from information supplied by a person with knowledge a. Person with the knowledge can have made the record b. Person with the knowledge can have reported the information to the person who made the record 3. kept in the course of regularly conducted business activity a. Issue: when it is an accident report—purpose is more likely litigation than business (BIAS—not as trustworthy) b. The judge decides whether it is a business record or not— 104(a) c. Strategy: i. If the document is harmful to your side—argue that it is work product ii. If the document is helpful argue business record exception 4. It was the business regular practice to make the record ii. All above elements are shown by testimony of a qualified witness (authenticate) 1. someone must testify saying this is how they keep business— does not need to be the person who made the record or the person who had the personal knowledge that went into the record iii. All layers of hearsay that are within the business are allowed in under this exception: 1. Business duty requirement: insiders must be the ones making the statements a. People outside the business do not have the same motives—they have no duty to the company b. Watch out here! 2. However, if there is a layer of hearsay outside of the business (like a customer reported something) than need a separate exception to get that part of the document in a. SOMEONE OUTSIDE THE BUSINESS MAKES A STATEMENT TO THE BUSINESS (!!) iv. Rational: reliability when they are used for the running of the business and it is the routine nature of the business to keep these records 1. business requires truthful records for the business to run efficiently 2. when in doubt look to reliability 3. some circuits might even allow in accident reports if they can be trusted and are within the course of business a. Ex: engineer involved in an accident writes an accident report which exonerates himself—this exclude, but if the

report was written by someone not implicated it might be more trustworthy g. Public Records and Reports: 803(8) i. Rational: 1. based on necessity—won't remember all they report 2. reliability—a public official performs their duty properly ii. First identify whether the record is: 1. (A) activities of the office or agency OR a. Examples: i. official court transcripts ii. US Marshall return to indicate service of process iii. Police reports b. Important points: i. Original source of the information can be shown through authenticating the document ii. Record must be in some physical form iii. Public office or agency—not something done by a private firm iv. Making the record: unlike 803(6)—there is no requirement here that it be made during a regular course of business (as long as it is trustworthy) v. Timing: unlike 803(6)—does not need to be made at or near the time of the event as long as not proven untrustworthy vi. No duty to report it required here vii. "activities of the office" what they did not conclusions 2. (B) matters observed by public officials pursuant to duty imposed by the law as t which the matters there was duty to report, (observations) a. EXCLUDING however, in criminal cases matters observed by police officers or other law enforcement (due to bias)—not admissible against either side i. Concern is that the government can create a documents and then use it to convict the defendant ii. Issues arise if it was a law enforcement report in an unadversaral nature—maybe let cases like this in under a different exception b. Example: Reports by building inspectors indicating code violations c. Important points: i. Here there must have been a duty to make the report 3. (C): factual findings resulting from an investigation made pursuant to authority granted by law

h. i. j. k. l. m. n. o. p.

a. When can it be used: i. in a civil action ii. or against the government in a criminal case b. Important points: i. What is a factual finding: "not only objectively verifiable factual conclusions, but also diagnoses, opinions, and reports that state conclusions as to cause, fault, blame ii. **Important to look at whether it is trustworthy— instead of what a factual finding means—question for the judge under 104(a) iii. (D): always keep in mind part D Trustworthiness: there is a presumption that public servants go about their official tasks with care, without bias or corruption, and that the scrutiny and exposure surrounding government functions adds assurance that public records are trustworthy: PRESUMPTION OF TRUSTWORTHINESS BUT CAN BE REBUTTED: 1. Burden of proof to show Untrustworthy: opposing side a. Factors considered: i. Timeliness of the investigation—memory issues ii. Special skills or experience of the one conducting the investigation iii. Was a hearing held iv. Objective problems: was there any motive to manipulate iv. If you cannot offer the evidence under B or C—You may not offer them under any other Business Records exception 1. It is a matter of constitutional policy a. It would defeat the purpose of the other rules 2. Issue over whether it should not be allowed in under ONLY the business record exception OR under ALL exceptions: a. Oates case: NO other exception allowed b. Other courts: allow as long as the confrontation rights of the D are in place i. Because if you have the opportunity to cross than the confrontation rights are not violated v. NOTE: cannot use these against a criminal defendant Absence of public Records or entry: 803(10): Records of religious organizations (11) Family Records: 803(13) Ancient documents: 803(16) Market reports, commercial publications (17) Learned treatises (18) Reputation concerning personal or family history (19) Reputation concerning boundaries or general history (20) Reputation as to character (21)

3. Residual Exception: 807: CATCH ALL a. RULE: an exception not specifically covered in 803 & 804, but having equivalent circumstantial GUARANTEES OF TRUSTWORTHINESS, is not excluded if the court determines: i. The statement is offered as evidence of material fact ii. The statement is more probative on the point for which it is offered than any other evidence AND iii. Purpose of the rule and interests of justice will be best served by admitting 1. must make it known to the adverse party sufficiently in advance so the adverse party has enough time to prepare b. Elements simplified: i. NEED ii. RELIABLE: 1. Things considered: a. Under oath, propensity to tell the truth b. Personal knowledge c. Motivations in making the statements d. Corroboration e. Credibility of the witness f. Availability of the witness for cross examination iii. NOTICE c. California does not have this exception d. Meaning of the exception & how far it can bend: 2 views i. Majority rule: If the hearsay is not specifically covered in a rule and has equivalent circumstantial guarantees of trustworthiness if it does not fit into the exception— 1. it can be let in here—if there is a need and it is reliable—it does not matter that it was addressed in another rule a. catch all ii. Minority rule/ near miss rule: thinks it should be reserved for situations that are not addressed in the rules 1. If the hearsay ALMOST fits one of the other exceptions it should not be allowed in here—there is a reason it does not fit in under the other 2. If the drafters anticipated these exceptions and required things— than if the hearsay does not match the requirements there should not be another way in e. Burden to show it is trustworthy is on the person who wants the exception used f. Common times the residual exception is used: i. Grand jury testimony when the government could offer immunity but they do not want to because they would rather have the grand jury testimony come in 1. Minority view—would not allow this in, because it is covered in an exception and there must be a reason it does not fit—so should not allow 807 to be a catch all

2. this type of testimony probably will no longer be admitted anyway after Crawford on the confrontation clause ii. Child abuse cases: child witness 1. Minority would argue: these statements were anticipated by the rule drafters and no exception was made for them to fit into so should not all in now 4. 804: Declarant Unavailable Exceptions: based on a heightened NEED (not reliability which is what 803 was based on) a. 804a: What constitututes unavailable: Must pass this before going on to part B: unavailability of the declarent's testimony not the declarant is important i. privileged by the court: 1. if given immunity it could eliminate the unavailability here 2. common law privilege 3. privilege recognized under federal rules of evidence 4. or fifth A privilege against self incrimination a. court must actually rule on the privilege ii. refusal to testify despite a court order to do so 1. you would probably be held in contempt here iii. lack of memory and you testify to this 1. 104(a) issue as to whether it is really memory loss iv. not present or able to testify because of 1. death (ultimate unavailability) 2. existing physical illness or mental illness 3. infirmity v. CATCH ALL: Absent from the hearing and the side that wanted the statement was unable to get the person to court by process or other reasonable measures (did they subpoena the person) 1. did they act reasonably in trying to get the witness to testify vi. **if you in any way caused the unavailability than you cannot benefit under this exception therefore the hearsay is not allowed in b. Part B: If unavailable under A above: following types of testimony are exceptions to the hearsay rule: i. Former testimony: (always involves two cases or hearings) 1. Elements required: a. The issues at the current proceeding are the same as they were at the prior proceeding b. The party against whom the former testimony is now offered was a party to the former proceeding i. Civil case it is ok if it is the party's PREDECESSOR in interest (see 3 below) ii. Criminal: the D must have been a D in the prior proceeding, if being used by the government, stricter because the D's life and liberty is at stake c. at the prior proceeding that party had an: i. opportunity (does not mean you actual examined, as long as the opportunity was there) AND

ii. similar motive (see 4 below) iii. to examine the witness the way it would examine the witness in this case if he was available d. the prior proceeding was under oath 2. Rational: if it satisfies the above it has all the attributes of live testimony except the fact finder's ability to judge the witness's demeanor 3. "Predecessor in interest" : CIVIL CASES ONLY different approaches a. Minority: privity: an inherited interest b. Majority: community interest (Lloyd case): Can be read two ways: i. Similar motive (factual identity between the two cases—gives a community interest: **This considers whether they have a similar motive problem with this interpretation is the rules of statutory interpretation say that no word in a statue is ambiguous—and this would make that so ii. Community interest—separate from motive—you must have been represented as part of a community, not just a similar motive under the suit 4. "Similar Motive": factors considered to see if it was similar a. factual issues: the key factual issues which the former testimony is offered about must have been important issues in the former proceeding as well SAME IMPORTANT ISSUES OF FACT i. if the key factual issues are different in this trial do not allow the past testimony b. Same side: adverse part must be on the same side of those issues as he was at the earlier testimony i. If now proving facts that before the adverse party wanted to disprove do not allow the past testimony c. Comparative importance of the issue at the two proceedings: sometimes the side might not have had a motive to develop the issue at the other proceeding if the issue was not as important as it is now i. Was there as similar degree of interest in prevailing on this issue—similar intensity to prove d. Nature of the proceeding: i. are they both trails or was one grand jury hearing ii. do they have the same potential penalties and risks

iii. same number of issues e. Burden of proof at the two proceedings: i. Criminal case—prosecution has the burden of proving beyond a reasonable doubt so the D would not have to prosecute as hard—but if it is then offered in a civil case—not the same burden 5. "opportunity to cross": a. adverse party can argue that the changed circumstances makes the motive to develop the witness's testimony different, or that she never had the opportunity to develop the witness testimony in light of new developments i. ex: at a grand jury proceeding you are not trying to prove a case but developing facts—not the same opportunity to cross ii. Statements against interest: 1. Rational: people do not make statements which they know are damaging to themselves unless they are satisfied for good reason that the statements are true a. When you start shifting the blame to someone else you lose the trustworthy guarantee—slippery slope 2. Standard: objective a. Would someone say this if it was not true b. Time sensitive to the moment they said itat the time it was made would it subject the person to civil or criminal liability 3. 3 categories of statements to consider: a. against interest—always allowed in i. If the statement exculpates the D—need corroborating evidence to allow these statements in b. collateral c. self serving— i. issues arise when there are combinations of the above 4. Must satisfy one of the following: a. Statement goes against a pecuniary or proprietary interest OR b. Statement subjects the declarant to civil or criminal liability OR c. Statement renders invalid a claim the declarant might have had against another OR i. Exception: **Statements tending to expose declarant to criminal liability and offered to exculpate the accused IS NOT ADMISSABLE UNLESS

ii. Corroborating circumstances clearly indicate the trustworthiness of the statement 5. Considering whether it was against declarant's interest: OBJECTIVE—look at context a. Look at the statement at the time it was made: i. Who was he speaking to *being in the presence of police might take away the trustworthiness of the statement ii. What was their interest in making the statement— was it self serving or was it really against their interest *are they pointing culpability to someone else— look at more closely whether it is self-inculpatory *are they trying to curry favor—by pointing at someone else—not reliable iii. Would a reasonable person in declarant's position have made the statement if it was not true * would a reasonable person know that by saying incriminating things about people in his conspiracy that it subjects him to liability— probably not so it was not self-inculpatory 6. What qualifies as the statement: What part of the statement is admissible: a. Majority view: Single declaration or remark—this allows the judge to separate parts of what was said into the part that was against interest v. collateral statements or self serving statements that blame shift . i. Only allow into evidence the self-inculpatory statements b. Dissent: thinks this view is too narrow and will not offer anything outside the admissions by party exception 7. IMPORTANT POINTS TO WATCH FOR: a. Timing—must go against interest when MADE b. Knowledge—do they know it is against their interest c. Was their a possible self serving motive d. Was part of the statement not against interest—collateral statements e. Near death—knows he is dying is it really against interest iii. Dying Declarations: 804(b)(2): statements under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstance of what the declarant believed to be his impending death 1. rational: a. reliability: no one wants to die with a lie on their lips b. need: if the person actually dies—ultimate unavailability

i. Rational of this rule has been questioned about whether a person dying is competent to make statements that courts should rely on not moments of clarity before dying (concern over whether they are competent enough under the stress of the situation) 2. Limited: in criminal cases limited to homicide cases ?? 3. Requirements: a. Declarant must have first hand knowledge of the facts asserted in his statement i. Judge will decide if there is a preponderance of the evidence to establish if their was personal knowledge b. Declarant must be unavailable as defined in 804(a) i. Although does not need to die for his unavailability c. Declarant must have believed his death was imminent and certain at the time he made the statements i. Shepard case: she was feeling better and everyone thought she would live including her—not enough must believe the death is imminent d. Statement must have concerned the cause or circumstances of his impending death i. Video clip where he writes DYLE in the rug—we allow reasonable inferences that he was trying to communicate who did it… ii. Judge decides if by a preponderance of the evidence this is what was trying to be communicated then let the jury decide iv. Statements of personal or family history: 804(b)(4) 1. involves statements of the declarant's own personal history AND 2. statements by a declarant involving someone else's family history 3. do not need personal knowledge but closely related so that they have accurate information v. forfeiture by wrongdoing: 804(b)(6): A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 1. Rational: a. None of the reliability is here—not based on reliability or need b. Basically in essence you waive your hearsay objections and your confrontation right objections i. Principle of equity: you should not be able to benefit from your own misconduct ii. D can waive constitutional rights 2. Issues that may arise:

a. Was the action a wrongdoing? i. Does not need to be a criminal act b. Acquiescence?  means to accept or comply tacitly or passively c. Undertaken with the intention of preventing the potential witness from testifying d. Burden or proof: party wishing to invoke the exception must persuade the judge by a preponderance of the evidence of the requirements i. 104(a) for the judge ii. No need for a heightened standard of proof this is the standard for all the other exceptions 3. Elements: a. Party causes potential witness's unavailability b. By a wrongful act (does not need to be criminal) c. Under taken with the intention of preventing the potential witness from testifying at future trial 4. Confrontation clause: and what it means to the hearsay exceptions: a. Only applies in criminal cases: D's right to confront accusers b. Development and history of the confrontation clause: Roberts1980 F: case of unauthorized use of credit cards. D claims GF gave her parents credit card to her to use. They put the GF on the stand at the preliminary hearing. She really helps the persecution at the preliminary hearing. Prosecution wants to use this at trial, when they cannot find her. R: The confrontation clause requires that witness's against the accused has a right to confront. Test they develop for when a hearsay statement can be admitted: 1) need unavailability AND 2) reliability of the statement -2 ways: *in a firmly routed hearsay exception (what does firmly routed mean?  court never defines) OR *guarantees of trustworthiness Wright1990 How should this two prong test be applied: What makes a statement reliable F: child was molested by the dad and the statements the child made are the statements they are trying to get in. Child made statements to her dr. about the abuse. The younger daughter said he abused her and she volunteered statements that he did it to the sister too. Context is that these statements took place during the test.  maybe not using 803(4)—because you cannot admit statements of fault in some cases  offered under the residual excep. Show need + reliability 1) Unavailable? Yes 2) reliability? * not a firmly routed exception so need to show the guarantees of trustworthiness: What can be considered for this evaluation: White1992 F: sexual child abuse of 4 year old child. She makes statements over the course of the night to babysitter, mom, police, and then to doctors at hospital. She is unable to testify at trial.  offered under FIRMLY routed hearsay exceptions: * excited utterances *made to dr TEST: 1) Here the court says we do not need to show unavailability—out of court statement is more reliable (cross examination is not important with statements like this) *these types of statements are admitted because of their inherent reliability * says unavailability only applies to 804(b)(1)former testimony—as a constitutional requirement under the confrontation clause  gets ride of unavailability as part of the test unless it is this one

Wright tells us how to do this

TC: was concerned with the procedure of the statements—how the statements were obtained SC: is concerned with the substance is the material itself reliable: ** Court says you cannot look at corroborating evidence can only look at the circumstances under which the statement was made Can look at: *Does the child have motive to make up a story? *Was the statement spontaneous or in response to questioning? * Do they consistently repeat the same story? (could view as corob)

exception (although it would still be required for hearsay purposes—but not for confrontation purposes) 2) now look at whether it is firmly routed: this was routed because it is an established/recognized exception  because it is an old exception  if it is a recognized exception in the federal rules—it is considered a firmly routed exception and you do not need to see if there are guarantees of trustworthiness Concurring opinion: cannot just change it to the testimony at trial * accepting a testimonial approach of the CC: only applies to written materials of things not testified at trial

c. STATE OF THE LAW TODAY: See handout i. RULE: Out of court statements by witnesses that are testimonial are barred under the Confrontation Clause567 UNLESS: the state can establish that 1. witness is unavailable AND 2. the defendants had a prior opportunity to cross-examine the witness a. REGARDLESS of whether such statements are deemed reliable by the court and hearsay exceptions are satisfied i. cannot just leave this to the laws of evidence to filter in and out statements if we do so it would render the Confrontation Clause powerless ii. Issue becomes what statements are testimonial? SC wants the lower courts to sort this out on their own but gives three possible definitions: 1. Narrow: Ex- parte in court testimony or its functional equivalent Confrontation clause provides that "in all criminal prosecutions, the accused shall enjoy the right… to be confronted by the witnesses against him" the right to cross examine the witness * issue discussed in Crawford: what is a witness against court could have read it narrowly to mean only those who actually testify at trail court could read it broad to include ANY statements made—all hearsay  this court chooses something in between 6 only time confrontation clause comes into play is if it is something being offered against the defendant—does not matter if it is being offered against the government 7 statements being offered for NON HEARSAY purposes do not implicate the Confrontation Clause cross examination does not affect these types of statements so their would be no help with the confrontation clause
5

a. Such materials as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarant's would reasonably expect to be used prosecutorially 2. Extra judicial statements contained in formalized testimonial materials a. Such as affidavits, depositions, prior testimony or confessions 3. Broad: Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available to use at a later trial a. Look at the intent of the parties and the circumstances when the statements are made b. Crawford case will really only make a difference if courts accept this broader definition of what is testimonial and what is not iii. Based on which ever test the court decides to use: 1. If testimonial: a. First must fit into a hearsay exception b. Then must pass the confrontation clause test: i. Declarant must be unavailable AND ii. Defendant must have had an opportunity to cross examine 1. UNLESS: a. Dying declaration exception i. Ct justifies because the routes are SO deep ii. But you could also justify it is like a waiver because you killed the person b. Forfeiture by wrongdoing: you waived your CC rights by killing the person 2. If non-testimonal: a. Courts are applying two differed standards—CC does not apply i. Just apply the hearsay rules of evidence ii. Applying the old test from Roberts 1. This does not really make sense because the CC does not apply 3. Biggest impacts of this change: a. Will be with the residual exception—allowing grand jury testimony in: i. These statements were ok because reliable because under oath but they are definitely even under the narrow definition testimonial so the CC would apply and cannot allow in unless the person is available for cross. d. Joint trails and the confrontation clause: Bruton Case p 555)—really only applies if there is an individual admission by one defendant and they have a joint trial i. What happens in a joint trial when there is evidence that is admissible against one defendant and not against the other defendant? 1. In a joint trial, an out of court statement, even with a limiting instruction (under rule 105) as not to be used against one defendant cannot be admitted without the right to cross examine by the D it is not supposed to be used against. a. WHY: it is too difficult for the jury to follow a limiting instruction, so they will inevitably be using it against the D, and it is not fair if he did not have a chance to cross and bring out the weaknesses in the statement. b. This applies:

i. With an out of court statement made by a witness who is not present at trial to cross ii. Applies to individual admissions of one D and not the other if that D does not take the stand 2. Other options in using the evidence that does not violate the confrontation clause: a. Sever the cases b. Redaction: delete all references to the codefendant i. This is not always effective because of guilt by association c. Bring the person to trail/ or have the codefendant testify at trial e. Compulsory Process: i. Generally: 1. This is the right to call witnesses on one's own behalf ii. When all else fails—in a criminal case— 1. R: Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice 2. It is the Defendant's constitutional right to present exculpatory evidence regardless of the rules of evidence being applied (DUE PROCESS RIGHT) a. Otherwise you are depriving a defendant of his due process rights b. When two rights are at conflict like this the court should look at: 1. reliability of the evidence the defendant wants to introduce 2. if not allowed does it violate his due process rights ii. Will likely apply to hearsay that is inadmissible or iii. Impeaching your own witness—Cambers they were allowed to do so even though it went against the rules of evidence 5. RELEVANCE continued: particular relevancy rules 407-411 a. Generally: these rules are Congress's specific application of 403 balance i. these rules do the 403 balancing test for us, certain situations the evidence will ALWAYS be unfairly prejudicial and these rules tell us when ii. Policies behind: social policy not truth or reliability iii. Balance of two interests: 1. trying to get at the truth but balancing it with an important policy concern of the courts b. 407 SUBSEQUENT REMEDIAL MEASURES: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controvered, or impeachment i. Rational: Safety 1. social policy of encouraging people to take, or at least not discourage them from taking, steps in furtherance of added safety 2. relevance: is the repair probative of negligence or maybe there are other motivations at work ii. Remedial Measures defined: pretty much everything but post accident reviews or studies done by the party

1. When a third party makes the remedial measures the rule does not apply a. Third parties will not be dissuaded from making repairs just because evidence of those repairs might be offered against someone else— b. but the issue will become whether or not this is even relevant—403 balance test iii. Timing: the repair must take effect AFTER the accident 1. A remedial measure that takes effect after purchased BUT before the accident that is now subject to litigation is not included a. EX: problem 2.1 p 85 you can bring in the evidence that the wolf was chained in the second attack because the chaining took place BEFORE the accident. This rule only applies to measures taken after the accident i. There is no loss of policy by letting a jury hear about a false repair iv. BREAK DOWN: If there is a subsequental remedial measure8: 1. BARRED: to prove a. Negligence b. Culpability c. Conduct d. Product defect e. Or need for a warning 2. ALLOWED: for anything else—this list is illustrative not exhaustive a. The following things MUST BE CONTROVERTED: i. Ownership ii. Control iii. Feasibility must be controverted (denied) 1. 2 views: a. Narrow: If agreed physically possiblenot controverted i. Was it physically, technologically, economically possible? If they agree yes it was physically possible then the issue is not controverted and the evidence of subsequent remedial measures is not allowed in. b. Broad: Must agree with the choice to not be controverted i. Value judgment: not just was it physically possible to do but was it a good choice ii. "Value, effectiveness, and over all utility: If there is a disagreement in judgment, as to whether it was the best thing to do it or not do it then the issue would be controverted and the evidence of subsequent remedial measures would be admissible. 2. If allows in remember to give a limiting instruction on the purpose it can be used for! b. Impeachment i. Very specific: "In order to impeach his opinion that it was unsafe on November 1st 1992, there need be evidence that he didn't think it was
8

1997 amendment makes it clear that this rule applies to STRICT PRODUCTS LIABILITY CASES

unsafe on November 1st 1992, not what he thought in January of 1993" p 87 c. Keep in mind that although these things are not excluded by 407—they can still be excluded under 403!!! v. Issue of controverted: 1. If parties stipulate to a fact then it is generally no longer controverted c. 408: COMPROMISE AND OFFERS TO COMPROMISE: evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a value consideration in compromising or attempting to compromise a claim which was DISPUTED as to either validity or amount IS NOT admissible to prove liability or invalidity of the claim or its amount. Evidence of CONDUCT OR STATEMENTS made in compromise negotiations is likewise NOT admissible. This rule DOES NOT REQUIRE EXCLUDSION of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule does not require exclusion when the evidence is offered for another purpose… i. Rational: 1. Encourage settlement of lawsuits—the court system depends on 96% of lawsuits settling. 2. evidence is irrelevant since the offer may be motivated by a desire for peace rather than from any concession of weakness of position ii. Scope: 1. applies to completed compromises and 2. offers to compromise 3. disputes over amount 4. disputes over validity 5. applies to either person the one making or accepting or receiving the offer iii. RULE BREAKDOWN: Compromises and attempts to compromise a DISPUTED claim 1. BARRED: a. To prove liability b. To prove invalidity of a claim 2. ADMISSIBLE: to prove other things—not exhaustive/ just illustrative a. Witness bias i. EX: P1 and P2 sue D. D settles with P1 on condition he testify on D's behalf against P2. 1. He has now gained an interest in the litigation—this settlement is allowed in to prove BIAS only judge must use a limiting instruction that it cannot be used to prove fault but bias on the part of P1. 2. third party settlements b. undue delay or i. evidence of settlement negotiations as to why there has been a dely in the proceedings c. obstruction of criminal investigation i. EX: Jackson case, where he was being investigated for molestation and suddenly the boy stops cooperating with police…if the settlement could prove misconduct like buying the witness's silence than this evidence can come in.

iv. Key points: 1. DISPUTE: there must be a dispute a. Sometimes you might settle before a dispute even arises in this case the rule does not protect compromise negotiations i. Ex: car accident X rear ends Y and X runs out and says it is all his fault and what can he do to fix it. This would not be barred under 408 2. Extends past the actual fact of settlement but to ALL STATEMENTS made as a part of settlement a. The protection is of the communication b. Dome comes down around the settlement 3. If the evidence would have otherwise been admissible—just because you talk about it during negotiations does not magically transform it into protected 4. Does not exclude apologizeif they are not in the course of settlement d. 409: PAYMENT OF MEDICAL AND SIMILAR EXPENSES: evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. i. Rational: 1. Such payment or offer is usually made from humane impulses and not from an admission of liability and that to hold otherwise would tend to discourage assistance of injured persons. a. There is no reason to exclude the statements surrounding the offer to pay the medical bills ii. Important distinctions from 408: 1. 409: DOES NOT exclude statements surrounding the offer to pay medical expenses 2. 409: DOES NOT require a dispute iii. RULE BREAK DOWN: Medical expense paid or offered to be paid: 1. BARRED a. To prove liability 2. Admissible for any other purpose iv. Example: car accident and you say I'm sorry it was my fault I will pay your medical bill=> the fact that you said sorry gets in but the part that you offered to pay bill is out e. 411: LIABILITY INSURANCE: evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose such as proof of agency, ownership, control, or bias, or prejudice of a witness. i. Rational: 1. Simply irrelevant if offered to prove negligence 2. Fear that a jury might unfairly penalize insurance companies because they have deep pockets 3. Want to encourage people to have insurance—not penalize for it ii. RULE BREAKDOWN: liability insurance or lack there of is 1. BARRED: to prove a. Negligence or b. Wrongful action 2. Admissible: for other things such as: a. Agency

Ownership Control Witness bias OTHER THINGS TOO: i. Williams v. McCoy: the insurance was not offered to prove negligence but offered to rebut the defense's claim that she was a money hungry litigant. iii. Still can use 403: for using insurance to show other things 1. See problems 2. 5 and 2.6 f. 410: INADMISSIBILITY OF PLEAS, OFFERS OF PLEA, PLEA DISCUISIONS, RELATED STATEMENTS: except as otherwise provided in this rule, evidence of the following IS NOT, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussion: 1. a plea of guilty which was later withdrawn 2. a plea of nolo contendere 3. any statement made in the course of any proceeding under R11 of criminal procedure or 4. any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn ii. However, such a statement IS ADMISSIBLE 1. in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought, in fairness, be considered contemporaneously with it, or 2. in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath on the record and in the presence of counsel iii. Rational: 1. The system needs cases to settle encourage settlement negotiations iv. RULE BREAKDOWN: 1. The following are BARRED against the DEFENDANT if he made the statements: a. Guilty plea later withdrawn b. No contest plea c. Statements in plea proceedings d. Statements in plea talks with a PROSECUTOR i. Negotiations where there is no plea ii. Negotiations where there is a guilty plea later withdrawn 2. But they are admissible only in these two circumstances: a. To complete partial account of plea discussions i. R106 the rule of completeness b. In perjury prosecution if statement under oath, on record, and counsel was present 3. NOTE: a guilty plea (or conversations that lead to the plea)—is admissible a. WHY: it is not a bargain deal—you must voluntary and knowingly state this plea and there are serious consequences that attach v. Important points: 1. The discussion must be made with a prosecuting attorney

b. c. d. e.

a. At the very least it must be reasonable under the circumstances for D to have believed that the police were operating on the part of the attorney b. Need at least an agency relationship with the prosecuting attorney 2. Only barred for use against the DEFENDANT a. But with use against the prosecution it might be inadmissible under 403 i. Balance test: 1. How probative—if it is a big difference like murder one to involuntary manslaughter—it might be pretty probative 2. P2.7 3. No exception for IMPEACHMENT purposes a. WHY? Fear over chilling plea negotiations b. What the prosecution is doing now: has been ruled OK by the SC i. Make the defendant sign a waiver that the plea negotiations will not go forward unless they sign their right away for these statements to be used against them for impeachment purposes in court. 1. Majority: felt it would encourage truth telling 2. Dissent: worried over where the line would be drawn—would it eventually extend to content? 6. Character Evidence: RULES 404,405, 412-415 a. Generally: i. General chain of questioning: 1. Is the character evidence relevant under 401? a. If yes than go on 2. Why is the character evidence being offered? What is the purpose of the evidence? a. To prove the merits of the claim proving guilt or innocence: i. YES: Now which of the following is it being used for 1. Propensity to show that the person acted in conformity with the character evidence presented a. If yes it is generally excluded unless it falls within the i. 404(a) exceptions or ii. 413-415 exceptions b. General rule: you cannot admit evidence of a person's character trait in order to prove they acted in conformity with that trait 2. Non-propensity purpose: must fit in 404(b) a. Motive b. Intent c. Plan d. Preparation e. ID f. Absence of mistake 3. To prove an element of the case: must fit within 405(b) here you can even present specific instances of character (not limited to opinion and reputation) a. Generally—criminal offenses do not work here because people's character are not elements of the crime

i. **maybe with being a felon—repeat offenses b. Examples of the civil context: i. Defamation ii. Child custody cases iii. Wrongful death cases—value of person's character b. Impeachment purposes i. then must fit into 404(a)(3): 1. R607—who may impeach 2. R608a: opinion and reputation evidence of character to show character of untruthfulness 3. R608b: specific instances of conduct to show character of untruthfulness 4. R609: past convictions to show character of witness for impeachment 3. Are they presenting the evidence in the proper form? R405 4. Did the evidence come in first by the proper side (defense or prosecution) 5. Even if it is relevant and gets through—check 403 a. is the character evidence unfairly prejudicial? ii. 404(a): Character evidence9 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 (unless there is a rule that sets out otherwise) 1. SEE page 140: Character Evidence Route of Admissibility chart 2. This applies despite the relevancy of the evidence  not allowed to go through the propensity box. 3. Forbidden inference: present evidence that shows he has a certain character and that he acted in conformity with this character which proves he committed the crime a. SEE page 133 i. EX: Zachowitz because he knows that guns are dangerous and has guns therefore he acted in conformity with this dangerous character b. Six exceptions to the general 404(a) rule: TIMES you CAN go through the propensity box i. 404(a)(1) ii. 404(a)(2) iii. 404(a)(3) iv. 413 v. 414 vi. 415 4. But there are routes around the propensity box if you are not proving he acted in conformity with a specific character trait a. SEE page 135

9

example of a situation that might be different from normal character evidence—the clip where he asked him how many men he killed at war. This is being offered to prove he killed before and therefore he would kill again. But it is different because it is the army—not acting violently murdering and therefore would murder again. Would it make it more likely that everyone in the army would kill? This is an example of character evidence that does not really have the unfair prejudice attached to it…

b. Rule 404(b)—is another way to use the evidence which gets around the propensity box i. To show other crimes, wrongs, or acts iii. Rational: 1. although character evidence may be probative in some cases it is extremely prejudicial a. concern that the jury will overvalue the evidence and convict the accused for who he is rather than for what he has done b. concern that the jury will convict, not because guilty for the crime charged but must have gotten away with other crimes iv. Methods of proof allowed to prove character (when it is allowed): R405(a)(b) a. 404 tells us when character evidence is allowed b. 405 tells us the form the evidence is allowed in as 2. (a): 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 a. Reputation evidence: if used a foundation must be laid establishing the witness's qualifications to testify of his reputation in the community i. Where the person lives or works or goes to school ii. Knowledge of the person's reputation at the time of the offense NOT at the time of trial –Personal knowledge required b. Opinion evidence: must lay a foundation showing that the witness is sufficiently acquainted with the accused or victim to have formed that opinion c. WHY NOT specific instances: i. These are the most prejudicial and we do not want a trial with in a trail to prove whether these things really happened or not 3. (b): 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 b. EXCEPTIONS to character evidence rule: i. 404(a)(1): Accused can open the door allowing evidence of character in 1. RULE'S language: Character of accused: evidence of a pertinent trait (depends on the case) of character offered: a. by an accused, or b. by the prosecution to REBUT the same, or c. if evidence of a character trait of the VICTIM of the crime is offered by an accused and admitted under 404(a)(2), evidence of the same character trait of character of the ACCUSED offered by the prosecution i. if accused offers something on the victim—then the prosecution can offer something on the accused (based on the same character trait)10 2. Limitations: a. The character evidence offered MUST be relevant to the offense charged i. "law abiding" character evidence—is dangerous because it opens the rebuttal pretty wide
10

rational: we need someone to act on the victim's behalf—equity (applies to other cases beside homicide cases)

ii. EX: if charged with entrapment—you would not be able to introduce evidence of the characters peaceful nature iii. EX: peacefulness has nothing to do with bribery b. 405(a)—limits the form to opinion and reputation evidence (no specific acts) c. There will be a limiting instruction to the jury d. Must be offered by the ACCUSED FIRST! 3. Once the accused opens the door what can the prosecution do? 2 options a. Direct examine their own character witness— i. Can only use opinion and reputation b. Cross examine the accused character witness: i. Here you can use specific instances BUT you can only ask if they know about them and you are bound by the answer 1. You are not PROVING the instances11 2. You are using them to test the: a. Credibility (how well do they really know this person) and b. Judgment of the character witness (they know and they are lying) ii. When bringing in these instances there must be a good faith belief that they happened and an ability to show the judge what you are basing the belief on. Need a basis to back up your good faith belief iii. Example: p3.14 p221: 1. She says I would never shoot anybody on direct… a. Viewed two ways i. She opened the door ii. She is acting as her own character witness 2. Prosecution can then say—you've shot other people haven't you a. This is using impeachment by prior inconsistant statements 4. Application of these exceptions in CIVIL CASES: a. 2 Views: i. Majority: Only applies in criminal cases 1. looks only at the language of the rule uses the word accused which can only apply to criminal (TOWERS) ii. Minority: applies to civil cases when the underlying offense is a criminal based offense (PERRIN) 1. One looks at the intent behind the rule the policy of the rule is so clear that the courts should advance the interest behind the rule ii. 404(a)(2): character of the alleged victim: evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of the character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor:
11

"since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness's standard of opinion of the reputation of the defendant is being tested."

1. Form allowed: reputation or opinion evidence 2. ELEMENTS: a. Character evidence of a pertinent character trait of the VICTIM b. Must be offered by the accused or prosecution to rebut i. Prosecution can rebut two ways: 1. character evidence of peacefulness of victim OR 2. offer character evidence of the accused—of the same trait he offered up about the victim c. Or evidence of peacefulness of the victim—if alleged to be first aggressor—IN HOMICIDE CASE 3. 2 instances this exception applies: a. self defense in homicide or assault cases: i. If presented to show the accused state of mind it is NOT presentation of character evidence and does not need to fit through this exception 1. here the issue would fall under the general relevance rules 401 and 403 ii. If presented to show that the victim was the first aggressor this fits under this exception 1. but once the defense opens the door and introduces character evidence that the victim was the first aggressor then a. prosecution can rebut by showing that the D was violent (accused character) or b. the victim's character 2. In homicide case special rule: can rebut defense's claim that the victim was the first aggressor by introducing character evidence of the victim to show actually peaceful once the defense introduced character evidence that the victim was the first aggressor (even when character evidence was not introduced—prosecution can introduce it first to rebut the claim of first aggressor) 3. Elements: a. Homicide case b. D claims self D c. Prosecution can then offer character evidence to prove that the victim is peaceful b. issue of consent in rape cases: here R412 applies over this rule i. generally you cannot introduce this evidence unless it fits into the exceptions iii. R412: Sex Offense cases: rape shield doctrine 1. Rule: Generally excludes victims past sexual conduct a. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in section (b) & (c) i. Evidence offered to prove that any alleged victim engaged in other sexual behavior ii. Evidence offered to prove any alleged victim's sexual predisposition

2.

3.

4.

5.

b. Exceptions: (but 403 balance still applies) i. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: 1. 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 the semen, injury, or other physical evidence. 2. 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 3. evidence the exclusion of which would violate the constitutional rights of the defendant ii. In civil cases, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm by any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. Rational: a. Want to discourage the tendency in rape cases to try the victim rather than the defendant b. Social policy Want to encourage victim's to report the crimes As it applies in criminal cases: 3 major exceptions a. Evidence that explains evidence by pointing to someone else: b. Prior sexual conduct with the accused to show consent c. Catch all—if a and b do not cover all the constitutional requirements 412(b)(1)(a): excepts evidence of specific instances offered to show that another person was the source of semen, injury or other physical evidence: a. this exception goes to identity i. but what if—like in the Kobe case they find his semen and others on her panties—this is not getting away from his identity 1. problem is that here you are trying to show consent—because she sleeps with a lot of people—but you are using the id exception ii. Example: when he was there a week earlier—to explain his finger prints— 1. not really going to identity but that it was him at a different time 2. but the policy behind the exception is to show why the evidence is there 412(b)(1)(B): excepts evidence of specific instances of sexual behavior between the accused and the alleged victim a. usually this is limited to the issue of consent b. Example: when the emails talk about her rough sex life i. To prove she consented to this rough sex—but here the emails go beyond their relationship UNLESS ii. These are "prior sexual behaviors" between them by stating fantasies

1. advisory committee notes—includes sexual fantasies and dreams 6. 412(b)(1)(C): constitutionally required exception a. Example of when it might fit here: an attempted rape…until he realized she was no longer consenting. Attempted rape is a specific intent crime i. He wants to introduce evidence that she is promiscuous and that is why he thought she was consenting there is a heightened need for this evidence to present it to show his mensrea since that is an element of the crime ii. This is different if an actual rape accord because with an actual rape state of mind does not matter 7. Credibility of victim is Not protected under 412: false allocations of rape these go to the victim's credibility a. Not using it on the merits to show whether or not she was raped—but to show that she is not credible because she has made false allocations b. 104b questions: would a reasonable juror find the past events to have happened i. But still check 403,404,607, 608 ii. R608: how to use evidence for impeachment purposes: 1. can use specific instances but cannot use extrinsic evidence— evidence outside the witness limited to asking the witness 8. 412(b)(2) Evidence of the victim's character in civil cases: is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. a. Evidence specific to reputation is admissible ONLY if it has been placed in controversy by the alleged victim i. This is because reputation evidence is unreliable b. Party seeking to admit this evidence has the burden of proof—rule is in favor of inadmissibility c. Default position is to disclude 9. PROCEDURE for admissibility of this evidence: a. Written motion at least 14 days before trail—stating its purpose for being offered b. All parties and the victim must be served motion c. Court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard iv. Other exceptions to the propensity bar: R413,414,415 Sexual Assault cases 1. Generally: allows prosecutors and civil plaintiffs to offer evidence of D's other acts of sexual assault on any matter which they are relevant INCLUDING the propensity inference 2. Evidence of character admissible of similar crimes in a. sexual assault, b. child molestation, and c. in civil cases concerning sexual assault and child molestation 3. Rational: these rules are based on policy concerns, they are politically created not through the rules enabling act a. Ideas behind this evidence being admissible: i. Recidivism: this is type of crime that is a repeat offender

ii. Bolstering: want to lend credibility to victims testimony that might be hard standing alone iii. Also the difficulty in obtaining proof in these cases b. Other sides of the argument: i. There are crimes that are more likely to be repeated than this ii. In society today we know these things happen regularly so likely to give the victim's testimony credit iii. There is physical evidence in these cases that identify the abuser and syndrome evidence to show that the person acted in conformity with someone who was abused iv. This type of evidence can be very prejudicial 4. Issues that arise: a. By what level of proof do the prior acts need to be proved? i. Low standard 104b: sufficient evidence of the past offense that a reasonable juror could find that it happened b. How does 403 apply to these rules? i. Argument that it does not apply: because of the language "all relevant evidence is admissible" there is no conditional language in the rule ii. Argument that it does apply: 1. there is only one rule that it does not apply to and that rule uses the word SHALL, and these do not use the word SHALL so they are still subject to 403 balancing test 2. it would raise constitutional problems if not subject to 403 a. due process b. equal protection 3. When applying 403 balance factors considered: a. Similarity of the offenses b. Time of the offenses c. Frequency of the prior acts d. Lack or presence of intervening events e. To what degree do we need the evidence 4. Most California cases do not exclude this evidence based on 403—and never been reversed on appeal c. Routes around the Propensity Box: 404B i. Language of the rule: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, id, or absence of mistake or accident, provided that upon request by the accused, the prosecution un 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 1. list in the rule is illustrative not exhaustive ii. Generally: 1. This rule provides that evidence of other crimes, wrongs or acts: a. May be admissible for another purpose (other than to prove character) i. Things it might come in to prove:

1. motive 2. opportunity 3. intent—must be an issue in the case 4. preparation 5. plan (make sure separate acts) 6. knowledge 7. identity 8. absence of mistake 9. absence of accident 10. MO b. Typically the evidence is being offered for one of the following purposes: i. To show that the accused was the actor (ID) ii. To show that the accused possessed the requisite mental state (mens rea) iii. To show that the crime has been committed (actus reus) iv. When the offense cannot be separated from the other act (res gesta) 2. Important points: a. Not limited to criminal acts—can be other acts as well b. The act to be admitted for evidence does not need to be similar to the act charged c. The act can be subsequent to the charged offense d. Is not limited to criminal cases—applies to both civil and criminal cases e. There is a notice requirement prosecution has the burden of providing notice of this evidence f. 405 (a) does not apply—allow in the evidence of specific instances g. It does not matter if what is being proved is not an element of the crime, as long as it is at issue in the case iii. Steps taken when seeing if the evidence should be admitted under 404(b) 1. Judge makes the initial inquiry into whether it passes the 104b standard: a. Is their sufficient evidence that a reasonable jury could find it to be true? i. Huddleston standard: prosecution must offer SOME evidence that the defendant committed the other act 1. the evidence must just be prima faca: could the jury reasonably find this conditional fact by a preponderance of the evidence—if yes the judge allows it in (this info is easy for the jury to disregard if they do not think it is true) ii. Then the jury decides if the act happened: 1. they use a preponderance of the evidence standard—in determining if that particular event took place in the past iii. Court thinks this is the type of evidence the jury can easily disregard if they think it is not true iv. Ex: want to bring in past criminal acts to which you were acquitted for: 1. if the judge finds that reasonable juror could find it to be truethan it would be admissible because the standard of proof was higher in the criminal case than this standard. The other side can always introduce the fact that he was acquitted on cross 2. Is it offered for a non-propensity purpose—in order to fit under 404b

iv.

v.

vi.

vii.

3. 401: is the issue a material issue for which the evidence is being offered to prove a. example: if you want to offer it to prove intent and no one is challenging intent it would not be relevant b. Must decide what is at issue in this case: i. Will this evidence advance the key issues? ii. If the D stipulates to the issue that the evidence is trying to prove  it will not fit under 404(b) because it will no longer need to prove that purpose 4. 403 balance: the probative value of the evidence balanced against the risk that the jury might ignore the limiting instruction and make the prohibited character inference a. in favor of admission must find undue prejudice i. Here look at the limiting instruction will it be beneficial? b. When the evidence is not offered as a specific actthe value of the evidence will be less and it would be more likely to be unfairly prejudice i. Ex: video clip where GF says that her BF, now on trial for murdering his new GF, said he knew how to kill someone without leaving a trace 1. this is not very probative because it does point to a specific act where he did it PROOF OF KNOWLEDGE:NOTICE 1. Generally: some crimes not everyone has the knowledge to commit: a. Computer hacking b. Making bombs i. The more high tech the crime the higher value of this evidence 1. ex: 3.2 that he knew how to deal drugs—maybe not that hard to know how to deal drugs and therefore this would not pass the 403 balance because it is not very probative 2. Inferential steps: he did it before, therefore he knows how to do it, therefore he could have done it this time PROOF OF COMMON PLAN OR SCHEME: ?? 1. majority view: is that similarity between the two crimes is not enough, they must be mutually dependent series of events—the charged conduct must be part of a larger scheme 2. TEST: do the other offenses tend to establish a preconceived plan by which the charged crime was committed. a. The crime must, therefore, be so related in character, time, and place of commission as to establish some plan which embraces both prior and subsequent criminal activity and the charged crime b. Some over all sceme PROOF OF MOTIVE: 1. generally: you can offer evidence to prove motive even though it is not an element of the crime because it is part of the case: a. look for the timing of the motive b. the past acts were D's motivation for committing this crime—these acts happened in the past and they created a reason for the charged offense c. P3.4, 3.5 PROOF OF ID:

1. Generally: a. Motive, knowledge, preparation, opportunity can be probative of ID i. P3.6, 3.7, 3.8 2. MO: inference is that "this could not be anyone else's crime" this must be so strong that it overcomes the jury's temptation to engage in propensity a. to show this must establish two things: Trenkler case p 150 i. really close similarity between the two acts 1. usually the court prefers that there is more than two acts being compared unless it is such a high tech case—the crime is so unique that you do not need more similar acts ii. signature: something distinctive about both acts 1. this excludes the possibility that someone else committed the crime b. always be concerned about a copy cat 3. REVERSE MO: Stevens case p 159 a. Generally: the D is saying that it is so similar to a crime which was proved to not have been his or to have been someone else's that this could not be him i. It is only a question of relevance—is the evidence relevant? 1. the standard of proof is lower because with reverse MO there is not really a chance of unfair prejudice against the state 2. only concern would be waste of the courts time or confusion to the jury viii. NARATIVE INTEGRETY: RES GESTAE 1. generally: here it is usually hard to exclude other acts that are interwoven with the charged offense this evidence is explanatory and usually gives context to the charged offense a. try to limit the amount of information to give context b. P3.9 2. evidence is explainitory ix. PROOF TO SHOW ABSENSE OF ACCIDENT: 1. Generally: this relates to one's own conduct…could they really have made the same mistake twice? a. How many times proves it could not have been an accident-depends on the nature of the crime b. P3.10 c. Dog example: be careful with a fine line between absence of mistake and making a propensity inference x. DOCTRINE OF CHANCE: the unlikelihood that the events could have happened without D is too high 1. It is a statistical argument that it has happened too many times for it to be a matter of change a. brides in the bath case d. Reverse 404(b): when the defendant wants to prove a third party committed the crime by showing past acts of the third party to show that the third party had the intent, motive, id, or something else that proves he committed the crime i. This would come into play with a case of false ID

ii. There is no 403 issue—because letting this info in cannot be unfairly prejudicial to the government 7. HABIT EVIDENCE: 406: a. Language of the rule: evidence of 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 bait or routine b. Elements: i. Nature of the conduct: the more volitional the hard to prove habit ii. Adequacy of the sample iii. Uniformity of response--regularity c. Is it a HABIT: ask yourself three things when considering whether it is a habit? i. What is the nature of the conduct? The more volitional it is the more likely it is NOT habit 1. Examples of volitional conduct: a. Drinking b. Violence i. This are usually volitional but could be habit based on the facts ii. The more specific these instances are—more likely character/ if more general –more likely habit ii. Is their an adequate sample? How many instances are being presented where this person acted this way, are their any instances where he did not act this way? 1. Dr prescription example—there were 8 examples, this is likely not enough considering how many patients he probably sees each day iii. Does he always respond the same way? Is their a uniform response 1. certain conduct—needs more uniform result for it to be habit than other conduct d. Generally: i. Evidence of a habit to prove that someone acted in conformity with this habit is admissible ii. Distinguishing between character and habit: 1. What is habit: "the person's regular practice of meeting a particular kind of situation with a specific type of conduct"—it becomes semi automatic a. Specificity: the more specific the more likely to be habit b. Repetition: does this occur regularly? i. Fair number of times ii. Uniformity of responses in the times it occurs 1. there cannot be many situations in which the situation arose and the "habit" was not followed for it to be admissible c. Duration d. Semi automatic conduct i. Less volitional it is more likely to be habit iii. Form of the evidence: 1. specific instances reported by a witness who saw the instances—is the best way to show 2. Opinion can be admitted: NOT ALLOWED to admit reputation iv. With a business: practice of the business can be used to show that was the habit of the business and therefore it must have occurred with the event at issue: 1. Requires:

a. Person testifying must have personal knowledge, but does not need to be the person who actually carries out the practice 2. example: to establish notice was properly mailed on a particular day, the secretary to the attorney's office can testify that it is routine that she mails the items at 4 pm every day e. Still subject to 403: once 406 decides it is habit and therefore relevant—it must still survive the 403 balance test i. Is it to time consuming to establish the habit? 8. HOW TO DEAL WITH THE WITNESSES: a. Witness competency: who can testify? i. R601: THE RULE (very low standard) Presumption of competency/ 104(a) for judge 1. every person is competent to be a witness except as otherwise provided by the rules. a. If state substantive law governs—then state competency standards apply b. If a party wishes to exclude a witness from testifying the burden of prove is on them c. traditionally it was a much stricter approach because we did not trust the jurors to determine whether or not a witness was competent ii. Three basis things are required for a witness to be competent to stand trail: 1. Oath: R603—must understand and promise to follow the duty to tell the truth a. Child witness—judge outside of the jury determines whether the child knows the difference between telling the truth and lie and what happens when you lie i. It is case specific—there must be a finding that the child would suffer damage if he was to testify in front of the D 1. because there is good trauma which is what every witness should have with facing the defendant—this way it encourages them to tell the truth b. Two things it must do i. Awaken the witness's conscious ii. Impresses on the witness's mind the duty to tell the truth and the consequences of not doing so: commits to doing so 1. flexible in how it does it a. "I understand that I must tell the truth. I agree to testify under penalty of perjury. I understand that if I testify falsely I may be subject to criminal prosecution" this was enough although he made not commitment to tell the truth 2. Personal Knowledge: R602 as to the matters testifying about (if not it is a hearsay or a speculation objection) a. 104(b) Judge decides if a reasonable juror would think the witness has personal knowledge if yeas allow them to testify and let the jury decide i. conditional relevance b. Experts do not need personal knowledge c. Hypnotically refreshed memory: Rock v. Arkansas i. Issue because of the D's right to testify on his own behalf, but is this really personal knowledge

ii. Cannot per se exclude this: do a balance test of the D's right to testify on their own behalf v. the risks of the hypnotically refreshed memory: asking if it is reliable 1. What are the risks: look at how the evidence was produced: a. Was the person conducting it impartial b. Was it not suggestive—video taped c. Avoided leading questions d. Is the refreshed memory corroborated with other evidence 3. Cognitive Capacity: ability to communicate what you know a. Someone under the influence of drugs: still had the cognitive capacity to be a witness b. Child witnesses: 3509 statute handout i. presumption they are competent to stand trail ii. special safeguards in place for the child—to do it outside the presence of the defendant 1. balancing the child's issue with the confrontation clause rights of the defendant iii. R605, 606: Judges and Jurors ARE NOT allowed to be witnesses in a case 1. exception: if there is juror misconduct DURING the trail 2. no inquiry into jury misconduct after the trail (unless outside source) 3. W/ Judge do not even need to object to it/ W/ jury must object iv. Ethical Limitations of lawyer acting as a witness: 1. cannot be a lawyer and a witness UNLESS: a. it is an uncontested issue in the case b. it pertains to legal fees (but this looks bad in your own case) c. if it is a unique situations that if you were to withdraw at this point it would be substantially hardship on the client 2. other lawyer in the firm can be a witness in your case b. Mode and order of the presentation of the evidence by the witness: R611 i. The rule: 1. (a) control by the court: the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to 1) make the interrogation and presentation effective for the ascertainment of truth, 2) avoid needless consumption of time and, 3) protect witnesses from harassment or undue embarrassment a. truth seeking b. time c. protection from harassment of the witnesses 2. (b) scope of cross: cross should be limited to the subject matter of the direct exam and matters affecting credibility. The court may in the exercise of discretion, permit inquiry into additional matters as if on direct exam a. WHY: i. party autonomy: let the party decide what their witness says and if you want the witness to address something else call him as a witness on your side

ii. party preparation: otherwise it would run the risk that you call them for a limited purpose and other things you do not want to come up could come up 3. (c) leading questions: should not be used on direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross a. Leading question a question that suggests the answer b. Ok to lead on direct: i. When laying the foundation ii. If it is a young, forgetful, or old witness iii. Hostile witnesses c. Refreshing the memory of a witness: R612 i. Difference between past recollection recorded and refreshing a witness's memory: 1. Refreshing under 612: a. IS NOT evidence, only helping the witness remember b. Can refresh with anything, as long as it stimulates the witness's memory c. Must first hear that the witness forgot i. If memory loss is fake—this is your opportunity to impeach the witness 2. Past recollection recorded: 803(5) a. This is actual hearsay evidence ii. When can you refresh their memory: 1. While testifying: if you refresh while testifying, you must show the other side what you used to refresh, the other side may then enter it as evidence or use it on cross a. This gives the other side the opportunity to show bias or witness coaching 2. Before testifying: this would be part of the witness preparation a. When does the court order the production of the documents: court's discretion i. What happens when there is a conflict with work product and production of the documents that refreshed the witness' memory under 612: 1. Issue arises with OPINION work product: this is usually provided an almost absolute protection: SPLIT a. Waiver of the work product privilege protection i. Risk here—forces the lawyers into a different way of practicing to avoid letting the other side have the benefit show them ALL the documents b. Not waiver: disclosure of these documents is required ONLY in the interest of justice: must show 3 things: i. Lawyer used the documents to refresh ii. Witness relied on the documents in his testimony specific, not broad here, did the particular documents help them remember PARTICULAR facts asked about iii. Production is needed for justice d. Impeaching the witness: i. Generally: evidence is being used for impeachment when it is used to destroy a witness' credibility, rather than establish a fact at issue in the case 1. R607: gives you the right to attack a witness' credibility to impeach

2. types of evidence or questions likely to be used for impeaching purposes: a. attacks on W's character: 3 ways this happens i. character witness tells about the witness's character ii. 608(B): specific instances of conduct attacking the witness's character for truthfulness (no using extrinsic evidence) iii. past convictions b. witness bias c. defects in capacity i. mental or physical capacity d. Witness's prior inconsistent statements e. Contradiction of witness's statements ii. Witness Bias: 1. exam tips of questions commonly asked by the other side: s a. how much are you getting paid to testify b. isn't it true that D's company is your employer c. isn’t it true that you were also arrested for taking part in the same crime and are awaiting your own trial 2. Generally: a witness may be impeached for showing they have a bias for or against a party. Includes: sympathy, motive, corruption, witness vulnerability a. Passes 401—because whether someone is bias is relevant because it bears on the credibility of the witness b. Types of biases to watch for: i. Relationships: family, business, membership, sexual, employment ii. Interests: financial, hatred, fear, expert paid 1. A few good men clip: Dr's reputation was on the line—Dr is more likely to say it was poison than something he did iii. Settlement interests 3. Methods of proving: 2 ways a. Cross examination of the witness b. Extrinsic evidence: bring in prior statements, prior relationships, specific instances that show bias iii. Defects in Capacity: 1. Types of capacity: can be physical or mental capacity a. Ability to observe, recall, narrate, hear b. Examples: dark out, bad eyes, bad hearing, drunk, using drugs 2. Methods of proving: a. Cross examination b. Extrinsic evidence: bring in evidence of the impaired capacity iv. Attacks on the witness's character show this guy is a liar: 3 ways 1. 608(a): Present another character witness: a. This witness may testify as to opinion or reputation of this witness about: i. The witness' character for truthfulness or untruthfulness (truthful character evidence is only admissible after this character has been attacked) 1. Must be about truthfulness—not general of a good or bad reputation

ii. Lay the foundation that they have knowledge for their opinion or knowing the reputation of this witness b. Cannot ask about specific instances—to the other witness 2. 608(b): Specific instances of conduct a. 2 times this can be asked about: i. may ask the actual witness about specific instances of conduct that would show untruthful 1. here we are attacking the very witness we are trying to impeach ii. if a second witness testified under 608(a) about the character of the 1st witness—on cross of this second witness b. Here YOU MAY NOT use extrinsic evidence—stuck with the given answer c. Specific instances: must only relate to truthfulness: this can be a fact determinative question: i. Ex—someone having an affair, verses a priest having an affair 3. 609: Prior criminal convictions: 3 categories a. 609(a)(1): felonies: based on the potential punishment—crimes that are punishable by more than one year (even if not the actual sentence received): i. Witness NOT the accused: 1. Use a 403 balance test on whether evidence of the felony should be allowed in to impeach this witness 2. Only purpose is to show that the witness is a liar 3. Party seeking to exclude has the burden of proof ii. ACCUSED is the witness: 1. Probative value of impeaching with this felony MUST outweigh the prejudice effect12 FACTORS considered: a. Nature of the crime i. To what degree does the past felony tell us about their trustworthiness—all felonies have a value with trustworthiness ii. Look at the particular way the crime was committed b. Recency or remoteness of the offense i. Although if in jail the whole time not very helpful c. Witness's history since the crime d. Similarity between the past conviction and this trial i. If two similar—there is a risk the jury will use it for the forbidden inference more likely to exclude13 e. How important is the defendant's testimony to this case— points to exclusion f. How central is the credibility in the case—points to admission
12 13

Note this is not reverse 403—because it does not need to substantially outweigh Under 404b—the similarity of the crime is good for the prosecution trying to get this evidence admitted, BUT under 609(a)(2)—the crimes being too similar will likely not have it admitted for impeachment purposes—make sure on exam to address this **see problem 4.3 p 259

b.

c.

d. e.

f.

g.

i. Last two are usually a wash 2. Offer the accused more protection than lay witness because life and liberty is at stake 3. Burden of proof is on the prosecution 609(a)(2) Other convictions involving dishonesty or false statements i. Per se rule of admission –403 DOES NOT APPLY ii. What is a dishonest crime: strict interpretation because of the fact it is a per se rule and not subject to the 403 balance 1. theft—is not usually a dishonest crime 2. dishonest crimes: a. perjury, false statements, criminal fraud, embezzlement, false pretenses b. crimes with elements of deceitfulness, untruthfulness, or falsification c. Sometimes the court will consider the surrounding circumstances to see if the crime fits under dishonest crime: but note that the surrounding circumstances are not allowed into evidence, only for considering whether the conviction is allowed into evidence 609(b): Convictions more than 10 years old (of release from confinement) i. This convictions are excluded UNLESS: 1. PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHTS THE PREJUDICE: 609e: convictions: tendency of appeal does not render conviction inadmissible 609(d): juveniles: i. evidence of juvenile adjudication is generally not admissible ii. standard: 1. never admissible against D in civil or criminal cases 2. can admit against Witness other than D in criminal cases HOW THE CONVICTION IS BROUGHT INTO EVIDENCE: i. Only the conviction itself is allowed into evidence, no underlying circumstances surrounding the crime 1. name of crime 2. date of conviction 3. sentence that followed a. attempting to limit any unfair prejudice ii. Defendant can open the door to discuss what happened—explaining— but this opens the door for the prosecution to discuss ISSUES WITH APPEALING THE ADMISSION OF CONVICTIONS: i. When can you appeal? 1. To preserve the right to appeal: a. D must actually take the stand (motion in leminee does not preserve the appeal right) b. Prosecution (not defendant on direct) must have brought up the conviction first

v. Prior inconsistent statements to impeach14: R613 1. Exam tip fact pattern: when there is a witness on the stand that is saying something that is inconsistent with what he said earlier. a. Here you are doing two things—impeaching them and proving their prior statement took place 2. 2 ways to impeach: a. Surprise: (no warning necessary)the witness is on the stand and you ask about the statement they made earlier—getting them to admit that they said something else before that is inconsistent with what they are saying now i. This is only used to impeach the witness 1. good if you can get it in here and then not give them a chance to explain—which you do not need to because you used no extrinsic evidence ii. On request is must be shown to opposing council b. Using extrinsic evidence of the prior inconsistent statement then the witness MUSY be afforded an opportunity to explain or deny the same and the opposite party must have an opportunity to interrogate the witness i. Here you would be bringing in 1. another witness to testify about what this witness said or 2. documents the witness wrote— a. W must have the chance to explain this evidence AT SOME POINT in the trial—can be after the impeachment vi. Contradiction to impeach: 1. Big issue here is the collateral matters: example W1 testifies, the attacking party CANNOT then call W2 to contradict the truth about what W1 said UNLESS it has another independently provable purpose a. RULE: If the extrinsic evidence ONLY goes to prove a collateral matter then it is NOT admissible (even though it is relevant)—BUT i. Dual Relevancy: If it proves something else too (EVEN IF THAT SOMETHING ELSE IS INADMISSIBLE EVIDENCE) than you can use extrinsic evidence 1. example: the extrinsic evidence proves a. contradiction and b. propensity i. You can use extrinsic evidence even though the jury is not allowed to consider the propensity purpose ii. EXCEPTION: if the contradiction is SO FUNDAMENTAL to the witness—the court may allow extrinsic evidence 1. as long as not strictly forbidden by the rules 2. specifically he said she said cases b. Although this evidence does not have to go to the merits of the case—without another purposes, besides witness' credibility—no extrinsic evidence is allowed vii. Rehabilitating a witness's credibility:
14

Do not get confused—although this is HEARSAY it is being used to impeach not for the truth of the matter asserted—it is allowed in to impeach, but not as proof of guilt or innocence

1. Once the witness's credibility has been attacked, it may be rehabilitated by the non attacking party. a. Tools used to rebut attacks: i. Prior consistent statements 1. show memory is fine—you said all this the same 2. express or implied charge of recent fabrication ii. Character witness iii. Ask the witness questions about the attack 2. Issues to watch for: a. The rehabilitation evidence must be sufficiently related to the impeaching evidence i. Ex: if bias was attacked, must rehabilitate bias, not character b. A prior consistent statement can't be used to bolster a witness's credibility unless the other side first claimed that the testimony was untruthful 3. P4.5 e. Lay v. Expert Witnesses: i. Procedural difference with lay and expert witnesses: 1. With an expert witness the other side gets notice—they must disclose the witness, his opinions, basis for those opinions, and other info bout the expert 2. the other side must have an opportunity to dispose the expert ii. LAY WITINESS: 1. Generally lay witness's testify to facts, however certain kinds of opinions are allowed by lay witnesses. 2. Lay opinions: R701 a. If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are: i. (a) rationally based on the perception of the witness 1. Personal knowledge required—what is the opinion based on what they observed 2. no reputation evidence allowed 3. General things allowed: a. sight, height, weight, speed, sound ii. (b) helpful to a clear understanding of the witness's testimony or the determination of the facts in issue, and 1. taking sides in the case is not helpful 2. the closer this testimony is to the ultimate issue—more likely it is unhelpful a. –I think he looked guilty—NOT allowed 3. Can the jury get this evidence any other way— a. Would specific facts help the jury more iii. (c) not based on scientific, technical, or other specialized knowledge within the scope of R702 1. the mere fact that a witness is testifying about her own experiences—does not mean she is not an expert iii. EXPERT WITNESS: 1. Generally: 2 questions need to be answered:

a. Is the testimony a proper subject matter for this expert? b. Is the witness qualified in this subject matter? 2. R702 Testimony by Experts: If scientific, technical, or other specialized knowledge will assist the tier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if: a. The testimony is based upon sufficient facts or data b. The testimony is the product of reliable principles and methods i. Not enough that experts rely on it—it must be reasonable to do so c. The witness has applied the principles and methods reliably to the facts in the case 3. Who can be an expert: anyone—low threshold standard a. Must show knowledge, skill, experience, trading, or education in that area b. Must lay the foundation—showing that he is qualified to be an expert showing why this testimony relates to their expertise 4. R703 Basis of opinion testimony by expert: What is an acceptable basis for the experts opinion: R703 a. The facts they can rely on to form their opinions may be: i. Perceived by the expert personal knowledge ii. Made known to the expert before the hearing or at the hearing 1. hearsay(its ok): a. medical records b. interview witnesses c. talk to lawyers and investigators d. talking to officers 2. facts at trail: can be posed as hypos iii. The facts relied on do not need to be facts that are admissible in evidence 1. To rely on this evidence the expert must show that it was reasonable to rely on this evidence (must be reasonable, not that everyone else in the field does it 2. When do you reveal this information to the jury: a. Reverse 403: only reveal these to the jury if the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect b. If allowed in—limited purpose: only to consider for the basis of the experts opinion (non hearsay purpose) i. Opposing party can ask for a limiting instruction 3. Expert can testify about their opinion without first testifying to the underlying facts or data a. R705: Disclosure of facts or data underlying the experts opinion: the opposing side can always ask about the underlying facts that lead to his conclusions on cross examination (goes to credibility)

b. Although you do not have to give the basis it is more affective if you do 5. R704: Opinion on ultimate issue: a. Opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact i. BUT cannot call for a legal conclusion— 1. Majority rule if it is a mixed legal conclusion and fact it is not allowed b. Specifically with criminal cases: i. Expert CANNOT testify to the defendant's mental state or condition: cannot testify as to whether the defendant did or did not have the mental state or condition constituting an element of the crime or defense 6. R706: Court appointed experts: a. This is an attempt by the court to limit or avoid corrupting influence of expert witnesses: the court always has the right to appoint b. Problems with court appointed witnesses: i. Parties still can have their own witnesses—more confusion, harder to decide who is right 1. ends up basing who to believe on the likeability of the expert 2. not buying good science but a good communicator ii. Court's expert seems most credible to the jury: but he will still have a bias although it is not a financial bias 1. positional bias 7. How the court decides if the expert testimony should be allowed into the case— when is it reliable: a. General Acceptance Frye Test: the method used to come to the opinion "must be sufficiently established to have gained general acceptance in the particular field which it belongs"15 i. Criticism: Unanswered questions and issues after Frye 1. Which field did it have to be generally accepted in? 2. Accepted with scientists or technicians 3. Would reliable evidence be inadmissible 4. Case states no authority 5. Does it apply to criminal and civil cases 6. Does it apply to all evidence b. Daubert Reliability Test: i. Generally: courts were split on whether Frye was adopted into the federal rules of evidence 702 or whether the rule overruled Frye and put into place a new standard for when evidence should be admissible ii. Frye is no longer the standard—instead it is a reliability and relevancy test: 1. Court focuses on the language of the rule: scientific and knowledge 2. First court acts as a gatekeeper: 104(a): Is the expert testifying to a. Scientific knowledge (reliable) that
15

this case was a polygraph case that had not gained standing and scientific recognition—so not generally accepted

i. Court looks up knowledge in the dictionary and it says good grounds—reliability ii. Reliable—not that the conclusion is the same, but the method to reach the conclusion is reliable b. Will assist the trier of fact to understand or determine a fact in issue (relevant) i. It must fit an issue in the case 3. Factors the court can consider when determining (under 104a) whether it is reliable: NOT EXHAUSTIVE a. TESTABLE: Whether the method has been tested—if you tried it again would you get the same result? b. PEER REVIEW AND PUBLICATION: are the ideas out their for criticism, or was the method merely adopted for litigation purposes c. ERROR RATE: what is the statistically significance of the outcome d. CONTROLLING STANDARDS: are there standards in pace that control this techniques operation e. GENERAL ACCEPTANCE: can still consider Frye as a factor in determining if it is reliable c. Comparison of Frye and Reliability test: i. Switch from the scientists being gatekeepers as to whether it was generally accepted—to the judge being the gatekeeper as to whether the method is reliable ii. Reliability test looks at the TECHNIQUE used while the Frye test looked at the CONCLUSIONS seeking the be admitted iii. Hard sciences v. soft sciences: 1. might still be hard to get soft sciences in under reliability test because the techniques are not tested as often or based on scientific data a. behavioral, forensic, hand writing—this type of data has a hard time getting un under reliability test d. Reliability TEST: applies to scientific AND non scientific experts (Kumho) i. Although with non scientific experts you can look to other more determinative factors, but the question of the reliability is the same 1. it is up to the trail court to decide if the Duebert factors should apply or what other factors to consider 2. Ex: tire failure analyst here the skill is from doing it, this test is heavily based on experience not subject to testing f. PRIVLEGES: i. R502: General rule for privileges: 1. With diversity cases that are applying federal state law: look to the state common law for what privileges apply (Eiree) 2. Federal question cases; look to federal common law—privileges that have been applied by the supreme Court ii. General things courts look for when recognizing a privilege or how far to extend a privilege:

1. Important public interest involved in protecting the communication v. the good evidence that the court is giving up a. Ex: Public mental health (Jaffee) —if you privilege the communication it encourages full and frank communications to reach proper diagnosis's b. Problem with this analysis: i. Court assumes when people communicate they will be forward looking to litigation ii. To what degree do these rules really influence peoples behavior iii. To who should a public mental health privilege extend—they extend it all the way to social workers instead of just physiologists shrinks 1. based their reasoning for over extending this privilege on the importance of the public mental health 2. dissent thinks the privilege should be limited iii. 5A privilege against self incrimination: iv. Attorney client privilege16: 1. ELEMENTS: a. Clients privilege i. Can only be asserted or waived by them or on their behalf (agency relationship) ii. Not the lawyer's privilege b. Protects only confidential communications i. Communication is confidential only when the client intends it to be— fact based analysis: 1. must have been reasonable attempts on the part of the client to keep the conversation confidential a. look at the conduct b. look at the nature of the conversation and surroundings i. taking or failing to take precautionary measures bears on the intent of whether it was confidential ii. if they took reasonable precautions and someone was eavesdropping—the communication would still be privileged ii. Example issues: arise with cell phones, emails, trash, theft, attorney mistakes 1. if third party intervened—still keeps confidentiality 2. attorney mistakes: can go either way—did the attorney waive the privilege on the clients behalf? a. But if done on purpose—done without permission of client—not waiver b. Client can always sue for mal-practice c. only protects communications i. can apply to written communications ii. OBSERVATIONS are not communications— 1. like calling an attorney to testify about a client's hand writing, or if you saw a client drunk that was on trial for DWI
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criticism of the privilege is that it really only benefits the guilty

iii. **note only the COMMUNICATION is covered, NOT the facts of the communication if they are uncovered through discovery— 1. facts are always subject to discovery d. the confidential communication must have been made to facilate the professional legal services i. id of client not a communication facilitated for legal services ii. attorneys fee arrangement is not a communication for legal services iii. business advice is not privileged iv. if acting as a friend it is not privileged 1. Gionis case: he refused to represent him before making any of the statements—not facilitating professional relationship—not privilege a. Argument that is privileged: when he represents him on an emergency basis—he was acting in professional legal services and should not parse out privileged conversations and not privileged conversations 2. Ex: lawyer contacted to deliver a stolen typewriter—not a communication to facilitate legal services 2. TIMING: how long does the privilege last? a. FOREVER, even after the client is dead—if not it would still silence communications for fear of disclosure after death: i. Reputation ii. Family and friends could be affected 1. Decision based on purpose of the privilege: still applies after death a. Purpose is full disclosure—and this might nto happen if the privilege does not apply after death 2. Dissent would prefer a balancing test of whether to disclose in a particular case after death 3. CRIME FRAUD EXCEPTION to attorney client privilege: a. Generally: attorney client privilege does not apply to communications concerning future criminal or fraudulent acts i. Clients intent determines whether that is what the communication was for b. Determining if the exception applies: i. For the court to review the communication ii. Opposing party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exceptions applicability 1. Once they do that the court CAN do in camera review of the communication v. Government Lawyers: In re Lindsey????? vi. Marital Privileges: 2 kinds 1. Spousal testimonial privileges: a. Policy: protects marriages from dissention and the natural repugnance for convicting a defendant upon testimony of his or her life partner.

b. Applies ONLY IN CRIMINAL CASES c. Determined at the time of trial—whether or not married at that point i. As long as married at that point—all testimony even concerning events before the marriage are privileged ii. Once the marriage ceases so does the privilege d. Who holds the privilege: i. Most jurisdictions JUST the witness spouse ii. Some jurisdictions both spouses hold the privilege—but goes against the policy of not wanting the witness spouse to have to be responsible for prosecution of the other spouse 2. Marital Confidence Privilege: a. Policy: to promote marital discourse—but does it really encourage communications? Would not having the privilege affect their communications? b. Applies in both criminal and civil cases c. Applies ONLY to communications during the marriage not communications before or after the marriage— i. But privilege survives the marriage for statements made DURING the marriage d. Holder: both spouses hold this privilege e. All the elements of attorney client privilege apply to this privilege: i. Spouses ii. Confidential iii. communication


				
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