Chase outline from outlinedepot

Downloaded From OutlineDepot.com Evidence Outline – Fall 2003 I. Evidence: a. Types of Evidence: i. Real: physical, tangible – there has to be a foundation for this ii. Representative (demonstrative): represents another thing – diagram, chart, etc 1. No real connection to the case, it’s a device created to help the jury understand iii. Testimonial: from witness, by voice – by far most common, what is said under oath b. Direct: proves a fact without inferences – still need to assess credibility of witness c. Circumstantial: inferences – or a chain of inferences to get from one point to another i. Most evidence at trial is circumstantial – often much stronger in court d. Standard of Review on Appeal: i. Abuse of Discretion ii. De Novo iii. Plain Error e. Reasons for rules of evidence: Keep these in mind throughout the semester 1) Concern about juror misuse of evidence a. Keep from them what they may misuse 2) Promote accuracy a. We want to juries to reach a fair and accurate verdict b. This is never guaranteed, but the rules help promote it 3) Promote efficiency a. Trial are expensive, so we want the jury to only hear what they need and not have things repeated 4) Allocate burden of proof 5) Further public policy f. Most evidentiary rulings are made during the course of the trial. Because it is done quickly, there is a good potential for error. To appeal a ruling, a number of things have to happen 1) The error has to have mattered a. Under FRE 103 – the error must have affected the substantial right of a party i. Has to have likely affected the outcome of the case – if it doesn’t then it is Harmless Error 2) If the evidence was admitted erroneously 3) Have to have objected but also have objected on the appropriate ground a. This is an efficiency thing here, the judge needs to know what the problem is while there is still time to correct it Downloaded From OutlineDepot.com 4) Or can appeal if your evidence was excluded, but person that got objected to must make an offer of proof a. Offer of proof is usually done at sidebar that you really are entitled to have the evidence in b. If the question is on cross then you don’t have to show the error of proof II. Relevancy a. Relevancy is the gatekeeper of evidence - If it isn’t relevant it can’t even get to the door, but even if it is relevant that doesn’t guarantee it will be admitted b. The legal test of relevance is 2 parts. Evidence is relevant if it is: 1) Probative a. To make something more or less likely 2) A fact or consequence to the determination of the action a. Properly provable in a case. b. Describes facts that relate to the elements of the claim, cause of action, or defense, to the credibility of a witness or to helpful background information c. Relevant evidence means evidence having any tendency to make the evidence of any fact that is of consequence to the action more or less probable, than without the evidence i. In most cases, relevancy is a matter of common sense. Will usually be circumstantial evidence, so you need to draw inferences ii. Series of if…then…statements iii. Hypo: Guy charged with DUI and Breathalyzer no longer available. So we have officer testimony, and the officer has to offer other pieces of evidence than the Breathalyzer. Is it relevant that there was an open and chilled beer in the car cup holder? If the beer was in the car then it is likely he was drinking it. This therefore makes it slightly more likely that he was above the legal limit 1. What if it was an empty can in the back seat? This is still relevant – there can be a perfectly innocent alternative, but it makes it slightly more likely he was drinking. Less probative than the cold half full on in the cup holder, but still probative 2. What if there is a coupon for buying beer on the front seat? This would increase the likelihood that he drinks beer – this is very weak, but still relevant. If coupon not clipped and just in the LA times that he had on the seat next to him, then not relevant, because there is no proof that he wanted or didn’t want the coupon. d. Materiality – the fact has to be logically relevant to the context of the case e. In relevancy need to know something about the law in the jurisdiction f. If you are trying a murder case and you want to admit the weapon then that evidence has to come in through testimony. Downloaded From OutlineDepot.com g. Conditional Relevancy – Rule 104(b) – 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 i. Often it is admitted upon receipt of additional evidence ii. California 403 - The jury needs to decide if its relevant, the judge needs to deicide if there is sufficient evidence from which the jury could conclude that the item is relevant – the jury makes this decision. h. Rule 403 Exclusion of Relevant Evidence on Grounds of prejudice, confusion, or waste of time: i. 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 ii. This is usually called ―Unfair prejudice‖ i. Probative Value – how far does the evidence go for proving the point for which it is offered? j. Unfair Prejudice – these are all things we want to avoid 1) Confusing 2) Misleading 3) Waste of Time a. Delay b. Time Consuming c. Cumulative k. 403 creates a balance between probative value and unfair prejudice i. 403 tips heavily in favor of admission l. Probability Evidence: Probability evidence can be misleading i. Jurors tend to overvalue information like this, so it is usually excluded. Can be confusing and misleading to say that 1 out of 12 million is the probability that it could have been someone else. m. Categories of evidence that come up: 1) Unnecessarily gory a. Sometimes the viciousness of the attack makes it important for the gory details – the gore have to be too overwhelming for the point it is trying to make to be kept out 2) Statistical evidence a. What is the probability of the event occurring – this is easy to keep out because it tends to be overvalued by the jurors 3) Scientific Evidence (pseudo scientific evidence) a. The relevancy depends a lot on the reliability of the science, the more reliably it is reached, the more probative it is likely to be b. Once you increase the probative value it is a lot harder to argue that it is prejudicial. Downloaded From OutlineDepot.com III. 4) Other similar occurrences a. Can unfairly prejudice the jury and make them focus on something else that may distract them or give them a reason to distract one of the parties, this may mislead them. This can also be a waste of time Hearsay a. This rule is about trying to limit what jurors can hear to only the evidence that is reliable enough for them to hear – usually just in court testimony. b. FRE 801 – defines hearsay as 1) an out-of-court 2) statement 3) made by a declarant and 4) offered for the truth of the matter asserted (TOMA). Evidence must meet all of these requirements to be excluded as hearsay i. 2 types of exceptions 1. evidence which is labeled not hearsay by the rules (FRE 801(d)) and 2. evidence whish is labeled hearsay exception (FRE 803, 804) ii. Out of Court: a statement is considered out of court if it was made outside of THIS court proceeding iii. Statement: is an oral or written assertion or nonverbal conduct intended by the declarant to be a communication to others. The key to understanding assertions is that they are intentional. Can be verbal or non-verbal 1. Non verbal conduct will constitute a statement only if the primary motive of the actor is to communicate to others 2. This is a statement of fact. Ex: The light is green. 3. A fact can have a truthful or untruthful quality – it has to be able to be said that it is true or false. iv. Declarant: is the source of the out of court statement – different person than a testifying witness 1. HAS TO BE A PERSON 2. Can be the witness that is testifying – if they say ―I told the police officer…‖ then the witness becomes a declarant, declaring and out of court statement v. A statement is offered for the truth of the matter asserted (TOMA) if it is offered to show that its factual content is true. 1. Ask 2 questions: 1) How is it relevant? What is the statement being offered to prove and how does it prove it? 2) Would it prove that point even if the statement were false? Or does it only prove that point if you assume the statement is true c. Statements not offered for the truth of the matter asserted often fall into one of several categories 1) State of mind – not offered for truth, but for declarant’s state of mind Downloaded From OutlineDepot.com a. Not things like ―I am angry‖, but that the statement has an affect on the state of mind of the hearer or the reader. That is not offered for the truth of the statement, but the way the statement affected the hearer b. Circumstantial evidence of the speaker’s state of mind. Like if someone says ―I am the Queen of England‖, it can go not to the truth of the statement, but to the fact that that person is crazy 2) Impeachment – prior inconsistent statements of a testifying witness are generally not offered at trial for the truth of the matter asserted, but rather to show that the witness is less credible because he or she has uttered two inconsistent statements 3) Res gestae – background evidence to complete the story a. Not typically used in practice 4) Operative Facts – some statements create legal obligations or duties, the statement is not offered for the truth of the matter asserted, but instead is offered to show simply that the statement was made 5) Verbal Acts: word accompanying an act which help to explain the legal significance of that act a. Ex: Here this is a gift for you – this is showing that it was a gift, and therefore has legal significance. b. Entering into a contract, or anything that changes a legal relationship d. FRE 801(d) – A statement is not hearsay if – i. prior statement by witness (in court subject to cross) ii. Inconsistent statements 1. Inconsistent with in court testimony 2. Under oath subject to penalty of perjury @ hearing, trial or deposition 3. CA 1235 does not require under oath (any prior inconsistent is okay) iii. Consistent statements 1. Consistent 2. Offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive e. US v Day - Prior Inconsistent Statement Case i. ―Congress intended to qualify only those prior inconsistent statements that were highly reliable and firmly anchored in the probability of truth as admissible substantive evidence‖ (pg 249) ii. If only offered as impeachment, don’t need 801(d)(1)(a) because for impeachment not offered for TOMA. 801(d)(1)(a) only applies if trying to offer TOMA of prior statement. iii. Inconsistent statements can be offered for 2 reasons Downloaded From OutlineDepot.com 1. Impeachment – can give limiting instruction to the jury for this 2. TOMA – only if meets 801(d)(1)(a) f. Consistent Statements – 801(d)(1)(b) - Many times excluded as cumulative, unless makes witness more credible i. If witness has been attacked on cross then this can rehabilitate 1. Must be consistent 2. Rebut charges of fabrication or improper motive ii. CA 1236 g. Prior Identification – 801(d)(1)(c) - Witness statement must be one of prior identification after perceiving the person i. It is this way because in court ID is very suggestive - No strict limitation ii. CA 1238 much stricter – must have been made at the time the crime was fresh in witnesses mind. Must be a true reflection of witnesses opinion at the time h. 801(d)(2) – Statements against a party opponent - Admission is not a confession or accepting liability. Anything the party says can be offered against that party in a court of law. It can even be self serving at the time it is made i. Requirements: offered against someone who is now a party and the party said it 1) Party’s own statements a. Admitted even if person making admission lacked personal knowledge b. Can be pure speculation – isn’t unfair because party can explain it 2) Something party adopted as own statement a. Party manifests adoption of statement or believes it is true b. Ex: did you see that? Party answers yes, this means they adopted the statement c. Silent adoptive admission – a person can, by remaining silent, admit an adoption of someone else’s statement. This is a disfavored type of admission with 4 foundational requirements: i. Have to show party who adopted statement actually heard it 3) Something an employee said offered against party – in order to be admissible it must show: a. Declarant was an employee Has to be type of statement about which you could say ―he certainly would have denied it had it been untrue‖ b. Speaker was someone likely to be taken seriously and in context where it would matter Downloaded From OutlineDepot.com c. Have to be able to show that nothing prevented the party from responding. i. ex: Miranda warning d. US v Flecha – the inference of assent may safely be made only when no other explanation is equally consistent (pg 249) e. Need to show existence of employer/employee relationship 4) Speaking agent (someone hired to speak for party) – if you hire someone to speak for you, what that person says can be used against you: a. Ex: lawyer - everything they say or something in a pleading, can be used against you b. Ex: realtor runs ad ―house for sale, with barn and 2 horses‖. This would also be a verbal act so you don’t need 801(d) depending on what you are offering it to prove c. of party at the time the statement was made d. Statement must concern matter within the scope of the employees employment i. Does not require personal knowledge e. Most courts won’t apply this if employer is government (won’t hold US liable for postal worker statement) f. CA 1224 – limited to respondeat superior type cases g. Need to show existence of employer/employee relationship 5) Something co-conspirator said a. Co-venture requirement – person speaking was member of conspiracy of which party was being offered against b. Dependency – statement must be made while conspiracy continuing (not before or after) c. Must be in furtherance of the conspiracy – not just casual remark d. Need to show existence of conspiracy e. Conspiracy doesn’t need to be one of criminal charges to admit statements i. FRE 803 – Hearsay exceptions – Declarant need not be unavailable i. 803(1) – Present Sense Impressions – a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 1. Timing is critical 2. Declarant has no opportunity to think about what he is saying 3. Reliable because statement is a product of the event 4. Statement must describe or explain an event or condition, it is goes further then it is too much Downloaded From OutlineDepot.com 5. CA § 1241 – is offered to explain, qualify or make understandable conduct of declarant a. Must be declarants own activities 6. Must satisfy personal knowledge – can be suggested by content of the statement ii. 803(2) – Excited Utterance – statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by event or condition 1. Not able to reflect upon statement – exciting event brought it on 2. Emotional state of declarant is key a. Declarant had to be under stress of event 3. The longer the time lapse the less likely it will be admitted, but it sis not absolutely controlling 4. Only needs to relate to the incident – not describing it 5. Can still be excited 75 minutes after attack – depends on circumstances 6. Rekindling effect might work too 7. Must satisfy the personal knowledge requirement - can be suggested by content of statement 8. Unidentified Bystander exception – if you don’t know who the person was that said it, then judge’s don’t like to admit because no proof of personal knowledge iii. 803(3) – Then existing mental, emotional or physical condition 1. Non-hearsay circumstantial evidence of state of mind – Ex: Chase says ―I’m Elvis‖ 2. 803(3) state of mind – ―I’m angry‖ – because needs TOMA 3. Accepts statement of declarant’s THEN EXISTING state of mind 4. Wants to admit statements of existing emotional, physical or mental consirion. Reason – because difficult to think there is any more reliable indication of how they felt at that time 5. ―My head hurt‖ is fine, but ―my head hurt last week‖ is not 6. CA § 1241 – allows backward looking if declarant unavailable – no similar federal provision 7. Statements of future intent – if someone intends then they are likely to, so it tends to prove they did it 8. What if I said ―I intend to go to Santa Barbara with John‖ can this show John might have? a. Hillmon - Future intent of Walters is competent evidence of what a 3rd party intended to do. It can’t be proof he went with Walters unless his intent is reliable proof of what Hillmon intended to do. This doesn’t have the same level of reliability, and is still an unsolved issue. Downloaded From OutlineDepot.com iv. 803(4) – Statement for purposes of medical diagnosis – statements made for the purpose of medical diagnosis or treatment and describing medical history, or part 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 1. Identity of person, who or what caused accident isn’t pertinent, but that they were in the car accident would be pertinent a. CA § 1253 only admissible if made by a minor under age of 12 in child abuse and neglect cases v. 803(5) – Recorded recollection – a memorandum or record concerning a matter about which a witness once had knowledge but not has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by witness when matter was fresh in witness’s memory and to reflect that knowledge correctly. If admitted, the memo or record may be read into evidence, but mat not itself be received as an exhibit unless offered by an adverse party. 1. Witness MUST be on the stand!! a. Can include a tape recording b. Witness has to have known it before and now forgotten it c. CA § 1237 – pretty much identical vi. 803(6) – Records of regularly conducted activity – admits documents with bits of info, none of who is going to testify. Admitted for TOMA 1. Reliability – document on which business needs to rely for its own existence. Need to be accurate because business needs them to be accurate to survive 2. Necessity – often contain into from a number of different people, if had to call them all, could be greatly bogged down a. Have to stick with foundational requirements 3. FOUNDATION: 1) Regularly conducted business activity a. CA does not allow opinions in records, have to have person testify 2) Current and ongoing records (made at time) if not current might not be accurate 3) Personal knowledge – person compiling doesn’t have to have knowledge, but person providing info must have personal knowledge and be within business 4) Made and kept – in ordinary course of business a. Something business NEEDS to keep track of Downloaded From OutlineDepot.com vii. viii. ix. x. 4. Need foundational evidence - someone needs to come in and lay down foundation, or can be done by affidavit 5. CA § 1270 and 1271 – not really different except for written opinions 803(7) – Absence of entry in records kept in accordance with the provisions of paragraph (6) – if something should have been recorded wasn’t, then its absence means it didn’t happen – this can be let it 1. CA § 1272 – same 803(8) – Public records and reports – essentially business records of governement 1) Activities of office or agency a. EX: # of stamps sold in a given day, county health inspector report, Cal Trans report 2) Matters observed pursuant to duty imposed by law a. Building code violations, Cargo survey reports, water meter, DEA lab test b. Cannot offer report of crime scene cop saw – D could offer report against government, but not P against D. This is because of the confrontation clause. c. There is no criminal exclusion in CA, but confrontation clause is still an issue 3) Factual findings resulting from an investigation made – criminal excluded (driven by confrontation clause), no CA counterpart, a factual finding can be an opinion a. CA does not allow opinions b. Fed, only basis to exclude an opinion unless it is found to be not trustworthy c. Court looks at: i. Qualifications of person that made finding ii. Is there some support for conclusion iii. Is it a final report or has it been superceded iv. Sources of information in preparing report v. Any kind of hearing? vi. Any reason to suspect motivation of preparer? vii. Timeliness of report (more current to event the better) 1. Necessity – reason is high turnover in public agency – would be hard to find to person that made the record 2. Reliability – public employees are particularly careful 803(9) – Records of vital statistics - Records of birth, death, marriage, etc. Source of info is why we have separate exception – not recorded by government agency. 803(10) – Absence of public record or entry - same as 803(7) Downloaded From OutlineDepot.com xi. 803(11) – Records of religious organizations – like vital stats and probably could come in under business, but broader because source doesn’t have to be within organization 1. Unlikely this would be false 2. CA § 1315 xii. 803(12) – Marriage, baptismal, and similar certificates – as long as issued at time of act then it is fine. 1. Allows info in marriage cert other than just fact of marriage 2. CA § 1316 xiii. 803(13) – Family records – family stuff, to prove things like date of death 1. CA § 1312 xiv. 803(14) – Records of documents affecting an interest in property – Ex: record of deed being recorded would prove that it had to be executed prior to recordation 1. CA § 1330 xv. 803(15) – Statements in documents affects an interest in property - not in record but in actual deed itself 1. CA § 1330 also xvi. 803(16) – Statements in ancient documents – admitted if 20 years or older and authenticated 1. CA § 1331 – 30 years old can be admitted – so more restrictive 2. These is necessity in this – needs to be authentic xvii. 803(17) – Market reports, commercial publications 1. Phone book, Dow Jones ticker tape, Sears catalog a. These can all include opinions 2. Need to be accurate 3. CA § 1340 – pretty much same, but no opinions xviii. 803(18) – Learned Treatises – most likely to be used 1. Need expert witness on the stand 2. Witness has to say this is definitive as established authority or judicial notice 3. Can read portions to the jury, but not received as an exhibit xix. 803(19) – Reputation concerning personal or family history 1. What community says about someone 2. Can usually use state of mind for these (803(3)), except where trying to prove truth of reputation 3. CA § 1313 and 1314 xx. 803(20) – Reputation concerning boundaries or general history 1. Land disputes 2. Must have arisen before controversy in question xxi. 803(21) – Reputation as to character - Reputation as to character can sometimes be admitted to prove king of person or used to show liar is some limited situations 1. CA § 1324 Downloaded From OutlineDepot.com xxii. 803(22) – Judgment of previous conviction – permits evidence of conviction and used to prove D had possession of a weapon or something like that 1. Limited to felonies and not available with plea of nolo contender 2. Can use judgment to impeach witness too, can’t use against anyone other than accused xxiii. 803(23) – Judgment as to personal, family or general history or boundaries j. FRE 804 – Declarant must be unavailable i. 804 (a) – defines unavailability 1) Privilege a. To establish privilege as a means of unavailability you have to follow a procedure which would require you to call them to testify (spousal privilege, or something like that), and then they must ACTUALLY invoke the privilege and then the court has to determine if the privilege is valid, so you can’t get away without calling them. b. Exception, if it is the criminal defendant, then they don’t have to be called to testify i. Can a D say he doesn’t have to testify and then admit a deposition that he gave in a prior proceeding – a criminal D has procured his own availability and cannot use the 804 exception in many places. Not absolute 2) Declarant refuses – a. You have to actually bring the declarant into the court room and put them on the stand. The can be done outside of the juries presence if you are concerned about prejudice. Then the declarant has to actually refuse to answer b. Court must order the witness under penalty of contempt, and then they may be more willing to testify. So they must continue to refuse even though they might be put in jail. At this point the court will declare them unavailable, which lays the ground work for putting in the other evidence 3) Lack of memory a. Under common law this wasn’t even recognized as grounds because witnesses often fake lack of memory b. Have to bring in the witness and ask them a question, in which they respond they don’t remember, and then the court has to decide if this is actual memory loss or pretend, then it can be treated as refusal (with threat of pain of contempt). Downloaded From OutlineDepot.com c. If it appears to be actual memory loss then the court can declare the witness to be unavailable. d. A witness can be found to be unavailable under FRE 804 due to lack of memory, but then is asked about a prior ID? The witness can still be available to be crossexamined, even without active memory for the purpose of 801(d)(1). 4) Unable to be present because of death or serious illness a. Pretty straight forward. A death certificate will suffice, or can accept evidence from a witness about death. b. Illness – where recovery is anticipated in a short period of time the preferred course is continuance of trial. If it is prolonged then the witness can be declared unavailable 5) Unable to procure attendance a. Definition is a showing that they were unable to procure the witnesses attendance by subpoena or some other means b. If going to admit b2, b3, or b4 then you have to show they are unavailable and you CANNOT take their testimony (get a deposition or something). If you can take their deposition, then you need to do that and then use it as former testimony. c. Criminal kicker to this – depositions are not the same in criminal because the confrontation clause. Generally speaking, to take a deposition you have to first get the judge’s approval in the criminal cases, which might not even be admitted. ii. CA does not list refusal to testify, but California cases to notice this, so it is in case law. CA does not mention absence of memory. In CA what qualifies someone to be a witness is somewhat stricter – more grounds for disqualification iii. In FRE disqualification would probably just be mental illness to the point of not understanding iv. 804(b)(1) – Former testimony 1. Once there is unavailability then you have laid the first prerequisite. a. Must have been given as sworn testimony (under oath) either in the case, prior proceedings, another case or deposition b. Who is it offered against? Can be against the same party, if that party had an opportunity and similar motive to adopt that testimony in that prior proceeding 2. If witness testifies in grand jury for prosecution it can never be offered as former testimony because there is no Downloaded From OutlineDepot.com right to cross-examination. Could possibly come in only as a prior inconsistent statement, but never as ―former testimony‖ because of lack of cross examination a. This could possibly be let in against the prosecutor, but it’s a maybe (see below) 3. Preliminary Hearings – not a definite no, but are maybe. This is because you need more of an examination of what happened at the prelim. This is because there isn’t a whole lot of incentive for the criminal defense attorney to do much cross-examination. The judge for this will look at the cross examination to see if the defense attorney was motivated and availed himself to the opportunity, then it probably won’t be allowed v. 804(b)(2): Dying declarations 1) Declarant must be unavailable – but not necessarily dead a. CA – no requirement of unavailability 2) FED: It is admissible in homicide prosecution or a civil case a. CA rule will admit a dying declaration in ANY case 3) Declarant must have made statement at a time they thought their death was imminent – Declarant MUST believe this 4) The statement must concern the cause or circumstances of impending death 5) Rationale – certain psychological forces on a person right before they die that doesn’t give them a cause to die vi. 803(b)(3) – Statements against interest 1) Unavailable 2) Must be against pecuniary, proprietary, civil or penal interests a. In CA can admit things against the person’s social interests 3) Type of statement a reasonable person like the declarant would not have made unless it were true a. Context is key here 4) Needs to show a finding of personal knowledge 5) Not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement (can get D off in a criminal trial or something like that not admissible without corroboration) a. CA does not have this exception 6) Don’t get confused with party admissions 1. 2 Issues: Downloaded From OutlineDepot.com a. How do you tell if it is against interest at the time it’s made? i. Context is key – need to know when made, where made and to whom it was made. b. Williamson – how much of a statement can you actually admit - The majority says that these type of post arrest statements that shift the blame away from the declarant are actually self-serving and not against his interest. i. So only the stuff that is NOT self serving can be admitted – which in this case would be ―I was transporting cocaine‖ which is completely irrelevant in Williamson’s case. vii. 804(b)(4) - Statement of Personal or Family History – if declarant unavailable can talk about date of marriage of Uncle Albert to Aunt Bertha or a birth date. viii. 804(b)(6) forfeiture by wrong doing - 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 k. Rule 805 – Hearsay within Hearsay – hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules i. As long as have an exception that works within each level of hearsay then you are fine. The most common is when you are dealing with business records. Anything recorded by a Dr or nurse in ordinary course of business can come in as business record, but these also often have statements by other people. And those statements need some sort of exception to get them in. ii. CA provision is identical. l. Rule 806 – Attacking and Supporting Credibility of Declarant - Can attack credibility of an out of court declarant. If they are called as a witness then can be treated as a cross examination (if declarant statement was against you). Or you can just use the other statements m. Rule 807 – Residual Exception 1) In order to get something in have to show no other exception that would admit the statement. 2) Must be determination that the statement has similar guarantees of trustworthiness as the other exceptions 3) Must make 3 findings a. Statement relates to a material fact (relevant and matters to outcome) i. If not then there is no point to admit it b. Evidence is more probative on the point for which it is offered than any other evidence. Downloaded From OutlineDepot.com c. The court must make a finding that the general purposes of these rules and the interests of justice will be served by admission of this statement into evidence 4) Must give notice to your opponent of intent to rely upon this exception to hearsay i. CA does not have a residual exception – there are a bunch of additional rules (1231 created for purpose of admitting prior statements of Nicole Simpson. ii. Residual exceptions most commonly used in Child Abuse cases n. CONFRONTATION CLAUSE - Need to understand how the Supreme Court deals with admission of hearsay i. 3 topics: 1. Limitations imposed on the admissibility of hearsay 2. Witness permitted to testify out of court (usually a child) – Maryland v Craig 3. When multiple defendants (Bruton Problem) and one made admission and it is admissible against one but not the other. How to deal with this. ii. Purpose: 1. Gives D a right to be present 2. Gives D a right to cross examine th iii. 6 amendment says: ―In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him‖ 1. Limited to criminal trials – never in civil 2. Accused has the right to confront the witnesses against him. The state does not have that right – this is not an issue if against prosecution, only against D. Right to be confronted includes the right to cross-examine. If literal then it would exclude all hearsay against criminal Ds. 3. This is a constitutional principle, not a rule of evidence. It is one of those principles that has been interpreted though due process of 14th amendment, so it applies to all state criminal trial too. This is where most confrontation clause rules are going to come to a head. iv. Ohio v Roberts - To admit against criminal defendant you have to show: 1. Necessity – Established by showing unavailability. 2. Reliability a. Firmly rooted hearsay exception (if there is an exception of long standing nature, that every court recognizes, then it is found to be reliable) b. Particularized guarantee of trustworthiness - Either a prior opportunity or a present opportunity to cross-examine about a prior statement satisfies the confrontation clause. Downloaded From OutlineDepot.com v. Idaho v Wright – Child abuse case – tried to get Doctor’s statements in about what a 3-1/2 year old said. To get these in you need to look for use of terms unexpected in a child of this age. Lack of motive, consistent repetition can be considered, but not the fact that someone else said something kind of similar to what this child said. 1. This case makes it much more difficult to use residual in criminal cases vi. White v Illinois - Relied on spontaneous statements and excited utterances. Prosecutor had done nothing to compel the child to testify. Defendant said is required under confrontation clause. Court did not say this was not the case but they came up with a new test for unavailability. 1. If the statement is reliable because it cannot be replicated in court - Excited utterance or statement to a doctor. Where you have these that can’t be replicated in court then the statements made out of court are likely to be more reliable than in court testimony. 2. Look at whether you can improve the reliability by recreating the circumstances or improving upon them. Where you have medical purpose, excited utterance or present sense impression those are more reliable. But in former testimony that can be recreated. vii. Lilly v Virginia – 1. Essentially 3 situations in which a statement against penal interest can find itself in a criminal trial a. If it is the Ds own statements – D can’t complain about confrontation clause issue here b. If the D is using someone else’s statement to exculpate him. But if D is offering it against the government then this is not an issue because the prosecution doesn’t have a right to confrontation c. When the government seeks to use the statement of a declarant to establish the guilt of a different individual. This raises confrontation clause because D cannot cross-examine the defendant. 2. Court said that statements made post arrest that shift the blame away from the declarant on to other people are usually inherently unreliable (they are self serving, not against interest). In this case the declarant was also drunk at the time But the court refused to say absolutely that all of these statements are barred. viii. Exceptions so far found to be firmly rooted: 1) Spontaneous statements (present sense and utterance) 2) Business records 3) Public records Downloaded From OutlineDepot.com IV. 4) Co-conspirator statements 5) Medical diagnosis 6) Beyond that most think that all of 803 will be found to be firmly rooted. 7) 804 all require unavailability anyway, so there won’t be a confrontation clause issue. ix. Right to face to face confrontation - Maryland v Craig 1. Allowed out of court testimony – child could testify in a separate room than where the D was being tried using closed circuit TV. P was with child, D attorney was with child and a friendly face was with the child so she wasn’t alone and the D was in the courtroom with the jury. Kid couldn’t see D, but D and jury could see child. So everything that needed to be there was, except that the child was not IN COURT. 2. This case brought in also the interest in protecting the child and their psychological well being. You have to really prove that it would HURT the child to be in the Ds presence. 3. 46 states now have a statute allowing this. A few states allow a deposition prior to the trial – this hasn’t been challenged yet. Usually the closed circuit tv is allowed only for kids, but some states allow it to be for challenged adults too x. Bruton v US - co-conspirator 1. Evans had admitted to robbing post office and admitted he had done it with someone else. IT was definitely admissible against Evans, but was it against Bruton? No. So the court decided that they can’t even give a limiting instruction in this situation. Jury won’t be able to get rid of it in their minds. 2. IF the D had taken the stand – THEN the statement would be allowed, but because he doesn’t have to take the stand (5th amendment) then there is no chance for confrontation because can’t cross examine. a. There are a few things you can do – separate trials or juries, redact the statement (cut out the part that refers to co conspirator, or get rid of the testimony all together Relevancy Revisited a. Subsequent Remedial Measures – Rule 407 i. After an injury or harmful event, measures are taken that would have made the injury or harm less likely, this measure is not admissible as evidence ii. This can be used to show it wasn’t feasible, but not considered as proof of fault or negligence. Downloaded From OutlineDepot.com iii. Justifications: 1. Want to encourage people to improve safety of products or premises 2. When someone fixes a product or premises then it is not usually an admission of fault anyway b. 408- Offers in Compromise – excludes evidence of civil settlement offer to prove liability of the claim or amount of claim. Excludes offer, compromises reached and discussions leading up to the offer (with some limitations). i. Cannot use prior inconsistent statements made in settlement negotiations when offered to impeach. ii. Limited in a couple of ways 1. Cannot exclude evidence that would have otherwise been discoverable just because it was used in a settlement conference. 2. Can use info in an attempt to reach a settlement for purposes other than liability or amount (ex: fact that settled with one or 2 of the Ps and now that person is testifying for D, can show witness bias, or undue delay of trial) 3. Does not pertain to statement made to a government agent in a criminal matter. c. 409- Evidence of offers to pay medical or other similar expenses – cannot be used for liability of the injury. Don’t want to stop people from trying to help, and this is a good thing to do, not something we want to discourage d. FRE 410- 4 parts: 1) Guilty Plea later withdrawn 2) Nolo Plea (no contest, not admitting guilt, but not contesting – accepts punishment) 3) Plea Discussions (in court) later withdrawn 4) Statements in plea negotiations – this differs from CA – if not resulting in plea of guilty or with a plea of guilty later withdrawn. Have to be engaged in with the prosecution a. In CA plea rule (1153) is broader, because not just statements made to the prosecuting attorney – is statements made to anybody – but interpreted more narrowly. No exclusion on Nolo pleas i. Only 2 exceptions in FRE 1. Can admit it if D introduces a part of the statement if the part can be misleading, then the prosecutor can admit the part that would make it not misleading 2. If D is later charged with perjury ii. In FRE cannot be used for impeachment unless D signs an agreement beforehand that any statements can be used to impeach them – The Supreme Court has allowed this waiver – not in the rule. Downloaded From OutlineDepot.com V. e. Liability Insurance – evidence that a person was or was not insured is not admissible as to whether they were negligent or other wise acted wrongly. The rule does not require the exclusion against liability if offered for agency, bias, etc. Character and Habit Evidence - Character evidence other than witness impeachment, is substantive use. When you can use evidence of character to prove a fact that is at issue in a particular case. a. What is character evidence? Personal trait or characteristic. Need to know that some of them are too general to be probative at all (good person or bad person) b. 3 ways to get it in: 1) Offered as propensity evidence a. What kind of a use is this? Circumstantial, such as, a person’s trait of character offered to give a persons propensity to act in a certain way. b. They say this isn’t very probative and reliable and therefore not allowed – there are 2 exceptions to this. This only deals with CRIMINAL CASES – never civil i. 404(a)(1) – character of accused (criminal D) – evidence of a PERTINENT trait of character (violent more so than truthfulness in A&B) offered by accused or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim is offered by an accused, then the P can offer evidence of the same traited character of the accused. 1. P can NEVER offer propensity evidence against D. Cannot be in prosecutions Case in Chief. ii. 404(a)(2) – character of victim – evidence of a PERTINENT trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor c. Rule 405 – Methods of Proving Character – 3 types of conduct: i. Reputation – involves witness laying foundation that they are in a position to be aware of the reputation of a person ii. Opinion – person has to establish that the have the knowledge to form an opinion (I have known this person for 14 years and they are a very violent person) iii. Specific Instances – specific instance of going to the cafeteria three times and didn’t pay for his lunch as proof of dishonesty. Downloaded From OutlineDepot.com 1. Cannot be used for propensity – it is just too remote 2. Can only be used when character is actually an issue (see below) 3. On cross you can inquire into specific issues. 2) Sometimes an individuals character is actually in issue (fact that must be proved at trial) – this is limited a. Most of the time character is at issue is going to involve a civil case: 1) Criminal Seduction 2) Entrapment - If entrapment D has to establish that D was not predisposed to committing the crime - This is a minority rule 3) Negligent entrustment 4) Defamation b. What are the rules? 404 doesn’t deal with it at all – only in 405 (B) in cases in which character is an essential element of a charge, claim or defense, proof must also be made of their specific conduct 3) 404(b) – offering particular act to prove something specific (plan, purpose, motive, intent, etc) a. If you want to offer evidence of a specific act (a Ds other crime or other wrong) you have to convince the court that you are offering it to prove something less than ―he robbed before so he probably did this time‖. It has to be more narrow – tell the court you are offering it to prove shows MO (identity). b. Where showing evidence of intent – you have to be careful to really analyze how it shows intent other than this is the type of person that would commit this crime. Cannot be shown as propensity evidence c. Unsaid things about 404(b) – evidence of this is often more likely to get it in as a rebuttal than in case in chief from the prosecutor. Nothing bars it in the case in chief, but easier to get in as rebut. d. If there is a strong likelihood that the jury might misuse and its not particularly probative then the other side can try to exclude under 403, because of unfair prejudice. e. List in 404 is not an exhaustive list, you need to only convince the judge that this is a good reason to let this in c. Doctrine of Chances – how likely is it that someone could have 3 wives die in the Jacuzzi? Need to show that lightening doesn’t strike twice – can’t be accidental that many times i. If you repeat the rule to the jury – this is not admissible for propensity but is admissible for and run through the list – the court has held that this instruction is unfair to the jury. A limiting Downloaded From OutlineDepot.com instruction needs to narrow the purpose that makes it admissible to the ACTUAL use that the evidence is admitted. d. Habit Evidence - FRE 406 i. Habit of person or routine practice of an organization whether corroborated or not and regardless of eye witnesses is relevant to prove that the person or organization on the particular occasion was doing this at that time. ii. Can’t offer character for this, just habit to show that a person acted in conformity with their HABIT. iii. Looking for uniform response to a specific stimuli (Pavlov’s Dog) iv. Can also have a corporate routine – this is easier to get in than human habit evidence. v. Character involves too many variables and may not be as accurate – habit is much more specific. e. FEDERAL RAPE SHIELD STATUTES: Rule 412: i. Evidence Generally Inadmissible 1. Evidence offered to prove that any alleged victim engaged in other sexual behavior 2. Evidence offered to prove any alleged victim’s sexual predisposition ii. Evidence of sexual behavior that can prove that someone other than the accused could be the person that did it – may offer evidence of victims other sexual conduct iii. But ONLY evidence that could shed light on the rapist, or to give reasonable doubt that the D was not the rapist. iv. 412(b)(1)(b) – can show relationship between D and victim to show consent or reasonable mistake is D reasonably believed she had consented v. 412(c) allows admission of evidence if it would bar the constitutional rights of the D (6th amendment) – not used very often though vi. These don’t deal with reputation or opinion – really deal with specific acts vii. If D seeks to offer evidence under one of these exceptions then there is a procedure that has to be followed. This requires to D to: 1. File a written motion 14 days before the trial identifying specific evidence he intends to offer 2. If D does this then there is a hearing in chambers (closed, so the victim remains protected from public disclosure), but then if it is held admissible then it is admitted in open court f. B(2) deals with civil cases (amended 1994 to include this) – while still generally excludes evidence of victims prior sexual behavior, it is a little easier to get evidence in. The standard of admissibility is an inverse 403 standard. D has to show that probative value of the evidence substantially outweighs the danger of harm to any victim or party. Downloaded From OutlineDepot.com VI. i. If what you are going to offer is reputation evidence, civil cases allow this, but only if the reputation evidence has been first offered by the victim ii. 413, 414, 415 – these rules are aimed at liberalizing what the prosecutor can use against a crim D in sex abuse cases. iii. 413 and 414 deal with crim cases iv. 413 – sexual assault – can allow in evidence of previous assaults (does not require conviction, all that is required is that there is enough evidence from which a reasonable juror could conclude that he had in fact engaged in the contact) Examination and Competency of Witnesses a. Direct Examination: P asks questions, then opponent can do cross. i. Scope of cross needs to be limited to the direct exam, and things affecting the credibility of the witness. ii. 611(c) - leading questions not allowed in direct exam, redirect, etc. 1. On cross and recross you can use leading 2. What is a leading question – can be answered with yes or no. It is a question that suggests the correct answer to the question. 3. Exceptions to this – a. leading questions are allowed as may be necessary to develop the witness’s testimony. Young witnesses, frail witnesses, sometimes this is necessary. You have to first convince the court that this is necessary. Ask then open-ended questions that they don’t answer right, and then ask the court for permission to lead the witness. i. Usually allowed for preliminary info (you live in Malibu, correct) b. 2nd exception – last sentence of (c) - A hostile witness, someone on the side of the adverse party, then you can ask the court to have the witness declared hostile, then you can lead the witness. b. Cross Examination: Can use leading questions here (and should). This allows you to control the witness. i. Limited scope in 611(b) – the court may in the exercise of discretion permit inquiry into additional matters, as if on direct examination. ii. So usually limited to direct, but the court has discretion to allow you to go beyond direct (usually only allowed for 1 or 2 questions, not much more, if need more then have to call during your side of the case). If this happens then you have to cease using leading questions for that portion of the testimony. c. Objecting – need to object or you cannot preserve that issue for appeal. d. FRE 615 – THE RULE: The court shall upon request of the party make witnesses be excluded so they cannot here the evidence of other witnesses. Downloaded From OutlineDepot.com If you ask to invoke ―The Rule‖ the judge must exclude other witnesses. Can’t exclude some witnesses though (parties) e. IMPEACHMENT 1) Can attack a witnesses testimonial capacity – attacking 1 or all of 3 things a. Ability of witness to have perceived what witness is testifying about i. Could they see it? (wearing glasses, too noisy, drunk) b. Ability to Recall (mental capacity) i. Ordinary incidence that isn’t particularly memorable c. Ability to communicate (does something impair the witness from communicating in court) 2) Attacking motives for testifying a. Bias – are they bias for the party they are testifying for i. Discovery is very important here b. Prejudice – is there something that makes this witness want to testify unfavorably? Do they dislike the party? Racial or ethnic? Ex-spouse? c. 3) Character – can they not tell the truth a. Prior Conviction 4) Bringing up Inconsistency a. Prior inconsistent statements b. Can impeach on contradiction by other evidence too i. 2 Rules: 1) Can impeach your own witness – under common law you couldn’t, but now you can a. Just because you say something bad doesn’t mean it is impeachment – can sometimes soften the blow (if informant is key witness and they are a criminal for example) 2) Can ask anything on cross so long as you have a good faith basis for asking the question ii. FRE 610 – evidence of beliefs or opinions of witness of matters of religion is not admissible for impeachment iii. Convictions of Crime FRE 609 1. Divides crimes into 2 different types: 1) Crime of dishonesty (or false statement) a. The court has no discretion, it must allow the witness to be questioned about this b. MUST BE A CONVICTION – not something dropped or anything like that 2) Felonies – a. The rule depends on who the witness is i. If the witness is the criminal defendant the rule is that the court will not permit Downloaded From OutlineDepot.com 2. 3. 4. 5. 6. inquiring into the felony unless the probative value outweighs unfair prejudice 1. Any criminal D about whom the jury receives info about a prior felony faces unfair prejudice 2. If the prior conviction was more similar to the present offense, then unfair prejudice increases 3. These are not highly probative and prejudice is higher, so many times this for impeachment is not permitted for a criminal D 4. The dishonesty crimes are better for impeachment ii. If not Criminal D, then you can inquire into it – ANY FELONY unless it is SUBSTANTIALLY outweighed by unfair prejudice 1. If not criminal D then usually not considered to be unfairly prejudicial 2. There are times it can be though – Ds only witness was convicted of similar crimes and they are friends – can be unfairly prejudicial TIME LIMIT – 10 years from the date of conviction or from the time that he was released from incarceration, whichever is later This is not absolute – it’s presumptive, unless court decides that probative value substantially outweighs its prejudicial effect. NOTICE: You have to give written notice against who that is going to be offered again so they have an opportunity to respond When there is a pardon, annulment or cert of rehabilitation you can’t use it a. If this is followed by a subsequent conviction you can use both of the convictions b. BUT, if there was a finding of innocence (later DNA) then can’t use it at all, no matter what Juvenile Conviction – if criminal and the witness is not the accused then the court can allow a juvenile conviction if they find it is necessary for a fair determination. Otherwise, not allowed at all Downloaded From OutlineDepot.com 7. Appealing a conviction does not mean it can’t be used as impeachment – can tell jury it is being appealed, but it can still be used as a prior conviction iv. FRE 608 – prior conviction evidence is a form of character evidence - character by specific act. But rule 608 deals with NONconviction character evidence. 2 types can come in: 1) Reputation opinion evidence like that which can come in under 404(a), but the only trait that can come in is the character for truthfulness. a. 608(a) is limited to reputation and opinion evidence i. Limitations – the only character trait is the trait for truthfulness or veracity – if it doesn’t involve honesty then it isn’t relevant to witness impeachment. ii. Can use character to rehabilitate, but you cannot offer good character evidence for truthfulness until after the witness has already been attacked for bad truthfulness b. 608(b) allows a limited admission of specific acts – cannot offer extrinsic evidence (can’t call another witness to talk about it, but can ask a witness on cross about a specific prior act that bears upon character for truthfulness) i. Allows question on cross examination, but absolutely bars extrinsic evidence to prove the prior bad act ii. Court has discretion to limit this by looking at 403 v. Prior Inconsistent Statements – just the fact that there is a prior statement is impeaching, whether or not it is okay for TOMA doesn’t matter for impeachment. 1. This is one of the oldest forms of impeachment and it is discussed in 413. Don’t even have to show it or disclose it to the witness before you use it. 2. Cannot offer extrinsic evidence unless the witness has and opportunity to deny or explain the statement 3. Refreshing recollection governed by FRE 612 – you can use your witnesses notes, or anyone else’s notes, or anything that might refresh their recollection. You could even serve the witness the dessert he had that day if it might refresh his recollection 4. 612 permit the opponent to request to see anything that was used to refresh recollection prior to testifying. The court must order you to turn this over. The consequences if you refuse is that the entire testimony of the witness has to be stricken from the record Downloaded From OutlineDepot.com f. g. h. i. vi. Impeachment by Contradiction with Extrinsic Evidence 1. Can impeach so long as it is not collateral to the case. Credibility not collateral Competence of witnesses – used to be a lot of people that couldn’t testify; now everyone is competent to testify. i. FRE 601 – every person is competent to be a witness unless otherwise specified in rules ii. FRE 605 - Judge of case can’t be a witness in that case 1. 605 – don’t have to object to preserve for trial. Judge should just know better. iii. FRE 606 – Juror can’t be a witness in a case 1. 2 parts a. Jurors testifying at the trial – a member of the jury may not testify as a witness for which the juror is sitting – just like judge. But you DO have to object to preserve the error i. If the juror is called to testify, then there can be an objection outside the jury b. Juror can be called to impeach a verdict after the trial is over – prohibits juror from testifying about the actual course of the deliberation. What is permitted is testimony concerning extraneous prejudicial information (outside influence brought to bear on the jury) iv. If the person is capable of telling the truth and is willing to take an oath or affirmation to do so, that is all that matters in making the person competent to testify. Dead Man Statutes – something that does not exist in the FRE because it doesn’t come up in federal cases. FRE specifically defer to the state rules if comes up in a diversity case. i. Where death has sealed the lips of one party, the law seals the lips of the other. ii. This is so that no one can take advantage of the death of his adversary by lying about what they intended to do. iii. Some are pretty absolute, others permit some evidence to be given by the opposing party, assuming that there is some corroboration. Understanding Obligation to be Truthful – a completely insane person can be competent to testify, so long as they understand that they need to be truthful i. Can be a problem with very young witnesses to tell the difference between truth and fantasy, so therefore before they can testify, some judge’s want to hold a dialogue with the child to make sure they understand the difference. Requirement of Personal Knowledge – FRE 602 – you can’t testify about something unless you have personal knowledge about what you are Downloaded From OutlineDepot.com VII. testifying. This often intersects a bit with the hearsay rule. CA rule is virtually identical to the FR. j. Hypnotizing - Not very well understood but anything remotely suggestive can implant information into the persons memory. i. No specific FR about this though ii. Rock v Arkansas - US Supreme Court 1. Said that criminal defendants can admit hypnotic testimony, but it isn’t always admissible 2. Was allowed in this case, but doesn’t always have to. Usually not all is excluded, but it depends on the state law. Authentication and Best Evidence a. Authentication – process of establishing that a piece of physical evidence is what you claim it is. i. So saying that contract is the contract at issue, or the gun is the murder weapon. Basically have to call a witness to establish this by laying foundation ii. FRE 901 – gives general guidance on how to authenticate and provides illustrations. This is not exclusive though 1. 901(a) says that you need to give evidence sufficient to show that it is what it purports to be 2. Before can be before jury then have to show that trier of fact can find that it is what you say it is. This is laying the foundation iii. FRE 902 - provides a list of documents that are self authenticating 1. Sealed documents, snickers wrapper iv. Authenticate x-ray – this needs to be authenticated by process. Can be an issue with computers too. Need to establish chain of custody – keep track of who had possession of it. v. Audio Tapes – sometimes you will have bugs to catch illegal activity, it is it a monitored audio tape though from the officers then it can be authenticated, but if the person who was running it couldn’t hear the conversation? Then how do you authenticate? You have to be able to lay the foundation to show that the tape was capable of catching the conversation, that the person running it knew how and voice recognition. 1. Prove no material alterations or deletions as well. 2. Audio Tapes are a really tough thing to authenticate vi. Demonstrative evidence – charts, graphs, made up type things. Not even always admitted 1. Foundation – needs to be a fair and accurate representation of what it purports to represent b. Best Evidence Rule (1001-1008) i. actually no rule that requires you put on best evidence (any relevant evidence is admissible) Downloaded From OutlineDepot.com VIII. ii. originally developed to keep duplicates of writing out of evidence (before copy machines so more likely to have errors when copying) iii. primary aim of BER is to keep out other secondary evidence (trying to keep out testimony of what document said, what was in picture, or what recording sounds like) iv. only kicks in where what you’re trying to prove is the content of writing, picture, or recording 1. ex. if trying to prove terms of written K- can’t just call party to testify about terms- need to offer K itself v. definitions found in 1001; 1002 requires production of original; 1003 says duplicate can be offered instead of original unlessgeneral q as to authenticity or would be unfair to admit duplicate (usually happens when have partial copy) vi. several provisions excuse production of original—1004- if original has been lost or destroyed through no part of party who wants it in; once you’ve lost original you’re not required to produce duplicate (once original destroyed you can offer ANY type of secondary evidence); also if can’t be obtained by judicial process (ex. K in Jamaica); if party against you has original; lastly, where writing, photo, or recording is collateral to case vii. 1005- public records; viii. 1006- voluminous writings- can use summary and production of original is excused but must be available; ix. 1007- if opponent has either admitted in writing or has testified in deposition or proceeding can just use that (don’t have to find original) x. Duffy case - t shirt found in stolen car w/ D.U.F.- FBI agent wanted to prove it was duffy who stole 1. instead of offering shirt they testified as to content of shirt 2. D raised issue on appeal that violates BER—does it?—no b/c court said not a writing 3. so what is it if not writing?—court said it was a chattel (overlooks that chattel isn’t probative unless take writing into account); court also said this was collateral (doesn’t go to heart of case) 4. case here to show that sometimes court strain against BER if have to Lay and Expert Opinion Testimony a. FRE 701 removes the absolute common law bar – providing that if the witness is not an expert than opinions and inferences have to be 1) Rationally based on perception of witness – personal knowledge and that the opinion is rationally based on perception 2) Helpful to a clear understanding of the witnesses testimony or to a fact at issue – kind of opinion that helps jurors Downloaded From OutlineDepot.com 3) Cannot be based on scientific, technical or other specialized knowledge dealt with in 702 (expert testimony) b. Routinely accepted opinions: - Estimates of speed (limited to adults) - Distance (ballpark) - Temperature - Identification of a person - Value of own services or property - Common odors that most people could recognize by smell - Emotional or mental states of people with whom the witness is familiar - Some opinions of certain types of behavior (intoxication) - These are things typically within the experience of most witnesses c. Limited if witness has to guess or speculate – this is not based on personal knowledge, so doesn’t work for lay opinions d. Expert Witness Testimony: No need for personal knowledge, can give opinions, doesn’t even need to rely on admissible evidence, can be inadmissible evidence, so long as there is some determination that it is reliably enough for an expert to use to form an opinion i. Rule 702: Based on sufficient facts or data that would be helpful to the jury. Needs to be the product of reliable principles and methods, based on a reliable application of that to the facts of the case 1. Also has to be relevant to the issue in dispute (401 and 402) 2. Judge is the gatekeeper ii. Can be based and facts and data at and before the trial, Can be based on inadmissible hearsay 1. If on admissible evidence, then the judge needs to look at whether the value to the jury is greater than the possibility of unfair prejudice to the jury for relying on what might be inadmissible (last sentence of 703) iii. Balance tips in the favor of unfair prejudice (more likely out than in) iv. Rule 704 a) Allows an expert to give an opinion even as to an ultimate issue in the case (ex: cause of death) b) Federal limitation – cannot state opinion as to whether D did or did not have the mental state constituting an element of the crime charged or a defense thereto a. Can testify to nature of mental illness, but cannot say ―he is insane‖ b. Not just for insanity though – if element of crime is willfully, then can’t say if it was willful v. FRE 705 – once qualified as an expert counsel can go right to the heart of the matter Downloaded From OutlineDepot.com IX. vi. FRE 706 – court appointed experts vii. Novel Scientific Theories and Techniques – increasingly being asked to testify on scientific theories and techniques being used to reach and opinion. Some of this is new science 1. 2 tests: The issue is the reliability of the underlying science, because the expert testimony rules put the judge in charge of being the gatekeeper as to excluding evidence if on unreliable principles. a. Rule 703 discusses this - Is it reasonable for an expert to rely on this. 2. Judge has to make a determination as to whether this novel science is reliable. The old federal standard was the Fry case – found that lie detection machines don’t have general acceptance, so therefore a witness on a lie detector could not testify. viii. Daubert case did not like the fact that the judges had to defer gate keeping to a group of scientists. 1) Whether the theory or technique has been or can be tested 2) Whether it has been subjected to peer review 3) The error rate of the technique 4) Whether the theory or technique is generally accepted by experts in the pertinent field Privileges a. FRE 501 is this rule. It is very nonspecific that doesn’t really address any particular privilege. i. Privilege will be determined according to whatever law governs the case. ii. Many jurisdictions, like CA, have codified all of the privileges that exist. FRE recognizes privileges as common law through case law development b. Privilege falls into 3 categories: 1) Privilege not to be called as a witness at all a. Self incrimination, spousal privilege 2) Blanket prohibition on eliciting any testimony on a certain subject a. Secret ballot, executive national security, trade secret 3) Confidentiality of communications a. Attorney/client, pysch patient/doctor, priest/parishioner b. 3 requirements for existence: i. Communication has to be between persons in a legally protected relationship ii. Has to be limited to some kind of communication – someone in the relationship has said something to someone else – only communication is protected (does not have to be verbal) Downloaded From OutlineDepot.com iii. Communication has to be made in a setting where it is intended to be confidential c. If these are met, then the holder of the privilege (client, patient, etc) can assert it or the person whom to it was made can or can have a duty to assert it on the beholders behalf d. These do not exist automatically, they have to be asserted, and if they aren’t asserted you have waived it and it is gone e. Can only block testimony if there is a timely objection to that testimony c. Spousal Testimonial privilege: i. Only valid from the day married till the day divorced ii. Holder of privilege is testifying spouse - If wife of drug dealer is willing to testify against him then they can hear that testimony iii. Exceptions – if joint participants in crime (5th might block some) the privilege is usually found not to exist. iv. If it involves abuse of a child or each other then the privilege doesn’t apply d. Spousal Communication privilege: i. Survives marriage/death ii. Blocks testimony regarding communications – spouse can still be forced to testify about what she observes. iii. Holder – parties to communications (either can invoke it iv. Exception – abuse v. Has to be intended to be confidential e. Attorney-Client Privilege: i. This is recognized in every jurisdiction. Codified in CA. Prevents from disclosure confidential communications between the client and attorney if they are for the purpose of obtaining or rendering legal services. The protects disclosure of the confidential communications, the holder of the privilege is the client, not the attorney, but the attorney is bound to assert the privilege on the client’s behalf. ii. Client – anyone who seeks legal services (not anyone that just talks to a lawyer, you have to actually be seeking legal services) – you don’t have to pay for it though (if PD still covered) 1. Doesn’t matter if the attorney or the client decide not pursue the case after initial consultation. What matters is that the communication be made for the purpose of obtaining or receiving legal services. iii. Lawyer – member of the bar or someone that the client reasonably believes is a member of the bar. 1. If a lawyer is also your accountant, then if they are acting as an accountant, then it doesn’t apply, only if acting as a lawyer. Downloaded From OutlineDepot.com X. iv. Protects things intended to be confidential – not things like the clients name. 1. Needs to be made in a confidential setting – not in elevator or bar, or with people listening, unless the other people need to be there (paralegal there for lawyer, interpreter), this doesn’t change the confidentiality v. As with other privileges this can be waived – expressly or impliedly. If impliedly, then that means someone has disclosed something. Even an inadvertent disclosure waives the privilege. 1. Authorized disclosures and unauthorized is a minority rule, where only authorized waive the privilege vi. Future Crime/Future Fraud Exception: If client is consulting you to help him run a drug enterprise that is a future crime and therefore that is not privileged information. If it is a past crime it is privileged. 1. What if said he is going to lie on the stand – what do you do? This is a future crime of perjury, so you are supposed to tell your client not to do it and then you have the duty to withdraw as counsel. So if he does lie then you can be forced to disclose information about intent. vii. What is protected as confidential is not the murder weapon that your client gives you. You have a duty to turn that over to the police as an officer of the court. viii. Missing Link exception – no privilege to identity of client unless it is the last link in an investigation that will incriminate your client because the client intended the name to be kept confidential ix. Whistleblower exception – client who has turned an organization or company in, then you don’t have to disclose their name x. Corporate Clients: Court recognizes that even level employees can have information that needs to be protected xi. Work Product – can be overridden by a strong showing of necessity, not as strong as attorney/client f. Psychotherapist-patient privilege – if this is the subject of the litigation then this is not privileged g. Physician – Patient – not widely recognized federally. Exception is that if the communication is for purpose of treating an injury of condition that is the subject of the litigation then the privilege doesn’t exist. Allocation of Proof; Judicial Notice; Presumptions a. Judicial Notice: Governed by FRE 201 – only applies to adjudicative facts. Not legislative facts. i. Adjudicative facts – used to resolve the issues in dispute in a particular case – facts you would have to present to a jury ii. Legislative facts – a legislator or governing body creates policy facts affecting the enactment of law. – Not usually in dispute in a law suit. Downloaded From OutlineDepot.com iii. A judicially noticed fact (one that the court can take judicial notice of) cannot be subject to a reasonable dispute. Permits a party to avoid calling a witness to prove something so well known you can’t dispute it anyway. iv. If a court takes judicial notice it has the following affect: 1. In civil – the jury will be told that it MUST accept the judicially noticed fact. a. Will preclude party for giving contrary evidence b. Can take judicial notice of a fact at anytime – can be during trial or on appeal 2. In Criminal – the jury is not found to find the judicially noticed fact – it is not required to do so – they can reject it and the defendant can introduce contrary evidence. a. D has a right to have his guilt or innocence determined by the jury – cannot tell the jury they MUST accept a certain fact. b. But this is not likely going to be a fact that the jury must disregard, even if they have the power to do so, nor is it likely that the other side will introduce contrary evidence c. Because jury not found to take it as fact, the only time you can take judicial notice is in trial, cannot do it on appeal v. Because of the impact of judicial notice, the rules are pretty narrow about what is the proper subject. vi. 201 specifies that it must not be subject to reasonable dispute because 1. It is generally known in the district of the court 2. Its capable of accurate information by relying on a source whose reliability cannot be questions b. Presumptions: i. Prove case without evidence. 3 Types that exist: 1) Conclusive presumption – not an evidentiary device, actually principle of law (a person with black lung disease is completely disabled) – you can’t offer counter evidence, not rebutable 2) Permissive Presumption – not a presumption at all, it is an inference. If evidence is presented that the streets and sidewalks were wet, the jury could presume that it had rained, but it is not mandatory and they just CAN presume it rained. It can be rejected 3) Rebut able Presumption: shift the proof of evidence and in some states shift burden of persuasion. a. 2 burdens attach to P at start of the case i. Burden of Production Downloaded From OutlineDepot.com ii. Burden of Persuasion – P has to get past 50% mark to win the case b. Rebutable presumption shifts burned of production from one party to another in the absence of evidence. Sometimes you have an issue such as the Bailees Presumption – goods in possession of valet and comes back in bad condition, it is presumed that the valet hurt the car (negligence). This is presumed, but it is a rebutable presumption. Shifts to the D (the valet) the burden of producing evidence to prove it wasn’t the result of his negligence c. This shifts to the party who is most capable of having the evidence on the issue, the burden of producing it. P always starts with burden of production, but can shift it to D. If D can’t rebut the presumption, then the P wins (even a directed verdict) ii. Bursting Bubble Theory (Thayer approach) – if any counter evidence bursts the presumption, (valet says there was lightening in the area), this shifts the burden, (P has to prove that the damage wasn’t lightening) 1. Criticism – seems anomalous that you can create a presumption that is so strong and with just a tiny piece of counter proof then the presumption is gone iii. Professor Morgan’s Approach – If there is a presumption – under this approach the burden of production shifts, but also the burden of persuasion shifts. When both shift, then now the D must prove by whatever the standard of proof is in the case that the cause of the damage to the car was an act of god. So not just any proof will do – a couple flashes of lightening can’t do it iv. Counter Evidence - FRE 301 – rules drafters are clear – a presumption imposes the duty of burden of production, not burden of persuasion. So it adopts the bursting bubble approach. So, any counter evidence will rebut the presumption. 1. CA went with both approaches, but there is a division as to which works for which presumption. 2. CA 603 and 604 – a presumption there to provide missing evidence – if it is established to facilitate the determination of the action in easily provable evidence, CA follows bursting bubble 3. But some exist for social policy such as a child born during a marriage is the child of the husband. This shifts the burden of persuasion as well, which is the Morgan approach Downloaded From OutlineDepot.com v. Under FRE 302 the FR defer to the state if you are in a diversity case – if deferring to state, then you look to state rules for presumption. If diversity in CA, then you have to decide if social policy or missing evidence c. CRIMINAL CASES: Can’t ever shift to criminal D the burden of producing evidence, it is always on P in crim cases. All you can do in a criminal case is urge the jury to draw an inference. So what is a rebutable presumption in a civil case, becomes a permissive presumption in a criminal case d. Presumption in EVERY jurisdiction, that if a letter is mailed with proper address, stamped and put in the mail that is got there. The amount of time varies from 3-7 days depending on jurisdiction. i. This shifts burden to receiving party to say they never received it, which bursts the presumption