Perrin_Evidence

I) Relevance FRE 401 Evidence needs: a) Any tendency 1) Needs to help the case a little—add a brick, not the whole wall. b) To make the existence of any material fact 1) Old Chief I [admit name of previous felony conviction]: The material fact does not have to be in dispute; evidence can be relevant to prove a point that all the parties agree on. Policies making evidence relevant: (A) Party Autonomy—letting each party decide which evidence it will offer. (B) Descripitive richness—telling a colorful story to build momentum and convince jury that it is morally okay to convict. (C) Jury Expectations—telling story with full, detailed evidence and concrete proof that jury expects. c) More probable or less probable than it would be without the evidence. 1) Circumstantial evidence needs evidentiary hypothesis. 2) Start with what is known—What was defendant’s conduct? 3) Be able to prove each level of reasoning to convince reasonable juror. 4) Okay if there is an alternative explanation for the behavior; just need to prove point is more probable than with no evidence at all. 5) Prob. 2-A p. 62: Widow sees Jay speeding 30 miles from accident, later he is in accident. Hypothesis: (1) Known conduct—Jay was speeding 30 miles from the crash (proof-widow saw), (2) People maintain high speeds on straight highways on clear days (proof-driving conditions, cruise control), (3) Jay was speeding at the time of the collision. 6) Robber’s Flight from police: (1) D ran from the police (proof-girlfriend saw), (2) running usually indicated consciousness of guilty, (3) D ran for consciousness of guilt from this crime (ran a day after the robbery and two years after another pending warrant had been issued), (4) because D was conscious of guilt for this crime, he is guilty of it. FRE 403 Evidence needs: Policy: Because we are afraid that the jury will overvalue this evidence, we exclude it. d) Probative value that substantially outweighs 1) Chapple: W say ―Dee‖ killed victim; evidence: pictures of victims head wounds from gunshot. Probative value small because facts in the photo were not in dispute. The only issue tried was whether or not the defendant was ―Dee.‖ (contra FRE 401—these photos are relevant to cause of death though no one disputes how victim died.) 2) Old Chief II: probative value is reduced if alternative means of proof exists. D’s stipulation that he is a felon is conclusive, alternative proof of element in current charge of being felon with a weapon.1 3) Demonstrative evidence is not automatically without any probative value, even though it cannot be used as basis of a judgment. e) Substantive concerns: UNFAIR prejudice, confusion of issues, or misleading the jury, AND 1) Chapple: photos of brains and gunshot wounds would inflame jury. 1 Note this holding gives the defendant more control over the type of evidence that the prosecutor presents. But Souter says ruling is limited because state is trying to prove D’s status as felon and not D’s conduct. If state was trying to prove D’s conduct, the state’s autonomy in presenting case would prevail to dictate that the probative value of the evidence is stronger. 1 2) Old Chief II: name of the defendant’s felony conviction would lure jurors to conclude that defendant had propensity to commit crime charged. PROPENSITY EVIDENCE = excluded under 403 as unfair prejudice. (A) Problem 2-D p. 81: D accused of killing wife; state offers testimony of women’s shelter counselor where wife came for a month to get a divorce from D. Evidence looks like propensity evidence (because D hit wife in past, he had bad character and had propensity to kill her). To avoid exclusion under 403, state must argue that the evidence is relevant to an element in the crime (intent to kill). (Hypo: (1) wife went to shelter (2) wife went because she was afraid of D (3) wife was afraid because D had been hostile (4) people don’t abuse unless have hostile intent (5) D had hostile intent and acted on it this time to kill wife). (B) Johnson: Admit the axe used in the assault; could have admitted an example axe to show the type of weapon used as demonstrative evidence, but could not admit any dangerous weapon found on D’s property if it has no connection to the crime. Because an abundance of dangerous weapons looks like propensity evidence f) Procedural concerns: undue delay, waste of time, or needless presentation of cumulative evidence. g) Policy: balance tilts in favor of admissibility. h) FRE 404-412: SPECIFIC APPLICATIONS OF 403 1) Character Evidence (A) IS IT PERTINENT? FRE 404(a) (a) Pertinent = relevant. (i) Example: In trial for battery; evidence that D is honest is not relevant, but evidence that he is peaceful is. (b) Need evidence of specific trait, not just character generally. (i) Example: ―good parents who were willing to do anything for their kids,‖ ―good reputation for sexual decency,‖ ―law abiding,‖ ―never head anything ill about D.‖ (B) WHO IS THE OFFEROR? FRE 404(a) (a) General Rule: Cannot offer evidence of character if it is relevant only to show propensity— Cannot admit evidence of a person’s character to prove what they did on a certain occasion. [Policy: Do not prove guilt by proving who a person is.] (b) Six Exceptions: (i) FRE 404(a)(1): Character of accused offered: 1. By an accused, or a. Policy: Because the defendant’s character has already been impugned by the criminal charge, allow him to rebut the charge with character evidence. 2. By the prosecution to rebut the same, or a. Note: Prosec. can only rebut about character traits that are within the scope of the defendant’s case in chief. Example: On direct in battery case, D offers testimony of priest who says D is peaceful person; prosec. on cross, can offer evidence of D’s violent nature to rebut—but not evidence of his tax evasion or embezzling. 3. By the prosecution when the accused has offered evidence of a trait of character of the alleged victim under 404 (a)(2). The prosecution can offer evidence to prove that the accused has the same character trait. 2 (ii) FRE 404(a)(2): Character of alleged victim offered: 1. Offered by an accused, or 2. By the prosecution to rebut the same, or 3. 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. (iii) FRE 412: Victim’s Past Sexual Behavior or Predisposition 1. General Rule: Cannot admit evidence of victim’s other sexual behavior or predisposition. 2. Exceptions: a. Criminal Case: Admit i. IDENTITY: Evidence of specific instances of sexual behavior of victim to prove that somebody else is sources of physical evidence ii. CONSENT: Evidence of specific instances of sexual behavior between victim and accused, offered by the accused or the prosecution.2 iii. iv. CONST.: Evidence that would violate const. rights of accused if excluded. Examples: Proof of victim’s sexual predisposition to prove accused’s state of mind about victim’s consent—victim has a reputation for saying no when she means yes during sex. Proof of victim’s prior sexual behavior to show false motive for charge of rape—D wants to ask victim if she accused him of rape to preserve her relationship with her boyfriend. b. Civil Case: Admit i. Opposite 403: Sexual behavior or predisposition of victim if probative value substantially outweighs danger of harm to victim and unfair prejudice to either party. ii. Sexual reputation of victim if placed in controversy by alleged victim. c. Procedure: i. File written motion about evidence 14 days before trial ii. Serve motion on all parties and the victim iii. In camera hearing where victim and all parties are heard. iv. Record of hearing and motion are sealed. (iv) FRE 413: Criminal Case—Defendant’s Past Sexual Assault 1. Evidence of specific acts can be offered by the prosecution in case in chief. 2. Admit evidence to show propensity—D is rapist; therefore he likely raped this victim. 3. Policy: Sexual offenders have high recidivism rates, and it is already too hard to prove sex crimes. 4. 403 analysis of this evidence—the likelihood that the jury will use the past crimes to label the D as a rapist and punish him for the label is not unfair prejudice. 90% of time this evidence passes the 403 balance, because 413 makes it highly probative. 2 P can argue that should not admit evidence of consensual sex between victim and D, because jury will give too much weight to evidence and assume that victim gave D a blanket consent for all sex, including the alleged rape. 3 a. Evidence of past sexual assault is more probative if it is close in time to the charged offense, and it is similar in nature to charged offense. i. Prob. 5-L: Guy takes girl to tree on military base, begins to fondle them, and then holds them down to try to rape them. High probative value of prior attempt by D to rape a girl on the base—one year earlier and similar progression of consensual to nonconsensual touch. b. When the prior offense did not result in a conviction, the need to prove that it occurred raises efficiency concerns. c. With each prior offense admitted, the next prior offense becomes more cumulative, so less likely to win 403 balance. 5. Question of whether past sexual offense occurred is jury question. 6. When D accused of sexual assault offense, a. Admit evidence of D’s commission, attempt, or conspiracy in another offense of sexual assault (Past offense can be uncharged, charged, or conviction): i. Contact without consent between D’s body part or object and genitals or anus of another. ii. Contact without consent between D’s genitals or anus and any part of another’s body. iii. Deriving sexual pleasure from killing, injuring, or causing pain to another. b. Consider evidence for its bearing on any matter where relevant. 7. Give notice to D at least 15 days before trial. (v) FRE 414: Criminal Case—Defendant’s Past Child Molestation 1. Evidence of specific acts can be offered by the prosecution in case in chief. 2. When D accused of child molestation, a. Admit evidence of D’s committing another offense of child molestation i. Child—person younger than 14. ii. Attempts or Conspiracy to do genital, contact, anus, pain stuff. b. Give notice to D at least 15 days before trial. (vi) FRE 415: Civil Case—Defendant’s Past Sexual Assault or Child Molestation 1. Evidence of specific acts can be offered by the P in case in chief. 2. When a claim for damages or relief is predicated on proof of party’s sexual assault or molestation, a. Admit evidence of Defendant’s other offenses of sexual assault or child molestation, and b. Notice to party by 15 days before trial. (vii) CEC 1109: Criminal Case—Defendant’s Past Domestic Violence 1. Evidence of specific acts can be offered by the prosecution in case in chief. 2. When D is accused of offense involving domestic violence, a. Admit evidence of Defendant’s commission of other domestic violence. b. Unless event occurred more than 10 years before the charged offense, then only admit in interest of justice. 3. OJ Trial: OJ is an abuser, a wife-beater, a controller—therefore he killed Nicole. 4 a. Under federal rules, this is not allowed. The prosecution cannot introduce this kind of character evidence unless the D says that he is kind, flexible, and peaceful. Plus, this is highly prejudicial, propensity evidence. b. Under CA rules, this is admissible in case-in-chief, based on propensity because it is based on domestic violence (C) IS IT CRIMINAL OR CIVIL TRIAL? (a) Civil Case (i) FRE 404(a) and Exception 403(a)(3) apply. 1. Majority: 404(a)(1)(2) do not apply to civil cases; do D in civil case cannot offer evidence of his character or victim’s in case in chief. 2. Perrin Dicta: 404(a)(1)(2) apply in civil cases with criminal overtones. (ii) FRE 412(a) applies, and exception (b)(2) applies. (iii)FRE 413 and 414 apply through FRE 415. (b) Criminal Case (i) FRE 404(a) and Exceptions 403(a) (1-3) apply. (ii) FRE 412 and exceptions 412 (b)(1). (iii) FRE 413 applies (iv) FRE 414 applies (D) WHAT IS THE FORM? FRE 4053 (a) ON DIRECT EXAM, (i) General rule: Opinion and reputation are only forms of character evidence allowed. 1. Opinion—―D is jerk.‖ 2. Reputation—―I heard D is jerk.‖ (ii) Exception: FRE 405(b): When the character of a person is essential element of a charge, claim, or defense, party can offer proof of specific instances of character. 1. Criminal: RARE 2. Civil: a. Defamation—proving the truth of a defamatory statement that goes to the P’s character or proving that the victim had such a bad reputation to begin with that damage was minimal. i. ―D called me a liar.‖ D: ―I said it because it was true.‖ Character issue— Admit character evidence to show whether P is a liar. ii. ―D said I stole from him on Tuesday.‖ D: ―I said it because it was true.‖ No character issue—issue is not P’s character, but whether or not P stole on Tuesday. b. Negligent entrustment—proving that the person that D entrusted with the car was by nature careless; proved with specific instances of the keeper’s prior negligence. c. Child Custody—proving fitness of parents with specific instances of conduct. d. Wrongful death—proving value of the victim’s life based on their character— admit evidence that person was a drunk or a screwy person. (b) ON CROSS-EXAM, specific instances of conduct as evidence of character are allowed. 3 Note: 404 and 405 limits do not apply when not offering character evidence to prove conduct on a particular occasion. For example—If a D is trying to prove his state of mind –that he reasonably believed that the victim was attacking him, he can offer specific instances of the victim’s conduct on direct exam. 5 (i) But purpose of cross-exam is only to impeach the W’s knowledge or judgment of the D’s character. Examples: 1. If W testifies to D’s peacefulness as opinion, prosec asks ―You say D is peaceful, but did you know he kicked two cats on the way here, today?‖ 2. If W testifies to D’s reputation as being peaceful, prosec asks, ―Have you heard?‖ (ii) Because impeaching W and not proving D’s guilt, can offer evidence of prior convictions or arrests. In fact, if the W is testifying about D’s peacefulness, and prosec offers evidence of D’s arrest for disrupting peace—then notoriety of arrest undermines W’s credibility even more. (iii)Prosec can ask about any conduct to impeach W’s knowledge, but he must have a good faith basis for the question; need some evidence (even hearsay) to conduct occurred. (iv) Prosec is stuck with the W’s answer. The prosec cannot/does not have to prove the truth of the assertion in the question. (E) WHAT IS THE FOUNDATION?4 (a) Opinion—need evidence of personal knowledge (FRE 701). (i) Delbert video: man at fish fry for Delbert says that ―Delbert is not the kind of person who could do this.‖ W basis this conclusion the fact that his son likes Delbert, and that Delbert is fine talking. This is probably not personal knowledge of Delbert’s character. (b) Reputation—need evidence of personal knowledge; example: show the W is a member of a community where the reputation is held. (F) EVIDENCE OF OTHER OTHER ACTS OFFERED FOR NON-PROPENSITY PURPOSE (a) FRE 404(b): Criminal or Civil, By state or defendant. Four Part Test (i) Judge decides that purpose of evidence of other wrongs5 is not propensity6: 1. Motive a. Motive: anything that reduces the number of people who would have likely done the crime. b. Admit proof that D trafficked in drugs to show motive for using cash and not recording his transactions in tax evasion case. c. Admit proof of an affair. d. Admit 911 tape with sound of wife calling while husband is beating her as proof of motive to kill. 2. Opportunity 3. Intent a. Past wrongs that are similar to the one ―intended‖ in the charge. Prob 5-F: D showed up at motel to meet buyers of coke, but D did not have enough coke on him to sell to the buyers, and he left without even offering to sell what he had. D’s intent becomes issue, when D claims that he planned to take the buyers’ money and run. So Prosec.—offers proof of D’s past cocaine sales show that D had 4 5 Foundation evidence can be proved by specific instances of conduct—outside hearing of jury. Dowling: The prior wrong may have been charged and resulted in an acquittal. 6 Huddleston: Judge decides whether there is evidence that a reasonable juror could decide the prior act occurred; and jury decides whether there is a preponderance of evidence showing that the prior act occurred, and thus whether the evidence/point is credible. 6 4. 5. 6. 7. 8. entered a room like this and sold drugs over and over again, so he had intent to sell on this occasion. b. Malice—admit D’s prior misdemeanor convictions for drunk driving to prove that D knew the risk that his drunk driving posed to others. Preparation Plan a. Need overarching scheme or grand design which encompasses both the charged and uncharged offense; each crime should amount to a step in executing the plan; not unlinked plans or crimes that happen to occur close to each other with similar facts. b. Prob. 5-H: Evidence that Neely gave bribe money to fix criminal cases on many occasions is relevant proof of a plan or design. c. Ewoldt: Evidence that D molested the victim’s sibling admitted as evidence of plan—allowed admission of the prior event, even though no proof of overarching scheme. [Note: in CA, can use child molester rule to admit the prior to show that D is a molester—no need to worry about connection with current victim to show plan.] Knowledge a. Admit prior cocaine offenses to prove that D knew drugs, when he said he did not. b. Admit evidence that D was a veteran and had killed several men in his tour of duty—knowledge of how to kill. [Prior conduct does not have to be wrong or criminal.] Identity or Modus Operandi a. Need: i. Distinctiveness: Features of prior offenses are so unique that they amount to a ―signature‖ or distinctive modus operandi ii. High degree of similarity between the prior offenses and the current one. b. Prob. 5-G: Prior 8 robberies done by D between 9-11a.m. and with alternating colors of getaway cars. Admit to prove D was robber in current charge which contains these characteristics. c. Prob 5-L: Evidence of one prior attempted rape that occurred in similar fashion to the charged rape is not enough to establish identity. d. Reverse 404(b): Defendant offers proof of prior crimes with similar, unique features that were committed by X and then shows that this crime had those characteristics to prove that X was the criminal in this case. Absence of Mistake or Accident a. Trial for possession of child pornography; offer proof that D had other similar material as proof that his possession of kiddie porn was not a mistake. b. Prob. 5-I: Proof that mom has been taking kid to ER with bruises on three prior occasions to the last abuse which resulted in death. Mom claimed that each injury caused by accidental falls down stairs. Admit evidence of three prior trips to ER to show no accident. [High unfair prejudice—because evidence of 3 priors will make D look like bad mom—jury will be pissed and want to put her in jail no matter what.] 7 c. Brides in Bath: D’s brides die within months or weeks of marriage by drowning in bathtub; admit evidence of later 2 drownings when charge D with the first. H: No need for the ―other act‖ to be a later one. High probability that these three murders were not accident. 9. Counter Entrapment Defense a. Admit proof of D’s prior criminal behavior to show that government action did not induce him to commit a crime that he would not otherwise have done. 10. Consciousness of Guilt a. Admit proof that D bribed a witness. 11. Contradict D’s claim that he has never been in trouble before. (ii) Evidence is relevant for nonpropensity purpose. 1. Ask: What is the issue in this case? Does the evidence go to that issue? Look for an element of the offense charged and a nonpropensity purpose. 2. Limit: Prosec. cannot offer evidence of other act by D unless D or the law has made it an issue in the case! 3. Prob. 5-H: D charged with violating Hobbs Act (criminal liability for specific types of bribes) and RICO Act (criminal liability for pattern of behavior). Evidence that judge regularly received envelopes of money and that one defense attorney paid him off on several, non-specific cases is relevant as a pattern to RICO charge, but not to the Hobbs Act—because no one knows what cases specifically were influenced by bribe money. (iii) 403 Balance (with 103—ask if a limiting instruction will correct unfair prejudice). 1. Risk of unfair prejudice that ALWAYS exists when admit evidence of prior wrongs:7 a. Jury will misuse the evidence as propensity, or b. Jury will hold D accountable for the past conduct, regardless of present proof. 2. When D uses 404(b), the unfair prejudice concern is different. Weaker? (iv) Limiting Instruction on request. 2) Habit (A) FRE 406: Proof of Habit is freely admitted even to prove propensity. (a) Evidence of (i) The habit of a person or of the routine practice of an organization, 1. Habit: reflex in response to same set of stimuli; meeting a particular circumstance with the same behavior. a. Factors of Habit: i. Sample size: Need numbers—how many times did the person do this? ii. Uniformity of response: Need testimony of someone who has seen the even occur uniformly—did the W see the person respond the same way in each situation? Ex.: Admit evidence of business transactions between one of the parties and a third person to prove that the party made the same bargain or proposal in the litigated situation. iii. Not really volitional—ex. the habit of praying or going to church is not a habit, because it is largely an act of will; intemperate habits like drinking or 7 This exists in all scenarios of admitting prior wrongs—even 413, where the rule says it does not matter. Must acknowledge it! 8 taking drugs are not habit, nor are repeated assaults in an assault case. Drugs/alcohol/acting violently are volitional conduct. b. Prob. 5-M: Two friends of dead car accident victim testify that he was a careful driver. This is not habit evidence, because it does not include the number of times that the friends observed the decedent drive carefully. c. Prob. 5-N: Coworker sees P heat Freon cans ―often‖ in warm water when he is refilling an air conditioner and the can is not spraying fast enough. This is not acceptable habit evidence, even though have personal knowledge of W—because need numbers—how many times is ―often‖? d. Prob. 5-O: Insufficient foundation to show habit of INS warrant procedure through testimony of W who said that INS always did the same thing, but that he had never actually seen the process. (ii) Whether corroborated or not and regardless of the presence of eyewitnesses, (b) Is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 3) FRE 407: SUBSEQUENT REMEDIAL MEASURES (A) General Rule: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. (a) Subsequent means after the injury producing event for THIS P. Ex: In 1994, manufacturer made car; in 1998, mftr changed design; in 2000, P had accident with a 1994 model car. Mftr. Change of model in 1998 is not covered by 407, because it occurred before this P had an accident. (B) Exception: This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as (a) Proving ownership, control, or feasibility of precautionary measures, if controverted, or (i) How to prove feasibility controverted: 1. W says it was physically or technically impossible 2. W says, even if used, the measure would not have been successful, a. Motel adds peepholes on doors after rape; but sheriff testifies that the peepholes would not have changed the risk of rape. 3. W shows that the measure would have been so expensive that the product would not have been affordable anymore. (ii) Tuer v. McDonald: Tuer dies from lack of Heparin before surgery; after his death, hospital changes policy to provide patients with Heparin up to the moment of surgery. Evidence—hospital’s changed policy. Controverted? MD testifies at trial that MD could have restarted Heparin, but there was not reason too—because Tuer had unstable angina and continuing until surgery was risky. H: MD’s judgment call as to risk and benefit of continuing the Heparin did not controvert the feasibility of the treatment. (iii)To avoid application of this exception, the defendant will often stipulate to ownership, control, or feasibility. Stipulation: We could have done that thing, but we made a judgment call about the risk and decided against it. Stipulation prevents admission of evidence that the company later took the remedial measure. 9 1. Tuer: If hospital had stipulated to feasibility of Heparin, then could not admit evidence that its doctors use Heparin until surgery today. (b) Impeachment. (i) Tuer: Cannot admit remedial measures to impeach a simple contradiction in testimony (MD said that the risk of continuing the Heparin outweighed the benefit in continuing it; this was obviously a contradiction with reality—because Tuer died). Could only admit change in hospital policy if MD claimed that the pre-injury policy was the best that ever could have been—cannot use to contradict a balanced, judgment call that was based on the MD’s knowledge at the time. (C) Policy: (a) Safety of public; avoid creating disincentive for owners to repair problems. (b) Should 407 apply to product liability? In mass produced goods, economic pressure alone and not social policy under 407 makes companies fix their products. In CA, 407 does not apply to product liability. Federal rule added language about defect in product, design, or warning to make sure that product liability cases are included. When CA state claim is brought in federal court, the Federal Rules apply because the issue is procedural. 4) FRE 408 (A) Basic: Settlement amount and settlement discussions can’t be admitted in civil case to prove liability. (a) The Verdict: hospital administrator tells P attorney—this is ―tragic accident‖; ―we must do all that we can‖; ―we thought this was just‖ and amount of settlement—all these statements are excludable. (B) General Rule: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. (a) Must have dispute as to validity or amount of claim first! Prob 5-P: Farmer told by chemical company that they will pay any damages three times. FRE 408 does not admit these statements, because no disagreement as to amount of damages ever arose. (Admit as admissions). (C) Exception: This rule does not (a) Require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. (i) If something was not protected before it was shared in the settlement, the cover of settlement negotiations does not protect it. Rule does not protect facts that otherwise were admissible. (b) Require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. (i) A and B in car accident with C. C pays off B in a settlement. C calls B as a favorable witness in A’s suit against him. A can admit the proof of settlement to show that B is biased toward C. (ii) Jackson’s large settlement to child that accused him of abuse, causing the child to stop talking to prosec., could have been admitted if the prosec pursued the abuse charges, as effort to obstruct criminal investigation. 10 (D) Policy: Encourage settlement. 5) FRE 409 (A) Policy: Encourage responsible behavior; reward Good Samaritans. (B) General Rules: 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. (a) ―I am sorry. I was not paying attention. I’ll cover all of your costs.‖ FRE 409 only excludes ―I’ll cover your costs.‖ –not the apology or the admission. Contra: CA 1160(a): in civil case, cannot admit apology or benevolence, but can admit statements admitting fault. 6) FRE 410 (A) Policy: Encourage plea bargaining. (B) General Rule: 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 discussions: (a) a plea of guilty which was later withdrawn; (b) a plea of nolo contendere; (c) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (i) Proceeding: appearance before a judge, including the plea. (d) 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. (i) FRE 410 does not apply to confessions made to cops; unless: (ii) Statements made to a non-prosecuting authority may fit exclusion if the cop represents that he has authority to plea bargain. Test: Subjective proof--Did defendant rely on representation? Objective proof--Was it reasonable? 1. Prob. 5-Q: statements made to two secret service agents without AG present, when D expected to be meeting to plea bargain. Objective proof: the same secret service agents were present that had been present when the AG mentioned plea bargaining before; Subjective proof: D’s attorney said that he believed that were plea bargaining; Objective proof: agent asked for Miranda waiver—which is not typical in plea bargain—and AG had said that she was not ready to discuss plea at present. (iii)FRE 410 Protects Statements Made While Negotiating to Resolve Case for Others8: Prob 5-R: Two guys meet with AG and ask that their girlfriends be released; they then make incriminating statements; AG releases the two women. If the men gave the incriminating statements on the condition of the girl’s release, then the government released the girls and it deserved admission of the incriminating statements. If the men gave the incriminating statements to attempt to bargain a plea and AG released the girls because he happened to realize that they were innocent, then do not admit incriminating statements. (C) Exception: Completeness Doctrine (a) Admit these statements when made: (i) [FAIRNESS REQUIRES THE WHOLE] 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 8 I am not sure that this is right. 11 (ii) [LYING UNDER OATH IN PLEA NEGOTIATION OR TO JUDGE WHEN EXPLAINING THAT PLEA IS VOLUNTARY] 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)NOTE: NO EXCEPTION FOR GENERAL IMPEACHMENT. 1. But D can waive exclusion for impeachment if he knowingly, intelligently, and voluntarily waives his right to exclusion during the plea bargaining discussion. 2. Most prosecutors ask for this waiver when plea bargain. (D) ACTUAL GUILTY PLEA IS ADMISSIBLE; GUILTY PLEA IS ETERNAL—because the judge is careful to determine that it is made voluntarily. 7) FRE 411 (A) Policy: Encourage people to have insurance. (B) General Rule: 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. (a) Note: Prohibits evidence that the person was NOT insured. (C) Exception: This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 8) FRE 412 II) Testimonial Evidence: Witness Competency a) FRE 601: Presume everyone is competent to testify, unless otherwise provided. Allow issues of competency to go to weight. 1) Lightly: W, who as determined to be criminally insane in a prior proceeding and incompetent to stand trial, determined competent to serve as W in Lightly’s case. H: W was competent, because his regular treating physician said that he could understand the oath, recall what he saw, and communicate it. [Weight—on cross exam, the prosec. will bring out the W’s craziness to convince the jury that they should not give his testimony much weight.] 2) Note 4, p. 453: W who consumes opium while on the stand is competent. b) Lightly Threshold Elements of Competency 1) FRE 602: Personal Knowledge (A) A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. (B) Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. (C) This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. [Experts do not have to have personal knowledge.] 2) FRE 603: Understanding of Oath (A) Before testifying, every witness shall be required to: Need both: (a) PROMISE: declare that the witness will testify truthfully, (b) PENALTY: by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. (i) This can be by having the person acknowledge their god and the eternal consequences of lying or the crime of perjury and its punishment. 12 (B) Fowler: Before trying to take the stand, D refuses to take oath, but says, ―I am a truthful man.‖ and ―I would not lie to stay out of jail.‖ Judge asked him to say, ―I will tell the truth in my testimony.‖ But even this statement lacked language of penalty. H: D’s statements were not an oath. (C) Ricketts: Five year old competent to testify about sexual abuse when she explained to the judge that she went to church; knew lying was bad, because she got a spanking when she did it; and promised to tell the truth. 3) Cognitive Ability to Recall Memories (A) Post Hypnosis Testimony (a) Rock: Wife shoots husband because he would not let her leave to eat; does not remember how the fight went down, so she goes under hypnosis and remembers that she never pulled the trigger. Analysis of the gun reveals that it has a defect which enables it to be fired without pulling trigger. III) Writings: Authentication a) FRE 901(a): To authenticate evidence, you must offer external evidence to prove that it is what you say it is. Standard of proof: sufficient to enable a juror to believe that the evidence COULD be what you say it is.9 Examples: 1) FRE 901(b)(1): Testimony of witness with PK about ―what is this?‖ and ―how do you know?‖ (A) Tangible Evidence (Johnson): W: victim of axe assault; what? axe used in assault; how do you know? V relied on state’s claim that it took the axe from D’s property; H: Foundation established—W said ―pretty sure‖ axe is D’s, saw axe in D’s hand, had borrowed the axe in the past. (B) Fungible Evidence (cannot tell what it is just by looking at it): (i) Cocaine: Ask an additional question—who had control of this object from the time it was found to trial? A missing link in the chain of custody is okay, as long as you have enough to prove what it is and that it has not been altered. Howard-Arias: missing links—two DEA agents who transferred drugs from seizure to test, but had CG agents who seized and transferred, DEA custodian at lab, and chemist. (ii) X-ray: X-ray is unlike normal photo in which jurors can distinguish objects and people in the picture; cannot tell if x-ray is the party’s leg or not just by looking at it. How do you know? Show this is the party’s leg with testimony of X-ray tech who took the X-ray of the party’s leg and recorded it and testimony to the accuracy of the X-ray office’s record keeping. Show the x-ray is accurate with testimony to show how the process of taking an X-ray works and that it worked correctly in this scenario. (C) Writing (i) Prob p. 856: Authenticate deed with testimony of the previous owner or new owner who signed the deed or of a witness who watched the transfer. (ii) Police sketch. Probably do not need to call the ketch artist himself to testify, because the W can authenticate—testify that this is what I saw; show that sketch is based on W’s personal knowledge or perception. 9 After admit, the credibility and probative force of evidence are tested by the jury when they decide how much weight to give evidence. To admit evidence that has weak credibility proof and weak probative force, argue that these elements go to the weight. 13 (D) Demonstrative Evidence: Ask (1) what is it? (2) how do you know? (3) does it fairly and accurately represent the item/event? (a) Photograph: Authenticate with any person who can answer the three questions; any person familiar with content of the photo; do not have to have the person who took the photo. (b) The amount needed to show that demonstrative evidence is fair and accurate representation varies on how the evidence is used. Prob. 13-L: Shaken baby video offered to show what the syndrome is requires less proof of fair and accurate representation than video offered to show what actually happened—what the mother did to the baby to kill it. (Then need testimony of expert who pieced together the facts to make the animation, testimony to the process that produced the video, etc.) 2) FRE 901(b)(2): LAY PERSON WHO DID NOT BECOME FAMILIAR WITH THE HANDWRITING JUST FOR TRIAL compare the offered evidence with what familiar with. 3) FRE 901(b)(3): TRIER OF FACT OR EXPERT compare offered evidence with an example that has already been authenticated. (A) When trying to authenticate deed, offer an expert or the judge or the jury a document with a proven signature of either party and compare that signature with the one on the deed. 4) FRE 901(b)(4): Appearance, Contents, Substance, Internal Patterns, Distinctive Characteristics in conjunction with Circumstances10 (A) Writings (a) Bagaric: RICO case with letter linking D to co-racketeer; Authen: letter addressed to D with postmark from co-rack’s home, letter signed by co-rack, letter referenced people familiar to D. (b) Frequent misspelling that is common to the alleged writer (c) Letterhead from the alleged writer (d) E-mail prob. p. 857: Things mentioned, slang, characteristic errors in the e-mail that only the alleged writer would have known or made authenticates that the alleged writer was the one using the e-mail account when e-mail sent. (e) Reply Doctrine: Authenticate a letter as coming from X by showing that it is a reply to an earlier, authenticated letter sent to X. Example: second letter responds to issues raised in the firs letter and is received in time typically need for response. (B) Telephone Conversation (a) Prob. 865: P called O’Rouke to tennis club after 5:00 when O’Rouke’s secretary said that he would be there, and O’Rouke answered. 5) FRE 901(b)(5): Identify voice by: (A) having heard the voice firsthand or through electronic transmission or recording (B) by opinion based on having heard the voice ANY TIME in a setting where you could connect the voice with the speaker. (a) Witness not prohibited from gaining knowledge of the voice in preparation for trial, so W could identify voice based on: (i) Visiting the D in jail and having a conversation with him, (ii) Hearing a voice lineup, or (iii)Listening to the D’s voice in trial if he testified. 10 Default rule: if nothing else works, use this. 14 6) FRE 901(b)(6): Prove who you were talking to on the telephone by: (A) Showing that the call was made to the number assigned by the phone company to the person or business, if (a) You were calling a person: (i) The person identified themselves AND (ii) Circumstances show that the person who answered is the one you called. 1. Perrin: calling a number assigned by the phone company to the person you called is probably circumstances enough. 2. Pool: Self-identification by a party on the phone is not enough; a call out of the blue from someone claiming to be X is not sufficient evidence to authenticate that call was from X. F: D called DEA agent identifying himself as ―Chip,‖ a nickname used throughout a drug conspiracy. This is just self-identification without more—not authentication. 3. Prob. 865: Phone call to tennis club where caller asks to speak with O’Rourke, and he comes to the phone. Cannot use telephone company assignment as proof of circumstances because club # is not assigned to O’Rouke. (b) You were calling a business: (i) You called a place of business AND (ii) The conversation related to business reasonably transacted over the phone. 1. Prob. 865: Phone call to tennis club to speak with patron O’Rouke; business call authentication does not apply because phone conversation was not about delivering food/supply to the club. But if the party had called O’Rouke at his law firm, then it would apply. 7) FRE 901(b)(7): Proof that document which can be recorded, was recorded, and kept in a public office. (A) Prob p. 856: Authenticate deed with certificate proving that the deed was taken from the county recorders office where it had been recorded. 8) FRE 901(b)(8): Proof that a document or data compilation in any form: (A) is in such condition as to create no suspicion concerning its authenticity (B) was in place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (a) Prob 856: Authenticate deed that is over 20 years old with condition not suspicious, stored in county recorder’s office. 9) FRE 901(b)(9): Describe: (A) the process or system used to produce a result and (B) show that the process or system produces an accurate result. (a) Prob. 857: Authenticate e-mail by showing that the process of sending and receiving e-mails produces an accurate result. (Show IP address of user matches sign on name). (b) Prob. 863: Printout of computer’s billing. Offer testimony of accountant or salesman about the office procedure and computer program used to produce the bill—show program is designed to produce this result, it was working accurately when it produced this printout, the 15 data entry process is accurate and audited, the computer hardware is sufficient to store the records, etc. 10) FRE 901(b)(10): Use method of authentication that Federal statutes or Supreme Court rules prescribe. 11) Biggins Rule: To authenticate tape recording,11 need to prove: (A) Competency of the operator, fidelity of recording equipment, absence of material deletions or additions or alterations in relevant portions of tape, and identity of speakers. OR (B) Accuracy of tape with independent evidence. Example: Witness with personal knowledge of the conversation. (a) Biggins: Tape recording captured conversation between DEA agent and heroin seller in apartment. Independent evidence to prove accuracy—both apartment owner and DEA agent who were present at the sale testified about the conversation and the tape reflected their accounts. [Note: because this testimony was offered to answer preliminary question of admissibility, judge assumes the testimony is credible.] b) FRE 902: EXCEPTION: To authenticate self-authenticating evidence, do not need to offer external evidence that document is what you say it is. 1) Document with seal from any U.S. federal, state, or local political subdivision or property, from Panama Canal Zone, or from Pacific Islands territory. 2) Document without seal, but with (A) Signature in the official capacity of an officer or employee of any subdivision in (1) (B) Accompanied by certification (a) From a public official with a seal and official duties in the same subdivision (b) That explicitly states (i) The signer has official capacity to sign and (ii) The signature is genuine. (C) Prob. 866: Death certificate references Illinois statute that renders all certificates per se authentic; statute does not make death certificate per se authentic in federal court, because FRE wins out in supremacy. (D) FRCP 44(a)(1): Allows certification by any public officer with seal of office and official duty in district where record is kept.12 3) Foreign public document. ???? 4) Copy of official record, report, document, or data compilation (A) AUTHORIZED TO BE RECORDED AND ACTUALLY RECORDED (B) Certified as correct by custodian or authorized person with certificate complying with (1),(2), (3), Fed. statute, or S.C. rule. 5) Publications by public authority. (A) Authority need not be domestic, can be foreign or international authority. (B) Example: Book, pamphlet, map, census report by government; not Webster’s Dictionary. 6) Newspapers and Periodicals 7) Inscriptions, signs, tags, or labels that: (A) Affixed in the course of business and 11 12 Never admit transcript from tape recording. Just offer it to jury for their guidance, but it is not evidence. Do not read it to the jury. Congress created both FRE and FRCP, so they work together. If you can’t authenticate under FRE, the try FRCP. 16 (B) Indicating ownership, control, or origin. (C) Example: Baby Ruth wrapper 8) Documents with acknowledgement in certificate of acknowledgement by a notary or other officer authorized by law to take acknowledgements. 9) Commercial paper, signatures thereon, and documents relating thereto to extent provided under commercial law. 10) Signature, document, or other thing declared by Fed. Statute to be prima facie genuine. 11) Original or copy of domestic record of regularly conducted activity if (A) Admissible under 803(6); (B) Accompanied by written declaration: (a) by custodian or other qualified person (b) in manner that complies with Fed. statute and S.C. rules. (C) Certifying that the record was: (a) Made at or near the time of the events recorded by a person who had personal knowledge or who got info from someone with personal knowledge; (b) Kept in course of regularly conducted activity; and (c) Made by the regularly conducted activity as a regular practice. (D) And the offeror gave the adverse parties: (a) notice that they intended to offer the record and (b) fair opportunity to inspect it and challenge it before offer. 12) Original or copy of foreign record of regularly conducted activity (A) in a civil case (B) Admissible under 803(6); (C) Accompanied by written declaration: (a) by custodian or other qualified person (D) Certifying that the record was: (a) Made at or near the time of the events recorded by a person who had personal knowledge or who got info from someone with personal knowledge; (b) Kept in course of regularly conducted activity; and (c) Made by the regularly conducted activity as a regular practice. (d) And declaration signed so that, if violated, declarant subject to criminal penalty. (e) Notice and opp to inspect and rebut. IV) Best Evidence Doctrine [FRE 1002: need original or exception] a) Is the evidence being offered to prove the contents of a writing, recording, or photograph? 1) Proving Contents (A) Occurs when: (a) Substantive law in case forces one party or another to prove the content, (i) Prob. 886: Prosecution for transport of obscene films; cop who watched the films testified to their content. H: must offer films, because content of film is element in offense to be proved. (b) Witness’ knowledge is based on the content of the writing and not from independent source. (i) Prob. 887: Bank robber caught in security camera; security guard who developed pic but did not see robbery testifies that person in pic is D. H: security guard’s knowledge is based on the picture; the picture is central and not incidental to his testimony, so need to offer the photo. 17 (c) Party chooses to prove content, even though other evidence would have been fine. (i) You could have proven the color of the light with eye witness testimony; but you chose to use officer’s report, so you must offer the original report. (B) Does not occur when: (a) Matter to be proved has been incidentally recorded, but neither substantive law nor party emphasis brings the writing to prominence. (b) Meyers: When you can call a witness who has personal knowledge about the content that is also reflected in the writing, the personal knowledge testimony is admissible without regard to the Best Evidence Doctrine. But if what the witness knows is based on a recording or writing, then must admit the original recording or writing or photograph under rules and limits of Best Evidence. Example: Vet who examined horse and wrote report can testify to the content of the report without having to admit it. (c) Proving the absence of something in the content of books or records that have been examined. Prob. 892: Insurance companies search through police records during months of alleged robbery produces no relevant report. The police records are not writing, because not proving their content. (C) X-ray (a) Admit x-ray because proving its content if expert is interpreting the meaning of the x-ray in his testimony. Example: Testimony by radiologist. (b) Do not need to admit X-ray when expert is doing more that just give the meaning of the Xray, but assessing the health of the victim or speaking based on expert analysis. Example: testimony by treating physician. [Because FRE 703 allows expert to rely on X-ray to form opinion.] 2) Writing and Recording: (A) FRE 1001(1): letters, words, or numbers or their equivalent set down by handwriting, typewriting, printing, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (a) Equivalent—Lucas: Lucas argues that drawings of star trek figures are equivalent of words and numbers because they represent an idea that you could represent with words and numbers. (B) Writing defined by BED policy to prefer originals when: (a) Precision in seeing exact words is key; any variation in words changes meaning, like in deed or will. (b) Risk of inaccuracy in making copy. (c) Oral testimony about content of writing is subject to error in memory. (C) Duffy: Shirt with work ―DUF‖ in the collar is not writing. When evidence is writing and chattel, judge has discretion to consider it as either. Look to policy of BE to see if it is a writing or chattel. H: This writing is simple, little risk of W not remembering it correctly, so it is not a writing. 3) Photograph: (A) FRE 1001(2): still photographs, x-rays, video tapes, and motion pictures. b) Is the original being offered into evidence? 1) YES; Admit (A) FRE 1001(3): Original is the writing or recording itself, OR (a) For photo, original is negative and any print. 18 (b) For computer data, any printout or readable output (bank’s microfilm) that is shown to reflect the date correctly. (B) OR any counterpart intended to have the same effect by a person executing and issuing it. (a) Original is any document that has evidentiary significance in case, even if it is a copy. Prob. 882: Mom gives kid up for adoption and makes M.D. promise not to reveal her ID; when kid turns 18, MD gives kid a copy of the adoption records. The copy is an original in the case. (b) Why wouldn’t the copy of the original in the nurse case fall in this category? 2) NO; move to (c) c) Is a duplicate of the original being offered into evidence? 1) FRE 1001(4): Duplicate: (A) Not manual reproductions, but copies produced by methods with accuracy to virtually eliminate potential for error. (B) That ―accurately reproduces the original.‖ 2) YES; FRE 1003: Admit duplicate unless (A) A genuine question is raised as to the authenticity of the original or (B) Under the circumstances it would be unfair to admit the duplicate in lieu of the original. 3) NO; move to (d) d) Prove the content of the writing with any other evidence of contents if: 1) ―Any other evidence‖ (A) ACN: no hierarchy for other evidence can offer any substitute, including testimony to content, does not have to be a copy—even if the copy is available. 2) Examples: (A) FRE 1004(1): The originals have been lost or destroyed and the proponent did not lose or destroy them in bad faith. (a) Okay if copies still exist; just need originals to be destroyed or lost. Prob. 896: Fire destroys original written contract; P has an accurate copy of the contract, but chooses to prove the terms of the contract by his testimony. H: Because original destroyed and not in bad faith, P has discretion to offer any other evidence. (b) Proving lost: Sylvania: Need proof that proponent made reasonable and diligent search to find the original. F: lost daily tally sheets from construction job; P offered summary of content of the sheets. H: P did not prove tally sheet unavailable—he had said that they were at home, had them in June 1963, promised court to look for them. P should have offered witness testimony with personal knowledge of him looking for sheets and not finding them. (B) FRE 1004(2): The original is not obtainable by any available judicial process or procedure. (C) FRE 1004(3): The opponent has failed to produce the document when it was under their control, and the opponent was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing. (D) FRE 1004(4): The writing, recording, or photograph is not closely related to a controlling issue. 3) FRE 1005: Prove content of official record with data compilations, authorized to be recorded (A) With copy that: (a) Is certified under 902 or (b) Testified to be correct by someone who compared the copy with the original, OR (B) With other evidence, if a complying copy cannot be obtained with reasonable diligence. 4) FRE 1006: Prove content of voluminous writings, records, or photographs that cannot be conveniently examined in court in chart, summary, or calculation. 19 (A) Must make originals or duplicates available to examine by other parties at reasonable time and place. (B) Court may order that originals be produced in court. (C) Example: In tax evasion case, present bank records with 90 deposits and 300 withdrawals in summary form. 5) FRE 1007: Prove content of writings, recordings, or photos by: (A) Testimony or deposition of party against whom offered or (B) That party’s admission. (a) Prob. 897: D seeking to prove lease says ―no pets,‖ but do not have lease. D finds signed letter from P acknowledging that the lease says he cannot have his dog in the apartment. (C) No need to account for the original. V) Hearsay13 a) Policies for excluding hearsay; cannot trust jury to discern truth without these safeguards: 1) Cannot cross-exam an out of court statement at the time it is made 2) Cannot see the demeanor or appearance of an out of court speaker at the time he speaks 3) Out of court statement not made under oath, so no promise of truth b) Risks of hearsay (tools to recognize it) 1) Misperception by the out of court speaker; maybe he saw the event incorrectly 2) Fault memory of the out of court speaker 3) Misstatement of the out of court speaker 4) Distortion of truth by out of court speaker in spite c) Is the statement one made by the declarant outside of the trial or hearing and offered in evidence for the truth of the matter asserted? 1) Assertion: Ask is the evidence offered a statement? (A) Intended expression of fact or opinion that the declarant hopes will be accepted as true or accurate. (a) A sarcastic remark on a snowy day, ―I love these sunny, summer days.‖—not assertion, because speaker does not expect anyone to accept it as true. (B) Can be oral, written, or behavioral (a) Oral (i) W testifies to what he heard someone say, and W testimony is offered to prove that what was said is true. (b) Written (i) W testifies about something he has read, and W testimony is offered to prove that what he read was true. (ii) Postmark on envelope, if used to prove what date and where mailed from. (c) Behavioral (i) Federal Rule: Nonverbal conduct that intended to be assertion; conduct used as a substitute for words to express fact or opinion; should be as communicative as stating directly what asserting.14 1. Nod—yes; show badge—I am cop; handing over item in response to cop’s question, ―Do you have a gun in your pocket?‖ 13 14 Anyone can testify to hearing the hearsay; does not have to be the original speaker and listener; can be someone who overheard. Nonassertive behavior outside of court is not hearsay because it does not suffer from risks of incredibility associated with hearsay; when a man acts on his belief, he will not likely deceive himself purposely. 20 2. Many things can be implied from conduct. You can imply from a dog’s limping that he is hurt, but this conduct is not an assertion. The dog is not limping to say ―I am hurt,‖ it is limping because its foot is tender. A fisher standing at a lake with a pole implies that he believes that there are fish in the lake, but he does not stand like that at the lake to say, ―There are fish in the lake.‖ 3. In doubtful situations, the law assumes that the actor had no intent to assert. 4. Evidence of noncompliant is not assertive conduct. Cain: testimony of motel owner to the number of people who used the room before the burned child without complaint. H: Not hearsay; just relating knowledge of motel owner of past injury from heater. [Could argue that risks of hearsay exist even with noncompliant—(bad memory) people may not complain because they forgot to tell motel owner or (misperception) because they did not connect the bad smell to the heater.] (ii) Minority Rule: Nonverbal conduct that implies an assertion; Wright—three letters written to dead person that his family is trying to prove was stupid and crazy; letters are related to business matters and imply that the recipient was mentally sophisticated. 2) Out of court: Ask when and where was the statement made? (A) Any assertion that is not: (a) Made under oath or affirmation subject to penalty of perjury (b) Made with adequate opportunity to cross-exam (c) Made in front of the current trier of fact. [Generally, statements made by witness with PK in the current trial are not hearsay, unless the witness is testifying to words that were spoken by anyone (including himself) at any time other than while testifying during the current trial.] 3) Offered to prove its truth: Ask why is it being offered? (A) Not assertions that are relevant regardless of their truth; does not matter if declarant believed them to be true. KEY: Whether declarant was telling the truth, but whether statement was heard. (a) Impeachment (i) Offering statement to test W credibility 1. Past inconsistent statement. Prob. 126: Bystander to car crash testifies that the blue car ran the red light; on cross, defense asks bystander about his past conversation with an insurance adjuster where he said that the blue car had the green light. (b) Verbal Act or part of a Verbal Act (i) Offering statement, because it does something; the words themselves have legal significance. 1. Sex for money: Prob. 127: Massage parlor worker to cop: ―Are you interested in a good time? The cost depends on what you want. I am real versatile like, and you can have it any want.‖ 2. Contract 3. Fraud 4. Terrorist threat 5. Libel 6. Slander 7. Will 8. A guarantee on which a party relied. 9. Vote 21 (c) (d) (e) (f) 10. Marriage, birth, or death certificate. a. Because these memorialize a legal status, they have independent legal significance to prove legal events. (ii) Offering statement, because it has independednt logical significance 1. Saying anything is proof of life. Example: H and W in accident; case over will; need to prove who died first; testimony of bystander who head husband’s voice from the wreck, saying, ―I am alive.‖ H: not hearsay—does not matter what H said, anything said is proof of life. Effect on Listener or Reader (i) Offering statement to show how it affected the listener 1. Prob. 128: ―I’m from the Gas Company.‖ To construction worker, offered to show that the worker believed that the man was from the gas company and that he followed his directions in good faith. 2. Warning 3. Notice a. Testimony of law clerk saying I told boss that we have to travel in pairs; because we are afraid that the partner will harass us, offered to show that the company had notice of the harassment. 4. Threat to show fear or anger a. ―I won’t go unless you marry me!‖ H: does not matter whether or not she meant it, just needed to show that she said it, it pissed off D, and he killed her. b. Woman accused of killing husband testifies to his threats of abuse to show her fear of him. Verbal Object (i) Offering a tangible object for the purpose of identification; (ii) Technically verbal objects include unique identifying marks that make assertions that the profferor offers for the truth of matter asserted (Ex. matchbook with legend of bar on it— is an assertion by the matchbook owner that the matchbook is from Eagle’s Rest Bar. P offers it for the truth that the matchbook came from the bar.) But, because the hearsay risk is so low (unusual for people to buy unique things that have someone else’s name on them), need only authenticate the writing/legend/identifying mark and then use it as an object and not as hearsay. (iii)License plate, tag on luggage; matchbook with legend from bar; beer mug with nickname painted on it. Verbal Marker (i) Two people’s testimony at trial from present memory: 1. One W marks or identifies a party or thing by their word,15 and 2. Another W explains why the ID is important or significant. (ii) Prob. 129: Waitress says she sees D in the bar with a man who she did not know on several occasions; waitress points the two men out to the cop; and the cop testifies about the identity of the unknown man. Circumstantial Evidence of State of Mind (i) Prob. 130: Woman’s venting about her crappy husband in her will is circumstantial evidence of her state of mind toward her husband. 15 This statement is not offered to prove what D did, just offering it to identify/mark D. 22 (ii) Betts: Foster mom testifies to statements of child that she was scared of her mom’s new husband and that she believed that he killed her brother. H: admit as circumstantial proof of the child’s state of mind—does not matter if the child’s beliefs were true, relevant to show her mental state at the time of the child custody proceedings. (g) Circumstantial Evidence of Memory or Belief I DO NOT UNDERSTAND WHAT YOU CAN DO WITH HEARSAY THAT IS NOT USED FOR A NON-HEARSAY PURPOSE AND WITH STATEMENTS THAT ARE NOT HEARSAY. DO YOU TREAT EVIDENCE THAT WOULD OTHERWISE BE HEARSAY BUT IS USED FOR A NONHEARSAY PURPOSE DIFFERENTLY THAN EVIDENCE THAT DOES NOT FIT THE OTHER ELEMENTS OF THE HEARSAY DEFINITON? WHAT ABOUT STATEMENT MADE IN TRIAL WITH PERSONAL KNOWLEDGE –THIS IS NOT HEARSAY, BUT CAN’T YOU OFFER IT FOR THE TRUTH OF WHAT ASSERTED? If a statement is hearsay but is not offered for a hearsay purpose, then you must see if an exclusion or exception fits. d) Hearsay Exclusion If a statement meets a hearsay exclusion, it is offered for its truth/substantive value; the authors of the rules, simple define it as not hearsay. 1) Is the statement a prior statement of the testifying witness who is now concerning the prior statement? FRE 801(d)(1) SUBJECT TO CROSS-EXAM ▪ ―Subject to cross-exam‖—Owens: Right to cross-exam is not right to successful cross-exam, just opportunity. Opportunity means the witness is on the stand and answering questions, even if all he is saying is that he does not remember the prior statement or the underlying facts. (Dicta—result might be different if declarant refused to testify at all by asserting 5th.) IS IT NOW EVEN WORTH TO MAKE DEBATE OVER WHETHER OR NOT FAKE FORGETFULNESS IS INCONSISTENT TESTIMONY? SEE DEBATE P. 165-166. (A) Is the prior statement INCONSISTENT with the witness’ testimony? FRE 801(d)(1)(A) (a) Inconsistent (i) Testimony does not have to be diametrically opposed to prior statement; inconsistency can be found in silence, evasive answers, and changes in position. (ii) Changes in memory 1. CA: W’s memory loss must be fake to be considered inconsistent testimony. 2. Fed.: Agree that fake memory loss is inconsistent, but not said that memory loss must be fake to be inconsistent. (b) Was the prior statement given under oath in a prior proceeding? (i) Prior Proceeding 1. Grand jury 2. Preliminary Hearing 3. Depositions? 4. Police Interrogation a. Majority: police interrogation is not proceeding. b. Minority: In Washington, a statement in police interrogation is a prior proceeding, if conditions surrounding the statement suggest reliability. Factors: proof that the 23 statement was actually made and that minimal guarantees of honesty were in place. Smith: ―Proceeding‖ includes affidavit made by victim of assault to police. Factors of reliability: victim testified that she made them statement; victim made statement in her own words and signed the statement before a notary and after hearing the oath portion. In addition, affidavit is like grand jury proceeding—both looking for PC. 5. Immigration Proceeding. Castro-Ayon: Immigration interrogation at border patrol station after reading the aliens their Miranda rights and placing them under oath. H: this is proceeding, because looks like grand jury with more legal rights for witnesses—right to total silence, counsel, and to hear rights. (ii) If given under oath, then admit as proof of the matter asserted. FRE 801(d)(1)(A)16 (iii)If not given under oath, then admit for impeachment purposes only. FRE 613 (B) Is the prior statement CONSISTENT with the witness’s testimony and is it being offered to rebut a charge of fabrication, improper influence, or improper motive? FRE 801(d)(1)(B) (a) Consistent—needs to be consistent enough with current testimony to rebut charge. (b) Charge—need explicit or implicit accusation of recent fabrication or of allowing his testimony to be improperly influenced or motivated (by friendship, bias, prejudice). (i) Merely showing that parts of W’s testimony are inaccurate is not enough for charge. (ii) Merely showing that the W is not a truthful person and not worthy of trust. (c) Rebut—must analyze statement, when and to whom it was made, and how the circumstances relate to the impeaching attorney’s charge. Tome: Past statement must be made before the alleged improper influence, motive, or fabrication arose to rebut the charge.17 (d) Improper influence: anything that might motivate a party to lie. (C) Is the prior statement one of identification of a person made after perceiving them? FRE 801(d)(1)(C) (a) Prior statement of identification (i) Police Sketch. Motta: police sketch of victim’s description of the robber is a statement of identification, because it is as assertive as if the victim had given a verbal description of the robber. (ii) Police Lineup Identification. ID from lineup admissible as long as it complies with Wade-Gilbert limits, cannot use ID lineup if: 1. D denied counsel at lineup 2. ID obtained in unnecessarily suggestive lineup 3. If influenced by improper pretrial procedures. (b) After perceiving them 2) Is the statement being offered against a PARTY OPPONENT? FRE 801(d)(2) * GENERAL RULES THAT APPLY TO ALL OF 801(d)(2): 16 17 CA 1235: prior inconsistent statements can always be used substantively. This time restriction only applies to substantive use of prior consistent statement. Does not apply to nonsubstantive use of prior consistent statement to rehabilitate the witness. WHAT DOES THIS LOOK LIKE? SEE NOTE 2 P. 176; CA 1236—statement must have been made before alleged bias arose. 24 (a) Party opponent—one of the parties must have a claim against the other party to be resolved in the law suit. Line up the parties and ask, ―Did the person who said the statement come from the other side of the table?‖18 Then admit. (b) Policy for admitting individual or adoptive admissions (i) Not the reliability of the statement, but (ii) Because trial is war—each party is responsible for making or breaking his case by what he says and does inside and outside of court. (c) Admission can be ANYTHING that the other side says19—it does not have to be against their interest, declarant does not have to have had personal knowledge of what he was talking about, declarant could even have been knowingly lying; declarant could be offering an unqualified opinion; (unlike non-hearsay purpose—does not even matter if no one else heard the statement); and the party could have later recanted the statement. (d) Admissions doctrine does not apply to government officials. Government workers cannot bind the U.S. [So defendant in criminal case cannot offer a favorable lab report on his drugs against the government as an admission by a party opponent; but can intro through 803]. Individual Admissions: (A) Is the statement the adverse party’s own statement, in either an individual or representative capacity? FRE 801(d)(2)(A) (a) Examples: (i) Prob. 185: Auto repair shop burns with P truck inside; shop owner tells insurance agent in claim that his employee set the fire by leaving blow torch near paint fumes—even though the owner did not see the fire. H: Admit as admission, does not matter that shop owner had no personal knowledge of even admitted to and doe not matter that owner made the statement in his own interest (to advance his insurance claim). (ii) Prob. 185: If shop owner had said, ―I am responsible under respondeat superior.‖ Admit as admission, even though it is unqualified opinion. (iii) Case with wolf bite: P can admit statement made in note left by Mr. Poos on door of Wild prez and later in face to face conversation with Mr. Poos that wolf bit kid; because Mr. Poos made these statements, and he is sitting at the defense table. (b) Guilty Plea (i) Guilty plea in prior criminal case is generally admissible in later action, civil or criminal. (ii) Guilty plea is not conclusive proof of facts underlying the plea; D can still rebut the plea by showing that it was made in a bargain. 1. Prob. 189. Admitting guilty plea in assault case into civil case. Admission does not warrant partial summary judgment on the issue of the assault, because prior guilty plea is not conclusive proof of the facts of that crime. Admission also does not warrant collateral estoppel to the issue of the assault, because the issues have never been tried—the D pled out in the criminal trial. 2. Traffic Ticket: Some jurisdictions do not treat payment of a traffic ticket as admission of guilt. Issue—people pay tickets because they are a hassle to defend or because they 18 19 Review examples on this. To what extent is this true? It looks like even statements that meet the vicarious admissions standards are sometimes excludable because hearsay within hearsay or because giving an unqualified expert opinion. 25 do not know how to defend them—and these concerns do not exist in felony or misdemeanor. (iii) Exception in 410. (c) EXCEPTIONS (i) Do not accept party statement made while asleep.20 (ii) Do not accept party statements made by children. (iii)Spillover Confession 1. Criminal case: a. Bruton per se rule: a limiting instruction is not adequate to preserve the confrontation rights of a non-declarant in a spillover confession. The W must take the stand and be subject to cross.21 b. F: joint trial of B and E for postal robbery; E confessed and implicated B; court admits E’s confession with limiting instruction for jury to only consider it to E. R: Limiting instruction was inadequate, because risk that jury not follow the instruction was too high; and admission violated B’s confrontation rights, because E never took the stand to be cross-examined. 2. Civil case: a. No confrontation clause rights, so Bruton does not apply. Limiting instruction is fine. b. See Prob. 193/supplement. (B) Is the statement one that the party has adopted? FRE 801(d)(2)(B) RULE: Adoption implied under the Probable Human Behavior Standard: if under the totality of the circumstances, probable human behavior would have protested the statement if untrue.22 This is rare exception where preliminary question is typically decided by the jury. (i) Implication by the party’s language in response to another’s statement, like ―I agree with that‖ brings in the ―that.‖ 1. In response to insurance adjuster’s accusation of fraud in truck fire, ―Look, I am just a poor man.‖ 2. Presumed Innocent movie: Man says to Harrison Ford, ―You killed her! I know it!‖ Harrison Ford responds, ―Yeah, you’re always right!‖ This is an adoptive admission. Both statements come in against Ford. (ii) Implication by the party’s conduct, if not ambiguous. 1. Pre-Miranda Silence, no government compulsion or civil case a. ACN standard is probable human behavior—person would under the totality of the circumstances have protested the statement if true; show the party stayed quiet because endorsed stmnt and not for another motivation. b. Hoosier: H charged with armed bank robbery; R testified that H told R that he was going to rob a bank; and three weeks later, H showed up with jewelry and 20 21 Admit statement if party is drunk, semi-conscious, badly injured—let these circumstances go to probative value. Options available to the prosecutor—separate trials and bring admission only in to the trial with the admitter, two juries for each D, or redact the statement to remove the other D’s name. 22 Is there a rule that the conduct/silence must be unambiguous to merit admission? 26 2. 3. 4. 5. 6. money. In the presence of H, his girlfriend said, ―We have sacks of money.‖ And D was silent. H: Total circumstances indicate that H acquiesce in girlfriend’s statement—stmnt made in H’s presence; unlikely that H’s atty had told him to be quiet; H had bragged to R about robbery before; if stmnt was not true, H probably would have denied it—especially since he told R that he would rob bank. Post-arrest, post-Miranda silence a. Doyle: Two D’s raise an exculpatory story about why they had pot in their car at trial; on cross-exam, the state raises the D’s silence after arrest and Miranda to impeach D; state wants D to testify that he did not tell the police about this exculpatory evidence. H: Do not admit post-Miranda silence as assertion; silence after Miranda is ambiguous; it could be D exercising his right to silence; and implicit in Miranda is a promise that silence carries no penalty. Dissent: no reliance on promise in Miranda—D talked about a lot of things with cops after Miranda, but did not mention the exculpating story. Signing a document with the statement in it. Forwarding an e-mail with the statement in it. Agreeing with the findings of an investigative body. Controlling what goes into the minutes of a board meeting. Wolf Bite Case. Vicarious Admissions: (C) PRINCIPAL AUTHORIZED THE PARTY’S STATEMENT: Is the statement one made by a person authorized by the party to make a statement concerning the subject? FRE 801(d)(2)(C) (a) In establishing the declarant’s authority under (C), contents of the statement are considered but are not alone sufficient to establish the authority. (i) The words used to prove a principal’s commitment to agent’s word are verbal acts. (b) Examples: (i) The words of a publicist are the words of the star. (ii) Superseded Pleadings: (Lawyers are speaking agents, and their statements made in the case or prior case for their clients are admissible as the words of the client) A prior pleading that has been recanted or amended by superseding pleading is still admissible against the party that filed it.23 1. Generally, you can rebut an admission from a prior pleading or from a prior attorney in a trial, EXCEPT: a. FRCP 36: When you admit in response to a request for admissions, you cannot rebut the fact; it is established. b. Judicial Admission: The live pleading is binding; you cannot offer evidence that varies from the live pleading. (unless you fit in exception of FRCP 15). (D) PRINCIPAL NEED NOT HAVE AUTHORIZED THE PARTY’S STATEMENT FRE 801(d)(2)(D) : Truckdriver provision; statements are excluded from hearsay if: (a) Made by the party’s agent or servant (b) Concerning a matter within the scope of the agency or employment, (c) Made during the existence of the relationship. 23 This allowance in FRE conflicts with FRCP 8e which encourages parties to plead inconsistent theories of their case. 27 (d) In establishing the agency or employment relationship and scope under (D), the contents of statement are not alone sufficient to establish them. (e) Wolf Bite Case: 1. Statements at director’s board meeting at which Poos not present are not admissible against Poos—Poos is agent of the employer, but the employer is not agent for him. 2. Employee does not have to have personal knowledge of what he is talking about. 3. Employee does not have to speak to third party; okay if statement made within company to boss. (f) What if employee relates hearsay? Poos says, ―My son told me that the wolf bit the child?‖ Split: (i) Cedeck: In sexual discrimination case, woman in bank testifies that bank manager told her that his boss told him that she could not be manager, because she is a woman. H: Cannot admit against employer because hearsay within hearsay. (ii) EEOC: In racial discrimination case, admit against employer a statements that the CEO did not like black people even though the statement s came through multiple declarants, because all of the declarants were agents of the company speaking on activities in scope of employment. (g) What if employee gives opinion as expert? (i) Aliotta: Admit statements by RR’s risk manager about an accident, but not statements theorizing that the passing train created a vaccum that sucked pedestrians off of the sidewalk. H: This was a scientific theory—declarant needed to be qualified as an expert and to offer scientific support in line with Daubert. (E) Is the statement one made by a co-conspirator of a party during the course of and in furtherance of the conspiracy? FRE 801(d)(2)(E) (a) Enables one party to admit against another, a statement made by the party’s co-conspirator. (i) Example: A and B are co-conspirators. A says that B is going to Columbia to get drugs. Admit this statement as if B said, ―I am going to Columbia.‖ (b) To establish conspiracy: (i) Need proof that24 1. Conspiracy existed, a. Conspiracy is agreement to commit crime. 2. The conspiracy was pending during statement, and a. The conspiracy ends with arrest of conspirators; so statements to DEA agents or cops are typically not admissible under conspirator exception. 3. The statement furthered the conspiracy. a. Context matters in defining furtherance. Prob. 225: Statements made assuring C about other members of the conspiracy so that she will continue with the conspiracy, get on the plane, and carry the drugs—looks like furtherance—but it might not be, if made in the presence of a non-conspirator. Conversations in the presence of non-conspirators tend to be idle chat; the words are not actually doing anything. (ii) Decision for the judge.25 24 Any of these elements may be proved with statements that are verbal acts. Words that constitute the act of conspiracy can be admitted as verbal acts. If just verbal acts, then can’t use for truth. But, if are a vicarious admission against a party, then can use for truth, right? 28 (iii) Bourjaily: Standard of proof: preponderance of the evidence. (iv) Evidence that judge can consider: 1. Bourjaily: the statement itself, but 2. In establishing the conspiracy, the contents of statement are not alone sufficient to establish them. (c) Conspiracy exception is a powerful tool with wide reach: (i) Exception available in civil and criminal cases; do not need a charge of conspiracy to use exception. (ii) If you join a conspiracy in progress, you are accountable for everything said and done before you joined. (iii)If you leave a conspiracy or think you have left, you are accountable for all statements and actions that occurred after you left. [It is really hard to leave a conspiracy, need express letter, notarized, to all participants.] b) Hearsay Exception FRE 803 These exceptions are admissible because they have heightened reliability or need above normal hearsay.  Need: If need is great or absolute, then reliability requirement is looser.  Reliability: If reliability is high, then need does not have to be as severe. 1) PRESENT SENSE IMPRESSION FRE 803(1) (A) A statement (B) Describing or explaining (C) An event or condition (D) While the declarant is perceiving the event or condition or immediately thereafter. (a) Contemporaneous impression; like res gestae—this statement is part of the event. (b) Perception must come immediately—not 45 or 60 minutes later. (i) Iron Shell: Nine year old explains assault to officer an hour or more after the event—her statement was not a present sense impression. (c) Contemporaneousness creates reliability. Immediate responses do not suffer from lack of reliability or false motive. Nuttall: Sick man calls into work to tell his boss that his can’t work; evidence—wife overheard husband’s responses to boss on the phone: ―But, George, why are you forcing me to come to work the way I feel?‖ admit responses on phone to prove that employer compelled the man to come to work, under 803(1): declarant is perceiving event through hearing, and declarant’s responses stated immediately as declarant hears boss’s words. But statement declarant made upon arriving at work or statement about how declarant looked at work are not admissible under 803(1) as proof of the boss’ compulsion, because statement is not contemporaneous to the conversation in which the employer pressured the declarant to come to work. (d) The Graduate: 911 call in response to burglary in home, when it is happening—the burgular was in her room as she called. 2) EXCITED UTTERANCE FRE 803(2) (A) A statement (B) Relating to 25 I think this is true for all of the 802 exceptions. 29 (a) Cannot admit statements that relate to subject matter outside the startling event. Iron Shell: could not use excited utterance to admit a statement by the nine year old that her daddy abuses her (when daddy was not the assailant). (C) A startling event or condition (a) FRE 104(a) says the judge can consider the statement itself to answer preliminary questions, like whether a startling event or condition occurred, but split over whether additional independent evidence is needed. Split: Some—need independent evidence of startling event; some—statement itself is enough proof of startling event. (b) Prob. p. 238: Independent evidence of startling event in chest pain case: the husband came home during the workday which he never did. (D) While the declarant was under the stress of excitement caused by the event or condition. (a) Time lapse between event and statement is okay, as long as the declarant is still under the stress of excitement. (b) Iron Shell: Factors that reveal stress of excitement: (i) Lapse of time between event and statement (ii) Whether statement made in response to inquiry (iii)Age of declarant (iv) Physical/Mental condition of declarant, and (v) Characteristics of event or subject matter of statement. (c) Iron Shell: Nine year old assaulted in bushes by D; one hour after assault, officer asks child ―What happened?‖, and the child spills out her account of the assault. H: Child’s statement was an excited utterance based on factors—age: young, nine years old; characteristics of event: traumatic, shocking assault that would keep her stressed for some time (children suffer in different ways from adults; they feel more helpless); condition of declarant—some say that she was calm, others say nervous and scared; response to inquiry—the single question of ―What happened?‖ does not destroy excitement; time lapse—one hour is not too long for a child to remain excited. (d) Stress creates reliability. People are not likely to lie when speaking under stress of event. [But people are usually not accurate when speaking under stress.] (e) Example: 911 call. 3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION FRE 803(3) (A) A statement (B) Of the declarant’s (C) Then existing (a) Does not include: ―I didn’t like her back then‖ or ―Boy, was I hungry‖—must prove state of mind at time of declaration. (D) State of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) (a) Fear (i) Prob. p. 243: Declarant tells a friend that D is after him and that he will kill him and his family if I don’t pay him protection. Statement admissible under 803(3), because statement reveals declarant’s fear of D and his belief that D wanted money from him. (b) ―I am happy.‖ (c) Intent 30 (i) Reliable, because people do not lie about current intent—they say it contemporaneously as a routine reflection, a reflex, and not out of mischief. (ii) ADMIT TO PROVE DECLARANT’S FUTURE CONDUCT. 1. Mutual Life v. Hillman: Evidence: letters from Walters to family saying that he intends to travel with Hillman, who may have killed Walters on the trip to defraud his life insurance company. R: Admit statement of intent, when offered to prove that the declarant subsequently did what he’d said he would do. a. If statement is made, ―I am going to CO tomorrow, because N offered me a job.‖ Can admit statement to prove that declarant went to Colorado, but no to prove that N offered a job—because the declarant’s statement about the job offer is looking backward to something that already happened (because lose reliability of expressing mental state as it comes to declarant—declarant could be lying or remembering the past event incorrectly.) 2. FUTURE CONDUCT: Cannot use 803(3) statements to prove conduct of declarant before the statement—because opportunity to reflect and have mistaken memory in time after their conduct undermines their reliability. a. Video—Lupe meets with declarant at bar where declarant said, ―If I am pregnant with Allen’s baby, then I will have to disappear.‖ This is admissible statement of intent to disappear that is conditioned on a future act of pregnancy. 3. CA EC 1250(2): Admit hearsay to prove the act or conduct of the declarant only. (iii)ADMIT TO PROVE THIRD PARTY’S FUTURE CONDUCT.26 Split: 1. Pheaster: Can admit declarant’s statement to prove what a third party did, but only if: a. Declarant is dead or unavailable. b. Particularized guarantees of trustworthiness exist. c. Other evidence exits to corroborate what the 3d party did or from which can infer guilt. d. Argument to admit statement to prove third party conduct: Hillmon should be interepreted broadly to include these statements. 2. FRE 803(3) ACN: Hillmon stands to prove the declarant’s future conduct and not the future conduct of a third person. a. Argument to oppose admission of statement to prove third party conduct: The inferences needed to connect the declarant’s statement to the third party’s conduct are extensive—and require jury to assume the fact believed or asserted is proven. Ex. Pheaster: must infer that D and Larry talked in past, that D and Larry agreed to meet in the parking lot, and that they met in parking lot. Must assume that it is proven that D and Larry agreed to meet—this violates 803(3). (d) This exception could cover everything that we say, because everything that we say reveals what we think or feel. But the exception’s usefulness is limited by relevance. Most of the time a person’s state of mind is not relevant. Need to ask: ―Is this state of mind proof? Is it relevant?‖ (i) See Prob. 4-J. (E) But not including a statement of memory or belief to prove the fact remembered or believed (a) Why not admit to prove fact?—because people stating contemporaneous feeling are not always accurate. 26 Who follows this rule—look like both federal and CA rule only allow statement of intent to prove conduct of declarant. 31 (b) Proving that a statement proves state of mind is harder when it is just a statement of fact that implicitly reveals a state of mind. Danger in admitting these kinds of statements is that the jury may take the underlying facts as proven. (F) EXCEPTION: Unless it relates to the execution, revocation, identification, or terms of declarant’s will. (a) Ex: ―I made will 20 years ago and I said money goes to my son; what I meant by ―my son‖ is this…‖ H: Admissible, because will drafter’s statement about meaning of will is the most reliable evidence of its meaning, even though it is a declaration about past conduct and past state of mind. 4) STATEMENTS FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT FRE 803(4) (A) Statement (B) Purpose: Made for the purpose of medical diagnosis or treatment AND (a) Made for diagnosis: CL did not include statements made to an MD to prepare him to testify to a diagnosis at trial, but CL did allow MD’s to testify to basis of their opinion under FRE 703—in doing this, it excluded the statement for substantive proof. But ACN includes statements for diagnosis in FRE 803(4) and thus allows them to come in substantively. (C) Type: (a) Describing (i) Medical history (ii) PAST OR PRESENT symptoms 1. Admit backward looking statements (describing past symptoms) because of heightened reliability in statements made for diagnosis. Declarant has a self-interest in telling the MD his symptoms correctly. (iii)Pain or sensations (iv) Inception or general character of the cause or external source thereof 1. Admitting statement attributing fault. a. COMMON LAW: Statements attributing fault are not admissible under 803(4). i. Admit statements describing what happened, like ―I was hit by a car‖ or, in Iron Shell, ―I was assaulted.‖ ii. Do not admit statements ascribing fault, like ―The car ran a red light‖ or, in Iron Shell, ―Dad assaulted me.‖ iii. Policy: people minimize their own fault when they explain who is responsible. b. EXCEPTION: CHILD ABUSE CASES i. Policy: Child is not likely to lie to the MD; child needs special psychiatric treatment based on who the offender is; MD needs to prevent the harm from continuing—should not let child go home with an abusive family member. ii. Blake: Dad sex assault daughter; daughter examined by physician upon referral from DHS; daughter tells MD that dad raped her; MD testifies to the statement. H: Admit stmnt because MD relied on victim’s account to administer the correct tests and exams. R: Admit statement attributing fault in child abuse case when: Purpose of declarant: Declarant makes the statement, because they want to promote their treatment or diagnosis. 32 Conduct of hearer: What the declarant says is relied on by a person to treat or diagnosis. [Person does not have to be MD, can be health professional, social worker, EMT.] (b) Insofar as reasonable pertinent to diagnosis or treatment. (i) Statement can be made to people with responsibility for the declarant’s physical and mental well-being—who will use the info to get treatment or diagnosis for the declarant. 1. Some courts admit statements to psychologists, counselors, and other people where the declarant has a motive to tell the hearer the truth so that they can get better. (ii) Statement can be made by someone besides the person being treated or diagnosed. Petrocelli: wife telling MD about the husband’s severed nerve problem. Declarant does not have to be the injured person, but anyone with a similar motive of advancing diagnosis or treatment. 5) RECORDED RECOLLECTION FOR FORGETFUL WITNESS FRE 803(5) Four requirements to lay foundation for the memo or record: (A) A memorandum or record concerning a matter about which a witness once had knowledge (a) This could be testimony from a prior proceeding (contra: 801(d)(1)(A)). (b) Ohio v. Scott: declarant had first hand knowledge of the D’s admission, because he came up to her and said it. (B) [1] But know has insufficient recollection to enable the witness to testify fully and accurately (a) Ohio v. Scott: Trial for shooting at cop; after shooting, D ran up to W and told her that he shot someone. Prosecutor shows insufficient recollection when the W cannot remember the exact words that she used. Prosec—―Can you tell me the exact words that you told the police?‖ W—―I can’t remember exactly, but it was something about somebody being shot.‖ Dissent: said that exception should not apply, because W had some memory of the subject of the statement. Offeror should have tried to hand her the statement to refresh her memory first. (b) W needs to say ―I can’t remember.‖ (?) (C) Shown (a) [2] To have been made or adopted by the witness (i) Declarant may have made a written statement. (ii) Declarant may have adopted a written statement—one person writes a statement that another reads and signs. (b) [3] When the matter was fresh in the witness’ memory (i) Ohio v. Scott: statement given to police just after police arrest D in the movie theater where he had run to tell the W about his feat in shooting somebody. (ii) Statement can have been made months away from the event—this requirement is not strict. (c) [4] To reflect that knowledge accurately. (D) If admit, (a) Must read into the record; (i) Offering the memo or record to ―supplant‖ the W testimony, so must read aloud. (ii) Policy: If jury takes written statement into jury room, they may give it undue weight. (b) Do not admit as exhibit unless offered by an adverse party. (c) Unlike present recollection refreshed, this evidence comes in as proof of truth of matter asserted. 33 6) RECORDS OF REGULARLY CONDUCTED ACTIVITY FRE 803(6) (A) A memorandum, report, record, or data compilation in any form of facts, events, conditions, opinions, or diagnoses (B) TIMING: Made at or near the time of the event or condition (a) Not literal; needs to be close to the time of the event. (C) PERSONAL KNOWLEDGE (a) By a person with knowledge or (i) Petrocelli: If MD Schwartz had observed the herniated nerve, then could admit his conclusion in regularly kept records of hospital. Does not matter that this is an opinion. 803(6) admits opinions as long as other foundation established.27 (b) From information transmitted by a person with knowledge (D) REGULAR BUSINESS/REGULARLY KEPT RECORD (a) Kept in the course of a regularly conducted business activity AND (i) Business—business, institution, association, profession, occupation, and calling of every kind, whether for profit or not. 1. Includes illegal enterprises, schools, churches. (ii) Accident report: Palmer: Suit over injury with RR; RR makes internal report on accident. H: report not admissible because the RR’s regular course of business does not include all reports that relate to the business. Preparation for trial is not the regular business of the RR. Even though report may affect business by telling manager how to act, it is not typical record made in business—it was made for the accident. (b) It was the regular practice of that business activity to make the memorandum, report, record, or data compilation. (i) Policy: reliability—employee more likely to do something correctly if employer expects them to do it regularly and the business depends on it. (ii) Each person involved in the record preparation must have been acting under a duty WITHIN THE SAME BUSINESS. Declarant or source of information must have been an insider! 1. Petrocelli: Malpractice for severed nerve in hernia accident; evidence—statement in P’s medical records by a later physician that ―indications‖ were patient with severed nerve and by another physician that patient is worried about pain from severed nerve. H: Do not admit these statements, because they lack personal knowledge—no proof where info came from, entries could be based solely on what the P told the MD, so MD had no PK and a record from what a patient tells an MD is not a report by a declarant who is a participant in the regular business routine of the hospital. 2. Cannot admit one MD’s conclusion transmitted to another, if the two MD’s do not work in the same hospital. 3. Norco: Security co. and Norco working for a contractor to clean up oil spill. Security company investigating sex harassment on ship by a Norco employee; investigator produces memo with statements from Norco employees and supervisors about Norco harasser. H: Admit statements of Norco employees under 803(6), because (1) it was Purcell’s regular business duty to investigate and produce reports and (2) all companies were working on the same job under the same contractor or business in this common enterprise to clean up oil spill. [or stack exceptions—admit Norco 27 Not sure if this is right. 34 employee statements under 801(d)(2)(C), because employees are authorized as part of their employment to comply with the investigation; and the topic is in the scope of their employment—conduct of supervisor is a rule violation, and they are authorized to report violations to security company. (E) FOUNDATION: Show with testimony of the custodian or other qualified witness or with certification complying with 902(11) or 902(12) or a statute permitting certification. (a) Foundation witness need not have made the record, observed its preparation nor been employed by the business when it was made. (b) W just needs to have first hand knowledge of the recordkeeping system, who can describe how the records are prepared. (i) Nurse with copy of unchanged record: Admit the copy of the chart under business exception; nurse can testify herself to the maintenance and custodianship of the document. (F) TRUSTWORTHINESS: Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (a) Burden shifts to the opposing party to prove the untrustworthiness of the evidence. (G) Multiple Layers of Hearsay are common with biz record exception and are admissible, as long as: (a) All layers of hearsay are employees in the same company—all under duty of business responsibility, and (b) The base layer is from personal knowledge. (H) Oates: Prohibition of offering regular reports against defendant in criminal case extends to this rule.28 7) ABSENCE OF ENTRY IN RECORDS UNDER 803(6) FRE 803(7) (A) Evidence (a) That a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), (i) Ex: A Few Good Men—proving the absence of government policy for code red in Guatanamo Bay field manuals. (b) To prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, [proving nonexistence of record that was regularly made]. (B) Unless the sources of information or other circumstances indicate lack of trustworthiness. (C) Policy: Absence of records is intellectual hearsay (though absence of complaint was not hearsay), because must prove the content of all the records that do exist. 8) PUBLIC RECORDS FRE 803(8) (A) Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: (a) THE ACTIVITIES of the office or agency, or (i) Ex: mundane documents—court transcripts to prove testimony given; marshal’s return to prove services of process; an order committing a criminal defendant, and ―antidumping proceeding notice by Commissioner of Customs, and a progress sheet by Treasury Dept. describing which checks it has printed and mailed. 28 Correct? 35 (b) MATTERS OBSERVED pursuant to duty imposed by law as to which matters there was a duty to report, excluding, (i) IF OFFERED BY GOVERNMENT, EXCLUDE IT29: In criminal cases matters observed by police officers and other law enforcement personnel, or (Only defendant can offer this kind of evidence) 1. This is objectively verifiable information. 2. Baker v. Elcona Homes: Truck v. Car accident in intersection; deputy sheriff did not see the accident, but studied it and produced a report on accident. H: Admit the cop’s direct observations recorded in the report under 803(8)(B). 3. Oates: Testing heroin case. Lab chemist is law enforcement personnel, because he works for Customs which enforces narcotics law, and his job of testing and storing drugs is regularly used in prosecutions. 4. Ex.: IRS assessment liens indicating unpaid taxes; reports by building inspectors indicating code violations; legislative preamble from a piece of legislation stating purpose of legislation. (ii) EXCEPTION: Some courts admit public records offered by the government that are made outside of any investigation and without focus on defendant specifically, despite Oates. 1. Policy: Concerns of Oates are not present—the government did not create the report to investigate the person offered against, so no unfairness to D. Government did not create the record to prosecute D. 2. Ex: Data entry of border crossings. (c) In civil actions and proceedings and against the Government in criminal cases: (i) FACTUAL FINDINGS resulting from an investigation made pursuant to authority granted by law, 1. This is an evaluative or conclusory opinion; it is a conclusion. 2. Ex.: findings of employment discrimination prepared by EEOC; CDC study on a disease; findings from Coast Guard Examiner as to which of two crewmembers started a fight. 3. Baker v. Elcona: Deputy sheriff’s report included a conclusion that the vehicle ran a red light before the accident. Sheriff’s conclusion about the accident is an admissible fact-finding, even though it is based on disputed facts that he did not observe. (ii) IF OFFERED BY THE GOVERNMENT, EXCLUDE IT30: Oates: Criminal case exception in B extends to C—government cannot create a fact-finding report/evidence and then offer it against the accused in a criminal case. Jury should make these kinds of conclusions after the defendant has an opportunity to confront the evidence—not the conclusion. Only the defendant can offer this kind of evidence. 1. Oates: Does not matter if the chemist lab report was fact-finding, because it is inadmissible by government against the accused. [Government must bring in the lab technician himself to testify to the test. Government can then get the report in to help the W remember past recollection (confrontation clause satisfied because W is on the stand)]. (iii)Unless the sources of information or other circumstances indicate lack of trustworthiness. 1. ACN factors of trustworthiness: a. Timeliness of investigation 29 30 Is this right? Is this right? 36 i. Baker v. Elcona: Deputy sheriff’s investigation began within minutes after accident; okay that it continued over two months before the report released. b. Special skill or experience of the official i. To give an opinion, an official must meet the foundation qualifications of FRE 703. ii. Baker v. Elcona: Deputy sheriff has been investigating accidents for 28 years. c. Whether hearing was held i. Point: Is the opinion or fact-finding based on all the evidence with an opportunity to be heard for any interested persons? d. Any motive problems (B) The person making an assertion in the public document must have been a GOVERNMENT EMPLOYEE acting under a duty to report. The declarant or source of information must have been an insider!! (a) Cannot admit eye witness accounts under public records exception (try excited utterance). (b) Baker v. Elcona: Deputy sheriff’s report included a statement from the truck driver that he could not see the light when he entered the intersection. H: Cannot admit statement from report, because it is neither a direct observation of the cop nor a fact-finding by cop, even though the statement weighed in his analysis. Truck driver was not a cop/insider. (C) Policy for admitting: (a) Reliability (i) Assume government employees do duties with great care and without bias (ii) Repetitive routine of producing the documents make reliable (b) Need (i) Gov. does so many reports that drafters can’t remember and can’t be in court all the time. 9) BIRTH, DEATH, MARRIAGE CERTIFICATE FRE 803(9) (A) Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, (B) If the report thereof was made to a public office pursuant to requirements of law. 10) STATEMENT OF FACT ABOUT PERSONAL/FAMILY HISTORY FRE 803(13) (A) Statements of fact concerning personal or family history (B) Contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (a) Policy: people do not lie on these. 11) STATEMENT IN DOCUMENT 20 YEARS OLD FRE 803(16) (A) Statements in a document (B) in existence twenty years or more (C) the authenticity of which is established. (a) This is like the authenticity of ancient document foundation rule.31 (b) Point: show nothing is fishy about the document; it has been the same for 20 years. 12) STATEMENT IN MARKET REPORT, COMMERCIAL PUBLICATION FRE 803 (17) (A) Market quotations, tabulations, lists, directories, or other published compilations, 31 How do they fit together? 37 (B) Generally used and relied upon by the public or by persons in particular occupations. (a) Ex: Telephone directory brought in to show that this is the number I called and this is the person at the other end. (b) Policy: If we trust directory, stock quotes enough to base daily activity on them and our money on them, then they have heightened reliability. 13) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY FRE 803(19) (A) Reputation (a) among members of a person's family by blood, adoption, or marriage, or (b) among a person's associates, or (c) in the community, (B) Concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. (a) Policy: You do not know your parents, your date of birth, your family history, because you have no personal knowledge at the moment these things were decided. You were told. 14) REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY FRE 803(20) (A) Reputation (a) in a community, (b) arising before the controversy, (c) as to boundaries of or customs affecting lands in the community, and (B) Reputation (a) as to events of general history (b) Important to the community or State or nation in which located. 15) REPUTATION AS TO CHARACTER (A) Reputation (a) of a person's character (i) among associates or (ii) in the community. 16) LEARNED TREATISE FRE 803(18) (A) To the extent (a) called to the attention of an expert witness upon cross-examination or (b) relied upon by the expert witness in direct examination, (B) statements (a) Contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, 1. Item can be one page; test for treatise: is this authoritative? Is it recognized as a reliable authority in the field? 2. Ex: a standard for safety in an industry standard manual. (ii) Established as a reliable authority a. When you offer the treatise, the witness that is sitting on the stand must recognize it as authority; or if the witness refuses, then must ask judge to admit the treatise 38 on condition that you will establish its authority later when you call your witnesses. 2. by the testimony or admission of the witness or a. Any expert can establish the authority of the treatise, even your witness. 3. by other expert testimony or 4. by judicial notice. (C) If admitted, the statements may be read into evidence but may not be received as exhibits. (a) Must read the treatise to jury; they can’t take it to jury room. c) Hearsay Exception: DECLARANT UNAVAILABLE FRE 804 1) Policy: Need W unavailable and some showing of higher reliability. 2) UNAVAILABLE declarant: (A) privilege from testifying concerning the subject matter of the declarant's statement; or (a) Griffin: assume that defendant is taking the privilege; he does not have to take the stand and claim it. (B) refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (a) Williamson: W refused to testify against D even with offer of immunity. (C) testifies to a lack of memory of the subject matter of the declarant's statement; or (a) W is unavailable to extent of genuine memory loss; the other party can try to show that the memory loss is feigned and, therefore, the witness is not unavailable. (D) unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (a) W is mentally uncapable of testifying or (b) W is dead or (c) W is suffering from severe physical illness. (E) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. (a) Barber v. Page: Barber and Woods tried for armed robbery in OK; at prelim, Woods waived 5th and implicated Barber in crime; at Barber’s trial later, prosec. says it cannot get Barber because he is in prison in Texas. R: Witness is not unavailable unless state has made a good faith effort to get the W. Good faith effort means you must ask, possibility of refusal is not enough. H: No good faith effort: federal prisons have standing policy to turn over W for state trials and a statute existed enabling a state to get release of Barber; P should have tried. (b) Prob 4-L: Gov’t gave passport back to key prosecution witness who went to Australia and could not be found through U.S. embassy there. Reasonableness extends to reasonable efforts to find W and reasonable efforts to not let W leave or get lost. The point is that the party tried to get the witness, not that they were successful. So, prosecutor here should have offered to pay W expenses from Australia, called the W mother, asked the judge to detail the W as a material witness, not given the witnesses passport back. (c) Confrontation clause---Barber: hearsay is inadmissible against the accused if the declarant is available as a witness. Barber’s testimony at preliminary hearing is testimonial within Crawford. 3) NOT UNAVAILABLE declarant: 39 (A) if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 4) If the declarant is unavailable, then the following types of statements have hearsay exceptions: (A) FORMER TESTIMONY. (a) Testimony given as a witness at (i) Another hearing of the same or a different proceeding, or (ii) In a deposition taken in compliance with law in the course of the same or another proceeding, (b) If (i) The party 1. against whom the testimony is now offered, or a. same parties in the proceeding that produced the former testimony and in this proceeding. 2. in a civil action or proceeding, a predecessor in interest Three Definitions of Predecessor in Interest a. Majority: Community of interest or similar motive to cross examine. i. Lloyd v. American Export Lines: Lloyd and Alvarez fight on ship owned by Am. Export; Alvarez claims against Am. Export for negligence. Lloyd disappears; Evidence—Am. Export offered transcript of Lloyd’s testimony at a previous Coast Guard hearing on the fight in which Coast Guard examiner questioned Lloyd, and Lloyd described Alvarez as the instigator. R: Predecessor in interest created in ―community of interest‖—both parties concerned about the same facts and both want to find culpability or assign penalty. H: Coast Guard hearing officer was a predecessor in interest to Alvarez, because he and A are concerned about same facts—the fight; and both concerned about assigning fault. Case 1: CG v. L Case 2: A v. AEL. Question is was CG a predecessor in interest to A? b. Minority: Privity. c. Limited Lloyd: Weakened privity when the predecessor in interest was a public body or actor that represents all people in their jurisdiction, including the later party. i. Lloyd: CG was predecessor in interest to Alvarez, because Alvarez was a sailor in the CG’s jurisdiction. (ii) Had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (B) STATEMENT UNDER BELIEF OF IMPENDING DEATH: DYING DECLARATION (a) Policy: people do not want to die with a lie on their lips, so they will tell the truth with their last breath. (b) Limits (i) Criminal: only use in prosecution for homicide (ii) Civil: use in any civil action or proceeding, (iii)Statement must: 40 1. Why I died: concern what the declarant believed to be the cause or circumstances of his own impending death. 2. Last breath: be made at time declarant believed his death was imminent. a. Imminent: settled hopeless expectation that death is near. Poisoned wife case: statement to maid to grab liquor bottle, because she believed that husband poisoned the liquor—not dying declaration; wife felt ill and maybe thought she might die—but no helpless expectation at time statement made. Ex: MD had just told Decl that he was about to die; the last rights had been issued to him. b. Note: decl may not have died, because of miraculous recovery---but W must be unavailable for some other reason. c. Judge decides declarant’s belief about imminence of death. (C) STATEMENT AGAINST INTEREST (a) Limited to statements that reasonable person would not have made unless believed them to be true, because they are: (Unlike admissions doctrine, here need heightened reliability because decl. is unavailable, so limit admissible statements to special categories.) (i) Against a financial interest (ex. Admitting to a debt owed). (ii) Against an ownership interest (iii)Making decl subject to criminal liability (iv) Making decl. subject to civil liability (v) Rendering invalid a claim by a decl. against another. (b) Exception: Admit statements that inculpate the declarant and exculpate the accused with corroborating circumstances. (Ex. Third party confession to committing crime.) (i) A statement tending to expose the declarant to criminal liability and offered to exculpate the accused 1. Williamson: Harris arrested for suitcases of cocaine in trunk; after arrest, Harris says ―I am taking this coke to Atlanta for Williamson.‖ Issue: Can admit Harris’ statements about Williamson’s role? R: Look to context of statement; statements that are neutral or in support of your interest are not admissible under 804(b)(3). H: ―I am taking coke‖ is against interest, because exposes decl. to criminal liability. ―For Williamson‖ is inadmissible, because exculpatory—made to officer after arrest. a. Torrance and Garvin in truck that cops find pot in. Torrance says, ―Pot belongs to me, not Garvin—he had nothing to do with it.‖ ―Pot belongs to me‖ is against interest. ―not Garvin, he had nothing to do with it‖ is neutral—not admissible under Williamson. (Or statement is against interest, because Torrance may be exposed to greater punishment if he acted alone.) 2. Ginsburg: CURRY FAVOR: Statements that made to help yourself or curry favor with the state are inadmissible, because decl. has strong incentive to downplay his own role. Ex of scenarios: declarant statements in plea bargaining; declarant statements to authorities after incarceration; statement by little fish to give up big fish. a. Schiappa: Kim and boyfriend killed Kim’s husband. Boyfriend says to another that he just killed somebody and that ―Kim beat his ass too.‖ ―I just killed somebody‖ is against interest. ―Kim beat his ass too‖—no ―curry favor‖ concern—because statement made to private citizen who could not have done anything for boyfriend. (so admit because trustworthy?) 41 b. Lily: Brothers arrested for robbery and murder; brother A tells cops that brother L killed the victim with a pistol. H: Statement not against interest even though brother L had heard his Miranda rights and he was not promised leniency— because brother had natural motive to try to exculpate himself. 3. Dissent: FRE follows common law rule that allowed admission of even neutral statements that are connected with a statement against interest. (ii) Is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 1. Torrance and Garvin—need corroboration that Torrance owned the pot (or that Garvin was not involved); evidence can be circumstantial evidence—something beyond just the statement. (D) STATEMENT OF PERSONAL OR FAMILY HISTORY (a) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (b) A statement concerning the foregoing matters, and death also, of another person, (i) if the declarant was related to the other by blood, adoption, or marriage or (ii) Was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (E) FORFEITURE BY WRONGDOING (a) A statement offered against a party (i) That has engaged or acquiesced in wrongdoing (ii) That was intended to, and did, procure the unavailability of the declarant as a witness. 1. Prob. 4-N p. 342: Defendant allegedly sends letter to coconspirator in robbery, threatening him if he testifies against him at trial. Judge holds ex parte hearing on the letter with the W’s attorney and without the D or his lawyer. H: standard of review for questions of misconduct is preponderance of evidence and question for judge. And okay to exclude D from hearing, because a party that threatens a W loses confrontation rights to object to any evidence admitted under this exception and to the hearing deciding the misconduct. (b) Note no limits on statement: allows admission of any statement that declarant made—can admit this hearsay for the truth. d) CATCHALL EXCEPTION: FRE 807 1) Most Common Use: (A) Child abuse prosecutions—needed because children tell others about sbiase but not in a scenario that fits an exception. Also, children are reliable based on their age and their use of ageappropriate language (though this last factor goes both ways). (B) Grand Jury Testimony—for W who is unavailable but testified under oath in grand jury— testimony not admissible under former testimony rule because D did not have prior op to cross exam W (D’s attorney cannot be present at grand jury, so he cannot cross examine the W.) 2) California: does not have a catchall rule. Need: 42 3) RELIABILITY: circumstantial guarantee of trustworthiness that is equivalent to trustworthiness in 803/804. (A) Weaver Factors: (a) Declarant’s propensity to tell the truth (b) Whether the alleged statements were made under oath (c) Assurance of the declarant’s personal knowledge (d) Time lapse between the alleged even and the statement concerning the event. (e) Motivation of declarant to make the alleged statements (f) Corroboration with other evidence (g) Reaffirming or recanting the statement by the declarant (h) Credibility of the witness reporting the statement (i) Availability of the declarant for cross-examination. (B) Weaver: Baby dies from head injuries, babysitter convicted of murder; moved for new trial based on new evidence—mom told customers at Hardees that the baby hit its head on the coffee table and that babysitter did not harm the baby. H: New trial and admit Hardees statement—the Hardees witnesses are credible, mom is available to testify, statement was made within two weeks of the death so mom would have remembered what happened, mom had first hand knowledge of substance of statement; mom made statement in response to open-ended question from Hardees customers and not result of interrogation by accused; statement made to more than one person; statement corroborated by medical evidence showing head injuries that not otherwise explained. [Even though W did not come forward until 3 years after hearing mom’s statement, and W subject to media pressure.] 4) NEED: Unavailability of evidence from any other more probative source. 5) ADEQUATE NOTICE: provide notice to adverse party, but no specific notice time period specified. VI) CONFRONTATION CLAUSE a) SIXTH AMENDMENT 1) Applies only to criminal prosecutions 2) Gives the accused (not the government) the absolute right to confront witnesses—to be present when they testify against him and to cross-examine the W. 3) WHO IS A WITNESS? (A) Crawford v. Washington (a) Policy: use procedure to protect confrontation right. (b) When W is unavailable, Confrontation Clause bars use of testimonial evidence against accused without prior op to cross-exam. (i) Witness unavailable 1. The defendant must show that he did not procure the unavailability by his wrongdoing, or he will waive his confrontation clause rights. (ii) Testimonial 1. Ex-parte in-court testimony or functional equivalent, such as affidavits, custodial interrogations, prior testimony that defendant was unable to cross-examine; 2. Extra-judicial statements in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. 3. Statements made under circumstances that would make W believe that their statements may be used in a later trial. 4. Types 43 a. W talking to government official or cop. i. Crawford: Wife explained the fight between her husband and victim to police after she had been taken into custody. ii. Ex parte testimony at preliminary hearing. iii. Idaho v. Wright: Three year old tells her doctor about abuse by her parents; H: child’s testimony to MD is testimonial, because MD has duty to report all reasonable suspicions of child abuse to the state—so he is an agent of the state. b. Government collecting evidence to investigate a particular defendant. (Not log of license plates at border). c. W not making statement that is part of an event. i. Excited utterance or present sense impression (911 call in the heat of the moment). Split on Testimonial:  911 call is res gestae or part of the event, so nontestimonial because it is part of the traumatic event and a call for help.  911 call is testimonial, because it is a person reporting a crime— which they can expect to be used in a prosecution. d. W talks with expectation that it could be used in trial against someone. e. Not statement offered for purpose other than truth of matter asserted. i. Statement made to an informant (state agent) is not testimonial if made to further a conspiracy—a verbal act which is a nonhearsay purpose. (iii)Without prior op to cross-exam 1. A prior right to cross-examine a W satisfies the Confrontation Clause. a. If statement made at preliminary hearing, but D asked questions of the W and the W is now unavailable—admit preliminary hearing testimony of W, because D had prior op to cross-exam. 2. A deferred right to cross-exam a W satisfies the Confrontation Clause a. Op to cross exam satisfied when have a live body, on stand, under oath. i. Owens: beat up prison guard who cannot remember the beating or telling police who did it is cross-examinable. (c) Exception: A firmly rooted hearsay exception may satisfy the confrontation clause even though it is testimonial and not cross-examined. (d) A prior or deferred right to cross-exam satisfies the Sixth Amend. (B) Ohio v. Roberts (a) Policy: Use substantive reliability and need of testimony to protect confrontation right. (When a statement is reliable, the needs for cross-exam is low.) (b) Some Circuit courts apply Roberts to nontestimonial evidence. (c) Analysis: (i) Is this a firmly rooted exception? Then it is presumed reliable. (ii) Is the hearsay necessary? Must show that the witness is unavailable. (iii) Is the hearsay reliable? Need indicia of reliability that do not make the evidence markedly less trustworthy than live testimony. (d) CA 1370—example of code section that follows Roberts policy. 4) Protected Witness Testimony 44 (A) Confrontation clause requires face to face W testimony, because it is harder to lie about someone when you are looking at them. EXCEP: when court makes specific, individual finding that separation between W and D is necessary. (a) Craig: Court can allow W to testify outside of presence of D, because court made determination that the procedure was necessary to protect the welfare of a particular child and the W’s emotional distress was more than just nervousness or reluctance to testify 45