Evidence 8/21/06
Pre-Notes motion in limine (in lim-<>-nee). A pretrial request that certain inadmissible evidence not be referred to or offered at
trial. • Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. If, after the motion is granted, the opposing party mentions or attempts to offer the evidence in the jury's presence, a mistrial may be ordered. A ruling on a motion in limine does not always preserve evidentiary error for appellate purposes. To raise such an error on appeal, a party may be required to formally object when the evidence is actually admitted or excluded during trial.
Notes We will be responsible for big difference between rules of Fed. And CA. o Not tested on small differences. Read Advisory committee (for Federal Rules) o Start w/ rules of evidence first. Why we have rules of evidence o Promote accuracy o Promote efficiency o Allocate burden of persuasion o Protect substantive polices i.e. privileges (no husband against wife) o Distrust jurors What do we do at a trial o Jury Selection o Opening Statements Rules do not apply o P’s case in chief Witness testifies on direct examinations followed by cross examination . This can be followed by redirect which can be followed by recross. Different rules apply to the different lines of questioning. o D’s case in chief Same as above in opposite. o Rebuttal cases Limited to rebutting what happened. o Closing Arguments o Jury instructions o Post Trial motions
Motion for new trial o Appeal What is evidence o Three kinds of evidence Real Something that is actually directly involved in the dispute. In a contract case, the K is the real evidence. Must be authenticated by a witness Testimonial Primary concern as a trial lawyer. Demonstrative (representative) A thing, but it does not have an independent direct connection to case. o i.e. model of skull used to demonstrate evidence o or a photograph (i.e. picture of scene is not actual picture. Circumstantial Requires the drawing of an interference where as direct evidence does not. o i.e. OJ’s bloody glove = circumstantial because jury must draw inference that the blood was related to murder and was killers. Direct would have been a witness who saw murder. Prejudicial and Preserved Evidence o Two things that must exist for a reversal 1) Mistake must have been prejudicial 2) Error must be preserved. To preserve it must: A) Must be a specific objection o The person must object on the proper legal grounds. If you object and it is objection heresy, and the judge overrules it will not work (promotes efficiency). o If the objection is sustained, you must ask court to make an offer of proof. B) Offer proof o Proponent of ev. tells judge why evidence is inappropriate. This judge second chance to correct his ruling. If this is not done you loose your chance on appeal. Exceptions 1) Plain Error: So obvious that everyone must have been in a coma to let it slip. 2) Constitutional error: comes in, in violation of Cont. rights. This could warrant going around preservation rule. If it was harmless from a reasonable doubt then they will not reverse. Abuse of discretion is usual starndard on review. On Constitutional error, it must show it is not harmless (different from Abuse of discretion).
Ohler v. U.S.
Gov. made motion to use evidence of prior conviction. Purpose for which the gov. wanted to use to impeach her credibility of she testified. Judge rules that prior conviction was valid impeachment evidence. S the ruling means that if the def. testifies the P can ask about her convictions At trial the D on direct examination questions her about the conviction and then they want to appeal the in limine ruling. S. Ct said you cannot complain about an error would you pulled the court into the error.
Evidence 8/23/06
3-1 1. Yes, who is the mother 2. We can draw an inference that the true mother would not want her baby hurt. 3. Maybe less because the guys could be reacting to the general want of not wanting to kill a baby. 3-2 The letters are probative because they give a possible motive for the killing and make it more likely. He was writing the letters secretly to Jason’s wife This angered Jason when he found out He killed Freddy. 3-4 1. Not helpful. Could argue he was casing the place. Still why would he withdraw money in which he was going to steal? 2. Prior conviction could mean that he had experience with bank robbery in the past It could be likely that he would do it again in a different state. 3-5 It is relevant because it makes it more likely that it was indeed Harry’s body. The letter demonstrates that Harry was planning on being at the pond during the time the body was found a pond is not a large body of water where many people go like a lake He was missing at the same time mentioned in the letter. 3-6 Could go either way. P could argue that because he ws so tried he was still on the job as opposed to be doing something fun or for his own interest. On the other hand he still could have been going some place not related to work. 3-7 Prosecutor: Insurance is relevant because the additional fire insurance could be uncommon and provide a possible reason for arson Defense: While maybe uncommon, it does not mean he was not generally cautious and worried about fire damage. If introduced however it could be prejudicial as he might appear to be guilty for the money even though it is not proven. Ruling: Allowed because it provides a possibility of why the fire started.
3-9 Does not seem relevant.
Class Notes
Relevancy 401, 402 (CA 210,350, 351 All relevant evidence is admissible. This is like a gatekeeper. You can only admit evidence that is relevant to the case. o Anytime that we are asked about relevancy, you must discuss it no matter how obvious it is. Admissible does not mean that it is admitted. Admissible evidence can be excluded for a bulk of different reasons. What does relevancy mean? (Rule 401) o A: Evidence having any tenancy to make any fact more or less probable. You have to focus on what you are trying to prove with a given piece of evidence. When starting with an analysis ask “what does this evidence prove or disprove”. It must prove something that is of consequence of the case. You need to also ask “How does the evidence prove or disprove what are you trying to show”. Develop an “if then” analysis. o Any relevancy is the threshold Conditioned Relevancy: when the existence of another fact is needed for a certain piece of evidence to be relevant.
Evidence 8/25/06
3-17 1) A steal blade found does not mean it was from the mower that exploded. 2) On the condition that the blade is from the mower in question it is relevant 3-18 1. Gloves may be admitted if they can be shown to aid in the robbery and the fit the defendant. Must link the gloves to the crime. 3-19 If he thought he was smuggling diamonds, he did not knowingly smuggled drugs. If it was financially worth it for him to swallow diamonds then it is more likely that he believed that he was smuggling diamonds. 3-20
4-1 1. The nurses assertions should not be enough to counter scientific evidence. 2. Ruled wrong.
Class Notes
Review from last class Relevant evidence – evidence that has any tendency to make a fact of consequence to the action more or less likely. Where there is a written stipulation for major issues such as liability, the jury no longer has to decide those facts not in dispute. Only needs to decide facts that pertain to the issue at hand. o Ask: “What does the fact finder have to determine to reach a result in this case?” Conditional Relevancy 104B allows the judge to submit the evidence subject to a party linking the evidence with the issue later in the trial. o Judge determines if there is enough evidence to admit entity. Judge can order piece of evidence to leave out piece of evidence that was admitted earlier on condition. Relevant but Inadmissible Evidence The balance tips in favor of admitting it The reason for not admitting it must SUBSTANTIALLY out weigh the probative value. The question is whether the evidence is unfairly prejudicial not just prejudicial. Reasons for in-admission o Confusing issue o Misleading jury o Undue delay o Wastes time o Cumulative evidence
Evidence 8/28/06
Review To determine probative value ask: o What are you trying to prove o Next, balance it against unfair prejudice 4-3 Typically, evidence such as this is admitted even though it might be unfairly prejudicial.
4-4 When the issue is pain and suffering it really is difficult to exclude evidence that would explore these details. Showing his stumps also speak to the damages. 4-5 This is admissible. 4-6 1. Similar Occurrences, Happenings, and Events 4-9 It would be relevant for the inclusion of three weeks of puddles. D might prove that there were storms and it was impossible to not have puddles.
Evidence 8/30/06
Heresy -------------10-2 H: He is making assertions as truth about what two other people said. 10-3 N: not done to communicate to others however if done as an assertion it is hearsay. 10-4 N: because just because he is admitting him to a hospital is not asserting that he is insane. He is trying to get treatment. (If a fireman is spraying abuilding with water, he is not asserting that it is on fire). 10-5 N: wife was testifying at what she saw, not what he said. 10-6 H: putting blanket over head communicated that he was dead. Out of court statement 10-7 H: 10-8 H: they are out of court opinions 10-9 N: they are operative facts not meant to prove their truth.
10-10 1. It is not H if that was meant to show a legally binding contract but it is heresy if the wedding was a formality. 2. H: out of court operative fact meant to assert that they were married. 3. 10-11 N: not meant to show that he could cry, offered as evidence that he could talk 10-12 H; 10-13 H; they are offered to show that the matters of what were in the houses are true. Rule 802 – Hearsay rule. It is not admissible unless you have an exception. The definition that we will be focusing is in rule 801 a-c. Out of Court means that it is being offered outside the trial proceeding. Even if it was at a deposition for that trial. It has to be at the specific proceeding. Statement basically it is an assertion of fact. It can be verbal or non-verbal conduct if it is intended by the declarant as an assertion. “Open your book” is not an assertion but a command. “the light was green” is an assertion. A nod to a question is a assertion by conduct. However some conduct can be proof of a fact without it being the type of conduct that amounts to an assertion (i.e. sitting at a light and then going through the intersection. The conduct of driving through the intersection does not assert the color of the light or that there was a change in the light). By a Declarant must be a human being. It can be the witness is testifying IF he is testifying about his own out of court statement. Offered for the Truth of the Matter Asserted Take steps. Ask if it is relevant to the case (i.e. what are you trying to prove with the statement) Then ask if the point was untrue, would it matter for the point it was trying to prove. (i.e. the statement, “the building is on fire” is hearsay if you are trying to prove that the building was on fire. If however a person was thought to have committed suicide it is not hearsay because it could show a possible reason why he jumped.) If it does not matter whether the statement was true but rather that it was said it is not hearsay. Uses of out of court hearsay: 1) State of Mind a. Hearer b. Speaker i. i.e. teacher coming in declaring she is the pope is not hearsay if it si offered not to show that she is the pope but that she is insane. 2) Impeachment a. If there is a prior inconsistent statement, it could be offered to show falsity or truth or to discredit the witness.
3) Res gestae a. If the person is adopting the statement of someone else then you can offer the statement to explain the adoption. 4) Operative Facts/Verbal Acts/Independent Significant a. Sometimes you say something that in itself is legally actionable (i.e. I offer to sell you 10 widgets). You would never be able to sue on contract if there was no contract. A defamatory statement is another case because you are not concerned about the truth of the statement but the fact that the statement was made. b. Words accompanying the transfer of a things that limit the nature of the giving or define it are operative facts. 5) Circumstantial evidence of memory/belief a. i.e. child molestation case where all that the child could remember was paper man. Police testified that the child said that. This would be offered to show circumstantially that he remembered the room and so it is admissible.
Evidence 9/1/06
Page 230-239 10-1 1. Not H; dog cannot be a declarant. 5. Not H; she just said what she saw, not a prior statement 10-7 Not H; when ever you see contract think not hearsay. 10-8 H and N: they are asserting the letters as opinions as to his competency The English courts treated this as hearsay. Under the federal rules, this has been rejected. They have to intend the assertion. Federal rules has changed the law. 240 10. H; tells cause of death. 11. H. 14. H; even though it is a question she is still asserting that she went to the store. 15. H: 16. N: not hearsay because it si not saying that he was negligent but rather it was putting him on notice and speaks to the exception of state of mind. 17. N; trying to impeach 18. H 19. N 20. N 21. H
Evidence 9/6/06
Midterm 16th 10-17 1. H: yes because they are relying on the truth for the matter asserted. 2. H: trying to prove that Cassidy is the aggressor. Not really clear, if worded a different way it could not be hearsay. 3. N: contract 4. N: no statement 5. H: 6. N: since it is like a contract, the act of agreeing changes his legal status. 7. H: silence was intending to adopt the statement. 8. *Y: because it is offered to show that he paid the ticket and that is what the receipt says 9. N: no statement 10. N: you do not need the statement to be true for her to be alive. 11. N: no assertion 12. Y: not at the same time as the transfer 13. Y: this is direct evidence of her state of mind because you are trying to show that she is more likely the aggressor. Only works if her statement was true. 14. N: 15. N 16. N: If you are trying to prove that Ozzie likes Harriet. This is a compliment; not because it is true but it shows circumstantial state of mind. 17. H: 18. H: if you are trying to establish a motive then it is Hearsay because the statement if true speaks to the motive. If it was not true it would turn so it is Hearsay. 19. H: being offered to prove the truth of the matter asserted. 20. N; not offered to show that it was poison offered to show that effect on person who heard the statement. 21. H; 22. H; 23. H: it reflects whether she went to the store. Tends to make it more likely that she would go. 24. H: 25. H: being offered to prove the truth of the matter asserted. 26. N: Does not matter if the lamp is ugly or not. Issue is did he own the lamp. Makes it less likely that he owned the lamp. Circumstantial evidence . Does not matter that lamp is ugly. 27. N: Are you trying to assert something 28. N; no assertion 29. N: no statement or assertion Hearsay Handout 1. N: Not hearsay because it is a contract.
2. N: mental state 3. N: independent legal significance 4.
Evidence 9/8/06
When evidence that would be hearsay under Definition of 801(c) is admissible. 3 CATEGORIES - 801(D) Statements that would have been hearsay under the common law that are not hearsay Statements by testifying witnesses Statements made by the party opponent. Each of these have an indicia of reliability even though it would be hearsay. They make us comfortable with asserting them as truth. 801(d)(1) - witness is also the declarent - There are the subcategories o 1. Prior inconsistent statements Witness must be testifying and subject to cross-examination To prove truth of matter asserted it must be an inconsistent while witness was under oath and subject to penalty of perjury Must have been in trial, hearing, other proceeding, or deposition Note: if all you are trying to do is to impeach the witness, you do not need this rule. CA They are not required to be under oath to be admitted. o 2. prior consistent statements Witness must be testifying and be subject to cross examination Statement has to be consistent with in court testimony Must rebut charge of recent fabrication or improper motive. Example Day 1: Light was green for Phil; Day 5: Phil offers w job; Day 10 Light was green for Phil; Day 480: Light was green for Phil at trial. Can only use day 1. Bad memory is not charge of motive or fabrication. CA Admissible to disprove charge of recent fabrication and the statement was made prior to the incentive to fabricate AND if the statement was made before the prior inconsistent statement. o 3. prior statements of identification Witness must be testifying and subject to cross-examination All you need is ID after you saw the person This is really easy CA Occurred at time when occurrence was fresh in witness mind.
The biggest issue that comes uo is what proceeding qualifies - In the Day case the witness is sworn under oath and interviewed by police officers. Why doesn’t this work? When you have a one-sided interview you do not get the same kind of scrutiny that you would in a case where they could go back and forth. Statements made at police stations, interviews, affidavits are not allowed. Borderline would be like a deportations proceeding. These have gone both ways. Key: Look for adversarial setting. The other issue that comes up is when is a statement inconsistent? - It odes not have to be polar opposite as long as you can say that it is not consistent with what was said before. Look for significant variation. HUGE DIFFERNECES IN California ****************************** - If you look at the CA Rule. It is not non-hearsay it is an exception to the rule. That is key. - The other key differences is that it is not required to be under oath for inconsistent statements. Page 243-44 10-18 It can be used for impeachment and for the truth of the matter asserted. This is an example where it I s not completely the opposite but it is just not consistant. Damp is not muddy and mucky. 10-19 1. No, this was not a proceeding under oath. However if this was in CA it would be admissible. 2. No, not under Day. This does not count as process under oath even though it is under Oath. 3. No, we do not have a charge or recent fabrication. What if you are trying to rehabilitate the witness who has been impeached by a prior statement? In both CA and federal will probably not view it as helping his credibility 10-20 1. Rebuts a charge of recent fabrication or improper motive. Stratically this will not go far with the jury admissible. 10-21 In CA it would have to be closer in time but in Federal court it would be admissible. 10-22 It has to be the person who made the identification who testifies. The police man cannot testify unless the blind man testifies. No admissible. 10-23 1. Not Hearsay, because it is a prior ID. It does not have to be a statement, it can be a gesture. It can also be a police artist drawing. 2. This owudl be hearsay because it is not the person testifying.
Evidence 9/11/06
Hearsay 801(d)(2) (Party Admissions Two important things o 1) It does not have to admit anything. It does not have to be a confession. It is any statement a party makes can be offered against him at trial. o 2) It has to be offered by the party against the party opponent. P cannot offer own statements. The statement is offered against a party and is – o The party’s own statement, in either an individual or a representative capacity If the party says it, it can be used against the party. Party admissions have no personal knowledge requirement. Need not be based on personal knowledge. o A statement of which the party has manifested an adoption or belief in it its truth i.e. A said: “ you went through that light fast: B; “ yes I did” that is an adopted admission Silence as adoption Legal doctrine supports that someone, by silence can be an adoption if there is a failure to contest. Requirements o 1. Person had to hear statement or question o 2. Must be statement that someone would refute o 3. Person making statement or question had to be someone that would be taken seriously. o 4. There had to be some impediment to the person who was silent i.e. Miranda would impede someone from responding. There will always be an issue when Miranda rights come in. o A statement by a person authorized by the party to make a statement concerning the subject or i.e. Speaking agents : lawyers, realtors, PR people, translators, etc. i.e. For Sale: equestrian property with two horses. this is an offer so non-hearsay. If you are trying to show that property is an equestrian property with 2 horses now you are seeking to show it for eth truth of the matter asserted so you now need 801(d)(2)(c). o A statement by the party’s agent or servant concerning a matter within scope of the agency or employment, made during the existence of the relationship Two requirements 1. Person was an employee or an agent 2. Statement concerned matter in scope of employment. CA 1224 only if lawsuit is against the employer in cases using Respondeat Supeiror. In that only statements concern with the act in question i.e. a whistle blower would not be part of this. But could in federal court. The statement does not need to be made to an outsider. i.e. phone call about wolf bite. Not made outside but still admissible. Even though it was based on second hand speculation. o A co-conspirator of the party makes the statement during and in furtherance of the conspiracy
They are all agents of each other. Requirements 1. The statements are only admissible so long as the person making the statement was a co-conspirator. They have to already be in the plan o CA allows admissions before the conspiracy is in place. 2. Statement must be made during the pendancy. Post arrest terminates the conspiracy / post arrest statements are not admissible. 3. Must be in furtherance of the conspiracy. No off hand remarks.
Page 246 10-24 N: Offered against her by the opposing party.
10-25 1. No, on re-direct the party’s lawyer can try to repair. 2. Yes, you are stuck with you pleadings and requests to admit. It is binding. 10-26 1. No they cannot offer it because it is not against the party. 2. Does not matter if it is based on personal knowledge. 3. Possibly as an agent for the company. He is within scope of employment. In CA it would be able to come in because of respondeat superior. 10-27 N: it is an adoptive statement. A reasonable person would have responded. You might want to find out the context, like whatever jokes were going on that night. The rules urge caution. 10-28 They can admit the statement as an agent for the company. It is not Hearsay because it is a party admission against the party. 10-29 Would not think that it is hearsay because he is acting outside scope of employment. 10-30 It can be admitted because she was an agent speaking to her employer. It appears as if they are already in the conspiracy. Make sure to talk about this on the test. 10-33 1. It impeaches him and it can be used to prove the truth of the matter asserted. (depositions are under oath) 2. Yes 3. No, It is new information. He is repeating his own out of court statement to prove who was with Dave.
10-34 Yes he can be asked out his ID.
803,804 - We are pretty sure that the statements are reliable but it is better to call the witnesses to question them. 803 (1) present sense exception o a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. o Made before person has had a time to reflect and consider. o CA Narrower. There is a subject matter limitation. It CA it must be made to explain, qualify or make understandable conduct of delclarnat. Must describe something that the declarant is doing. (i.e. “John is carrying down the street” inadmissible in CA but is admissible in federal / I am walking down the street with a gun is admissible in CA) (2) Excited Utterance o A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. o Factors Age of declarant Nature of event Time between statements Observations concerning the emotional state of the declarant. o
10-39 It can come in as a present sense impression. Bernie can testify about Josh’s statement. Calmly would rule out excited utterance. 10-41 1. Will not work as present sense impression because it is not describing fall. May be in as agent. If you could show that the clerk was excited when he said it then it would be allowed. 3. there is nothing to indicate excitement. If it were to come in it would have to be under present sense impression. It suggested immediately after the event. However it is a bystander. They usually will only admit bystander statement if they can prove they bystander saw it or someone saw they bystander see it. 4. Not hearsay involved. There is no repetition. Trick question. 5. Inadmissible. Hearsay. 10-42 you would want to try for an excited utterance However there was a large lapse of time. She went back to work but left early. We do not know what affect this had. Could go either way. Look for continuous emotional distress.
10-43 It cannot come in as party admission but it can come in as an excited utterance. 10-44 1. Admissible because it is showing a mental state. Out co court statement by Bo, the week before that showed something. It also fits in 803(3) State of mind exception. 2. Not because it is remembering a certain mental state. This is backward looking. 3. Shows a sensation. Shows future intention and comes within the exception 4. Admissible if Bo was on the stand. However this is multiple levels of hearsay. We dnot have an exception that covers what bo told William what vince said. If there ar e multiple levels of hearsay you have to find an exception that would work on all levels. 10-45 1. State of mind exception 2. Backwards 3. State of mind, present sense impression. 4. Ask if it is even relevant. Part of it is backward. Could it be admissible under 803(4)? Probably not because its I self treatement. These statements are reliable in circumstances where they would say what is hurting to someone who could help them so there is an assumption that they are telling the truth. Where there is self-diagnoses, as here, it is not as reliable. He could be hung over and be embarrassed. 10-46 Hillmon issue. We do not have clarity to which the victims statement of future intent shows the intent of the other person.
Next class look at 803(3), 803(4-5). P.260.
Statement of a then existing condition—STATE OF MIND: 803(3): a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and health), BUT not including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the execution, revocation, id, or terms of the declarant's will This does not include backwards statements. o “I was mad at you last week” is inadmissible. I am angry at you is okay o To the extent that the it over laps with present sense condition, it can be birth i.e. I have a headache. IN CA backwards statements are allowed if declarant is not admissible but the state of mind has to actually be at issue in the case. o State of future intent I’m planning on going to Las Vegas. Statement can be used to prove that you did go to Las Vegas I’m planning to go to Santa Barbara with Jon Can it be offered to show that Jon when to Santa Barabara?
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o There is a logical leap there. The speaker may intend to go with Jon to Santa Barabara but all that it proves is that she thought she was going with Jon. Not that Jon actually went. Mutual Life Insurance Company v. Hillmon o Guy purchased three life insurance companies in short amount of time. o At issue is the admissibility of letter by Adolph Walters who was the dead body. The letters are important because they make it more likely that he defrauded the insurance company. Not just that he was planning n going to creek but that he was going with Hillmon. The court said that the letters could be used only to show not that Hillmon went but that it showed what Walters intended. It cannot be offered to show that Hillmon went Hillmon is an open issue. On an essay you would need to spot that open issue. Shepard v. U.S. o Wife prior to death said that the Whisky tasted funny and Dr. Shepard has poisoned her. P offered to show as dying declaration: This is not the case here P then said state of mind. Offered as evidence that she believed she was poisoned. Can’t do this because it is backward looking. Why can’t it be offered to prove that it was her state of mind? What she believed is irrelevant. The issue is did he poison her. P is trying to prove with her statement in order to prove the fact remembered or believed. If this was the case, every state, whether unreliable or not, could prove the fact remembered or believed. If the statement of memory or belief relates to the declarant will, then it can be admitted. (Wills clause of 803(3)) Must be distinguished between non-hearsay and hearsay state of mind. o I.e. I am the poper – non hearsay o I really like that music – hearsay, need 803(3)
Featser held that one person’s statement of intent to show the intent of another person. But it is limited to necessity.
Statements for the purposes of Medical Diagnosis and Treatment: 803(4): Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This exception does not in could backward looking statements. Describing past and present pain. Must be pertinent to treatment and diagnoses. Does not matter that the driver ran the red light; only that she was injured. I.e. “My back is killing me” o Present sense, state of mind, medical diagnoses.” o Elements o Purpose = must be for diagnoses for treatement
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o Must describe past or present symptoms, etc. o Must be pertinent to diagnoses or treatment. i.e. My back hurt when John hit me. Back hurt is okay; john hit me is not.
10-44
10-47 He statements about her symptoms and when she felt she got sick is admissible but the part about where she ate (what she ate is okay) and who made it is not. 10-48 The father is trying to get help for his kid. There is an interest in the telling the truth since it is his kid. This is different than 10-45(4) because it is not self-help on himself. As long as it si made by the declarant for the purpose of medical treatment it is okay. 10-49 Certainly what was done was pertinent to medical diagnoses but the person is probably not under 803(4). However the argument could be made that the person who did the wrong is important to medical treatment (i.e. like a parent or stranger).
Recorded Recollections: 803(5): a memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by the adverse party. (made a record and don't remember what it said) - Elements o 1. memo or recording o 2. the matter was once withing witnesses knowledge o 3. No present recollection o 4. made while fresh in W mind o 5. Accurate when made - Declarant and witness must be same person. - If you get past these requirement, you DO NOT get to show the evidence to the jury or the courtroom; only the witness. - CA is really identical.
10-50 1. Yes it is admissible because Jane is the opponent so it is a party opponent. Might not also be hearsay because it is not an assertion. 2. He totally misstated the rule. 3. Would be sustained because there is no evidence that it was fresh in the memory or that he wrote it. 4 at this point you admit it because he layed the foundation 5. You can read it to the testimony but they cannot see it. 6. Yes it would be admissible as an adoption. 10-51 1. Yes it can be refreshed. 2. It is not admissible under 803(5) but they can read the entry or the opponent wants it in. Business Records Exception o 1. Business record o 2. Made at or near time o 3. By or from a person with knowledge person who knows about what is being record does not have to make the record but the record must be comprised of information from people who do have first hand information. o 4. Of regular conducted business activity AND regular practice to make record Type of record that works is type of record that business needs to stay in business. o 5. Person familiar with recording or keeping you just have to show they are familiar with records. o 6. Unless not trustworthy o CA Limited to matters which are observable like a condition act or event. Federal rules include opinion (medical or business opinion are out in CA).
10-52 Not everything is admissible. The store owner is not a person that is familiar with record keeping and he is outside of business. 10-53 1. Admissible because has a duty, as an employee, to tell the truth. They do not have to be the person making the records. 2. As long as she new that one of the employees made the record, it is not important who specifically made the record.
10-54 I would not think so because this does not count as regular business records. 10-55 1. Yes 2. No
3. Yes 4. Y. This is a matter observed pursuit to duty (803(8)(b)) 5. y. decal is out of court statement. Decal shows that machine is calibrated and reliable. Could come in under matters observed or agency activity. If this was criminal it could not come in under B. 6. N if it was a criminal case unless it was against government. Y if it was a civil trial . 7. y. evaluative report. 10-56 bystander does not work for highway patrol. Maybe able to come in under excited utterance. 10-57 The is an evaluation report. 10-58 No not in a criminal case. She is part of the law enforcement team. 10-59 1. Yes. Business record 2. What would you want to know? Kind of thing prepared in the ordinary course of business and recorded in the ordinary course of business. 3. You would need to know a little more about the business. 4. Yes 5. No this is personal 6. See if they were required for business. Most likely yes.
803(7) - Allows evidence that is not included in the memorandum that would have been if existed. o We are talking about a witness that would get on the stand and review the purchase order and say X did not purchase anything.
Public record Exception - Elements o Record of Agency activity (every level of government) Does not count private business contracted by the government. They would have to come in under business records exception. (only private business are for business records exception). o Matters Observed by employees of government agency. Pursuant to duty Duty to report Law enforcement limitations in criminal cases o Evaluative Reports Investigation pursuant to legal authority
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Unless not trustworthy Criminal limitations Only against government.
CA Version o Federal allows factual findings. CA does not. Limits you to records of act, condition or event. More observations.
10-60 1.Admissible under 803(17) 2. Same 10-61 Admissible under 803(18) a learned treatise. It can be any treatise. 10-62 It is admissible under 803(21) as offered to show what type of person the D is. 10-63 1. It is admissible hearsay and can come in under 803(12) 2. Yes, record or property exception 803(15) 3. Yes, 803(13) Must be authenticated though. 4. Yes,
9/25/06 804 In order for these to come in the declarant must be unavailable. 10-65 1. Yes 2. no, they were the cause of the unavailability 10-66
10-72 if she thought that he death was imminent it could be offered by it is not clear. You would need to show some facts that show that she thinks that death is imminent. Chase does not think there is enough here. 10-73 Probably not because the statement does not concern the circumstances and it is not a homicide case so it cannot come in.
10-74 probably not because he did not appear to believe that he was going to die. He tried to call the doctor not 911. It could come in as an excited utterance possibly. 10-75 No because he was available. 10-76 no because he does not believe that his death is imminent. STATEMENTS AGAINST INTEREST Williamson Case - Two people driving. One person of the two drivers is arrested. He said that he had the drugs that belonged to the other guy. He refused to testify at trial out of fear for his life. They then offered his statement as a statement against his interest. His statement that it was the other guys drugs was allowed in because it was a statement that involved a conspiracy and thus would be against his interest. - Where you have a co-conspirator, the courts will read very narrowly. They will only allow the statements which are actually against the declarant’s interest. 10-77 this was not against his interest when he said it. So it is not admissible. 10-78 1. Not against his interest or give rise to liability 2. Same 10-79 if she did not appreciate the against interest element because she was leaving and safe then maybe not. It may not be admissible to the degree that it implicates Lurch in the crime. 10-80 issue: was it against his interest. 10-81 Does not seem to give rise for liability to violation of interest. In CA maybe because of social disgrace.
10/2/06
Confrontation Clause Maryland v. Craig o Involved young witness who requested to testify out of the presence of defendant.
o The procedure at issue was a one way close circuit television that broadcast the testimony of a 6 year old child abuse victim who was located out of the court room in the courthouse. Craig considered the viability of video pre-trial testimony. o The D enjoys right to face to face confrontation. The theory is that witness who are lying will give off signs that are picked up by the court. o Court approved the procedure for a child to testify outside of the presence of the D. Reasoning Confrontation clause is not absolute right but is rather for compelling public interest. The court thought that the child would be embarrassed or traumatized if made to have a face to face testimony. This is different from the rape victim case because the court ruled that the P in that case would not be traumatized if forced into a face to face testimony. When this is allowed, the child must be reviewed by the judge. o It cannot just be that the child is afraid of testifying in court. The source of the trauma must be the defendant. o Process: Live feed under oath. D attorney is in the room with the child and has a chance to cross-examine. o Three interest The right of the child to avoid further injury The right of prosecution to try the case The right of the defendant. Burton o 2 Ds, a co-d named Evans and one named Burton. They were accused of robbing a postoffice. Evans confused twice and named and accomplice, the second confession named Burton and accomplice. The statement was first introduced as a party admission against Evans but not Burton. But it is hard to tell the jury to use the statement against one but not the other. o What is the reason they should not allow these statements? They will not be able to forget the statement for one but not the other. Under the CC, there is a conflict. There is no opportunity for Bruton to cross examine about his statement because Evans can use the 5th. One other rule is that post-arrest confessions are particularly unrelalible especially where the blame shifts. o What are prosecuteors choices? Forego statement but that is not very good. He could have separate trials. You could have separate juries Redact statement o What this case forbids in a statement of 1 D against another D. o Had Evans taken the stand and Burton cross examined him, then you would not have an confrontation clause issue. Crawford o Completely got rid of Ohio v. Roberts. o This case expanded and contracted the rules concerning the CC. In the Crawford case the particular statement at issue was a statement made by the D wife involving an assault with a deadly weapon. The statement was taken at a police station after the wife had been
mirandized. Ultimately only the husband was charged. At trial when the wife was called to testify she used the spousal expection and did not have to say anything. They then tried to o If you are dealing with testimonial hearsay, the CC makes those statements inadmissible unless you can show two things: 1) You must show that the declarant is unavalible 2) Must have had opportunity to cross o What is testimonial hearsay? Crawford said we leave that for another day Grand jury testimony is testimonial hearsay. o Confrontation clause is meant to prevent the government from admitting ex parte testimony.
Davis Case o Did the court in Davis consider the 911 testimonial hearsay? o The court said that the 911 was accusatory but not testimonial. This was not relating to a past event. The courts want to look for a primary purpose. In this case it was important to the ocurt that it was an ongoing emergency. What seems important is whether the need is help and aid or gathering information. o Why are the crime scene statements testimonial? o The court seems to draw the line between emergencies where the police are trying to get the facts they need in order to help and protect someone verses situations where the parties are trying to obtain info. o If gathering the information is for the purpose of finding fault it is TH; but if it is for a aid it is not. o Is there anyway that you can admist testimonial hearsay in this situation. Yes and the court mentions it. It is a forfeiture provision. If the Government can show by a preponderance of evidence that the D procured the unavailability of the witness. o Police statement interrogation will be testimonial
Step 1: Is there a hearsay exception (If there is not a hearsay exception you cannot get it in regardless) Step 2: Is this a criminal case and offered against the criminal defendant Step 3: Is this testimonial hearsay (If product of police interrogation it is testimonial unless done to respond to help or assistance). Step 4: If yes then ask if the D is unavailable and an opportunity to cross examine. 11-1 1. First must show that the statement was testimonial. This could be admitted under co-conspirator and party opponent. 2. This is the Bruton problem. Not admissible against one of them at a joint trial. You could offer against him at his trial. 11-2 Could if there was an opportunity to be cross-examined.
11-3 Medical treatment exception would apply for Dr. Thomas. Courts are reluctant to admit the identity of the assailment. The cause of injury would be okay. *If you need the child to identify the attacker the child needs to testify. 11-4 It could come in under the excited utterance or presence sense impression (neither of these requires unavailability). Is this testimonial hearsay? Maybe. It does not appear to be something that is gathered in an investigation. However it is accusatory. A dying declaration is admissible. If it is non-testimonial, you can omit it. You could say that it was not testimonial because it was no said in order that it could be used at trial. 11-5 Hearsay exception would be party oppoenent. This is like the Bruton case because there is no opportunity to corss examine and highly prejudicial. Confessions by one co-defendnat can never be offered againt the other D unless the person making the confession testifies. 11-6 Prior Id would admit it. As long as she will answer questions on cross the CC in satisfied. 11-7 Yes as long as the jurisdiction allows it.
Relevance Cont’d
For class on moday: 408, 404a, 606b and 609a These were amended. If congress does not act by Dec. 1st. they go into action. Go to the amendments and look at them because these will be what we will tested on. 407 o CA is different. You can admit subsequent remdial measures in products liability cases.
6-1 1. Being fired is not admissible to prove liability. That is the limitation in 407. 2. The accident study is on the line. It looks like the studies are triggered upon an accident. Some courts have held where there is an automatic procedure courts are more reluctant to exclude them. On the other side, they could be arguably done to see what happened or who was at fault. 6-2 their defense is that it is not their property So this could be an exception because they could admit it to show ownership or control if controverted. It has to be controverted. If the D had raised the defense, then the fact that he trimmed the bush to show ownership would not be admissible.
6-3 not admitted 6-4 This is not controvereted that they own the property. It is not in controversy. The club did not say that it was not their sidewalk. 6-5 we are trying to avoid a corrective action. Courts will still prohibit a corrective action, even done by another person, as admissible. 6-6 It appears that this would be a subsequent remedial measure. If the warnings had been printed before but not released until after, they would be admissible.
R. 410 Case U.S. v. Mezzanato - if there is a special negotiations between D and P, the D can waive his rights to 410. We will not talk any plea deal unless any statement you make we can use at trial if you do not agree to a plea deal.
6-7 There is no dispute. SO it is admissible. B admits claim and amount so 408 does not apply. 6-8 the offer to pay is not admissible but the other might as a party opponent admission. No suite has been filed and there is no dispute. 6-9 1. They are disputing the amount and validity of the claim. Is this an attempt to negotiate a settlement. Not admissible. They are not actual offer but statements made in an attempt to compromise. 2. the statement is not admissible but otherwise that was otherwise discoverable is not made admissible. These are business record which are admissible. 3. Not is dispute because he admitted the claim and the amount in dispute. Just because he was trying to get off the hook by offering to pay less does not bring it under the exception. 4. no. Not to a government regulatory agency. 6-10 This would come under the exception. You can use to impeach by a prior inconsistent statement under new 408. Inadmissible. 6-11 1.without some sort of actual authority to negotiate a plea there is no protection for casual statements to police. Cannot be made as a causal statement
2. Yes, as long as the guilty plea stands. It is only when a guilty plea is withdrawn that statements with that are inadmissible. 3. the D opened the door. SO much of the statement can come in as needed to not be misleading. The p can fix it if it is misleading. 4. Split. 50/50. rule by its language only limits to statements made by D. 6-12 1. prior to the amendment the answer would be unclear. NOW the amendments refers to using settlement proceedings in one context which is when the settlement negotiations are being done by a government regulatory agency. It should block it. Under amended rule that her statements made during S.N. is inadmissible if offered by prosecution. 2. This involves the application of 410 in the civil context. Nothing in rule 10 is the use of guilty pleas. 6-13 It is clear. Some have held that it would not apply in an unrelated case. Other have held that it would come in.
10/11/06
R. 411 - You cannot use the fact that someone had insurance or did not have insurance for liability. - You can if you have another purpose if it is relevant. This is because alone it is not particularly probative. This type of evidence is really subject to misuse by jurors. 6-14 1. not permitted as character evidence. 2. Exactly what 410 wants to exclude. 3. Not really relevant. 6-15 Not admissible. By offering it they are trying to show that they are careless. 6-16 Should have been allowed because it shows the bias of the witness.
CHARACTER EVIDENCE
People v. Zackowitz The D wife was insulted. He was angry and came back to the insulter and fired a pistol at them. The question was whether the killing was premeditated What was the evidence offered against him?
o He had other weapons in his house. They were trying to argue that he was a violent guy and a person does not have weapons unless he intends to use them. It is absolutely relevant. So why does the court say we should not admit it? It is unfair prejudice and what the jury might do with the information. One concern is that they will overvalue the evidence. The other concern is that the jury will not care if he did it or not but not like him and convict him anyway. In criminal cases in order to enable to do whatever the D needs to do to defend himself, the D can admit his own character evidence and C.E of the D victim. Michelson v. U.S. The D was accused of bribery. He called 5 character witness who all testified who has a reputation for being honest and law abiding. The D got to offer this as evidence. What is the D complain about? That the P asked the witness if they were aware the D was arrested for receiving stolen property 20 years ago. It is undermining the basis for the character witness testimony. If the witness were aware of the arrest, the testimony of the honesty of the D is not very reliable. Is there any limitation of the questions that can be asked? o The P had to lay the good faith basis to ask the question. But as long as there is a good-faith basis, it comes in. Rule 404 4 ways that character evidence comes in at trial: o 1) Propensity use if you are trying to offer evidence that a person is acting in accordance with personal traits or characteristics. 404(a) deals with this. We think it is more likely that they act in conformity with character. This would be like D is a violent person so he must had done the assault. o 2) Character itself in an issue – this is where someone reputation or character is at issue in the case then it can come in. o 3) Specific acts for purpose other than propensity use – this is the large bump. o 4) Impeachment -Propensity Use Where you are offering a person’s character for eth proof that they acted in accordance with that character. Generally it must be narrow. Bad guy vs. good guy will not work. Violent v. not violent will. Exception o Subpart 1 – deals with character evidence of the accused (criminal defendant) In a civil case where someone is being accused of driving recklessly, you cannot prove they are a reckless driver. The accused can offer evidence of his or her own character OR by the prosecution to rebut what the accused offered. P cannot do it until the door is opened. They can also offer evidence of the victim. i.e. in a battery case where D was accused and said he was defending himself. D could argue that V is a violent person.. This opens the door that P can offer that D is the violent person but only that. Trait must match. o 404(a)(2) Subpart 2 – When can you offer evidence of allege victim
Once the D does it, the P can do it. P can rebut the evidence with something different. i.e If D offers evidence that V is violent P can offer under this subpart that V is peaceful or under the above subart 1, that D is violent. In a homicide case, any evidence that the victim was the first aggressor, allows P to offer evidence of peacefulness of V. i.e If D offers a witness that V was the first aggressor, P can offer evidence that V was a peaceful person. Just has to be any evidence in a homicide case. Rule: If you are offering propensity evidence you can never do it in a civil case. A(1) and A(2) both are only for criminal cases. Never admissible in a civil case. It can only find its way to criminal cases. Rule: The D must open the door. P can never offer P.E. unless D opens the door. Rule: IF D opens the door by making claims about the victim, the P can offer evidence refuting the claims by the D on the V or he can say that the D, rather than V, has the X character Rule: The character trait that is being offered must be pertinent to the case. So if it is a murder case a history of violence would be pertentient must not the trait of truthfulness. Propensity evidence is goverened by 405(a) which allows reputation or opinion. Never specific acts. You can on cross examination inquire into specific acts. (i.e. D offer W that says D is very honest. P can ask if W was aware that D was arrested for robbery last year). Really only three ways that open the door 1) D can offer character evidence of himself and P can rebut. 2) D can offer C.E. of victim and P can rebut with the same characteristics or say V had different characteristics. 3) If any evidence of homicide victim comes in, P can offer character evidence. 405(a) Governs the forms of evidence. You can have character evidence in the from of opinion or reputation. There is an hearsay exception that will over come this. What we will not do is to allow someone to testify as to facts which lead to an additional inference. On cross you might be able to get into specific instances of conduct. This is like the Michelson case where on cross the witness were asked if they knew about the prior arrest. This is so because you are testing the reliability of the evidence. Differences in CA - When trying to show character of D or V, the D can use facts as well as reputation and opinion. 68-75 We will not get into 404B until after midterm.
Page 68 5-1 What we are talking about in this case is propensity evidence. 1. Civil case. You cannot admit it. 2. Not unless he opens the door. It is not reputation and it is not opinion. Ask what type of case (civil or criminal)? Who is offering? In what form?
3. He can admit the meek part but not the responsibility because that is not relevant. 4. Part of peaceful could come in but the specific acts cannot. The fact that it is his mother lowers the credibility. 5. Yes. It is testing the credibility of the witness. 6. Yes they can. It is a criminal case, the D opened the door and it is in rebuttal. 5-2 It is inadmissible because it is a civil case. Also, the trait of the cows is not the trait of the D. 404 limits character evidence to that of a person. 5-3 1.This is a specific act offered to show that he had an alcohol problem and a propensity to drink. It is not admissible unless it is used on cross. 2. Criminal and opens the door but it does not seem relevant. 3. No because it is a specific act or absence of specific act. 5-4 1. Civil Case. What if it was a criminal case? No because it was an event and P cannot open the door. 2. Not in a civil case. In criminal case, the door is not open. 3. In a criminal case this cannot come in because it is the lack of a specific act. 4. In a criminal case she could not testify about fights but they could about temper. 5-5 It is not admissible because they did not open the door. Also this is not a normal trait in someone. 5-6 not relevant. 5-7 1 is not admissible because it is a specific act. 2. is admissible because it is an opinion. 5-8 1. Admissible if the honesty was relevant to the bribery. 2. Yes for 1. But 2 is a specific act and it is not on cross. 5-9 1. Yes because the D opened the door on V. 5-10 1. Not admissible because the door is not opened. 2. Yes for truthfulness but not peacefulness. 3. Yes they can ask this. Beares on reputation 4. The rule is the “good-faith” based. if there are wide spread rumors it effects the reputation. 5. Relevant maybe for impeachment but not for propensity. And wrong form for second part 5-11
1. Not admissible because the door is not opened and specific act 2. No, does not seem relevant.
Hearsay Test Review
10-18-06 Notes High score was 32, median was 23. 1. Propensity (404(a) + 405) 2. Character in issue (405) a. 3. Other Acts (404(b)) 4. Impeachment (608 + 609) 404(b) Not propensity. E.g. motive, opportunity, intent, preparation, plan, knowledge absence of mistake or accident When is character at issue in a trial? Something you have to prove because it is an essential element of a case. Most of these are not criminal issues. Mostly civil cases. One criminal case in Alabama is seduction, most show that the woman was of chased character. The defense of entrapment, government officer talked me into it or made me do it. Two different approaches o Objective – majority approach. Subjected to the kind of pressure to commit the offense that a reasonable person would succumb to. o Subjective – minority. Defendant would have to show that he did not have a predisposition towards committing the offense. The defendant’s character in terms of whether he had a predisposition to commit a defense is an issue. Civil Cases, it applies often o Defamation – someone’s character has been damaged. The plaintiff’s character is always going to be an issue because you have to show their character and then show that it was damaged. o Negligent entrustment – negligent of you to give your wild son the use of your car. It is the character of the person to whom you’ve entrusted your vehicle that is at issue. o Negligent in hiring a certain type of person in doing a certain job. o Child custody cases, or parental fitness. Sometimes can be an issue, but it is not necessarily an issue. The bottom line is that a person’s character will likely be at issue in a civil case by a long measure than criminal. 404 does not have anything to say about character at issue. 405 – has the rules for when character is at issue 405(a) Evidence made by testimony of reputation or opinion. This is propensity use.
405(b) Where it is an essential element (character at issue), prove may be made of specific instances of that person’s conduct. If character is at issue you can offer o Opinion o Reputation o And specific acts. They can now be offered because you are actually trying to prove the character, not using character to prove something else.
404(a) cases can only be criminal 5-12: Character is at issue because it is essential to show that the employee was the kind of person that a non-negligent employer would not have hired. The opinion is admissible. The specific acts are also admissible because 405(b) allows it when character is in issue. 5-13: 1. Admissible. One issue is to prove falsity, so offering evidence that is inconsistent with being lazy then you are showing that the comment is false. 2. He is trying to prove that he is not lazy, but also if his reputation is one of an industrial person it shows that his reputation may be damaged by something like this. 3. Irrelevant. 4. Admissible. The defendant is no proving truth by offering opinion evidence that he is lazy. 5. Admissible, if his reputation is one of being a nerd then it might not damage his reputation by calling him a nerd. 5-14: (note: we spent a lot of time on this in class, the argument for the defense) 1. Father’s opinion is admissible because this is a jurisdiction which applies subjective. The specific incident is also admissible because it bears upon his predisposition to commit a crime. 2. Admissible, it is on point, an honest person is not predisposed to break the law. 3. Defense would argue that it is unfairly prejudicial, the crimes are dissimilar because one looks like personal use and the other looks like a major distributer. Chase says that there are arguments for the prosecutor too, but she thinks that this would ultimately not come in because of 403. The offenses are similar because of drug similarity (shows a predisposition to violate drug laws) but there are substantial differences. Chase says that the dissimilarities weaken the probative value and help the probative value to be outweighed. 404(b) – first sentence reaffirms what a says. But it is admissible for other purposes such as …. This is not an exclusive list. This rule invites you to hunt really hard to find some legitimate reason to offer it. Limitation: the prosecution shall provide reasonable notice of the general nature of any such evidence that it intends to introduce. It has to give the defendant advanced notice. How do you distinguish the use of intent? It looks like pure propensity evidence. But if the defendant claims that he though it was baking soda, then prosecution can show that this is the third time he has been charged with possession of cocaine. The proponenet of this evidence must be able to demonstrate that it is not being used for propensity purposes, even though the jury will almost definitely use it that way, but that there is another purpose for using the evidence. You can get a limiting instruction, but they don’t do any good. But remember that 403 is always lurking in the background, so if it looks like it is not very probative and the danger of confusion of issues, then 403 might be able to keep it out. But 403 slants substantially in favor of admission. Only
where the danger is substantially greater that you have a shot of keeping it out. So if you are defense you can do two things: get a limiting instruction, and argue 403. 5-15: This shows the winkable nature of the rules. The argument is that they are offering it to show a propensity. But prosecutor will say that they are offering it to show that he had the equipment and plan or scheme to do it. And if he had the equipment necessary to do it, it makes it more likely that he did it. 5-16: Trying to get rid of your evidence in the case against you. Not offering to show that he is a bad person. Trying to show that the person he tried to kill was the main evidence, it shows that he knows he was guilty. Shows consciousness of guilt. 5-17: Admissible to show that it was a common scheme, this is the way he operates. If there is an issue of identity, can offer the fact that he had done it before using the same modus operandi. Conditional relevance, must establish that a reasonable jury could have found that Lester has done this two other times also. Don’t even have to show by a preponderance of the evidence that the other two acts occurred. Doesn’t have to be a conviction or anything. If you know who did it the first time, and it is the same this time, then it is more likely that the same person. The Huddleston case is very important on this, all that is required is that a reasonable jury could conclude that he did it the first time. Cont’d – What evidence could you offer for the two prior allegations? If you cannot prove it by hearsay you would have to bring on victims. 5-18: Yes. It is being offered to show intent, he did it intentionally, he wasn’t coerced into it. Intent is relevant because of the defense that he raised. It refutes the duress defense. Don’t read res gestae, start looking at the habit assignment (read 406, just do the review problems and read 406).
5-19 1. is that relevant. Different crime. She is raising a duress defense. If she had done it before willingly, it could show a willingness to assist in another crime. 2. Shows voluntary participation in a crime. This is like the Patti Hearst case. Purpose is to defeat defense of duress. 5-20 It could be relevant for a propensity to commit crimes. Could also be offered for motive. Motive could be anger because he keeps arresting her. If you can isolate that purpose you can admit for that purpose. 5-21 Relevant to show that he knew what marijuana looked like. 403 could come into play. They would have to find that he possessed it before. The charges were dropped. This could give a rise to a weak inference. 5-22 Absence of accident. You can show the other accidents to show that they were no very much like an accident. Used to rebut the claim that it was an accident.
5-23 Show opportunity and possible preparation. He has the materials so he has the opportunity to carry it out. Admissible under 404(b). 5-24 It does not appear to have another use beside propensity so it is not admissible. 5-25 1. This is propensity. Cannot come in unless another reason was found. 2. does not have to be a proved allegation. It can be a dismissed charge, acquittal, etc. 5-26 1.Because of the defense is raised, you can find a more narrow use. If there was not a defense then it would look more like propensity. 2. If you are dealing with character evidence you have several issues. The D has not opened the door and it is not in the right form. Must be by opinion or reputation, not specific fact. 5-31 This is a civil case. Is propensity evidence admissible in civil evidence? No. Civil cases will never admitted propensity evidence. 5-32 1. Admissible because he reputation is at issue so you can prove character by opinion reputation or specific acts. But might not be relevant because the Boy Scouts probably are not worthy judges of character for this purpose. 2. Can come in as reputation. Bares upon the thief allegation. 3. Relevant because shows fiscal honesty. You can use specific acts when character is at issue. 4. does not seem to bear upon character 5. Shows she is possibly a thief. 6. Does not seem relevant. 403 issue. 406 – Habit, Routine Is relevant to show that a person was in conformity with the habit. Must distinguish between action and conformity. Habit is a response to a particular stimulus. There is also organizational habits o If there is a routine, you can offer evidence of that routine on a particular occasion. How do we distinguish between habit and character o Character is more general like “someone is violent or honest”. The problem with this is that someone who is careful at work could be reckless while driving. They do not offer much of a base to predict a behavior. o Where habits give a regular response to a particular stimulus. There is a better base. Gives us greater reliability to predict Strong enough to be admitted even with specific eye witness testimony to the contrary.
Make sure you look at the sample. How many times has habit been observed and how often. There must be uniformity of response. It is is varied then it does not appear to be a habit. Need to establish a habit.
Next class: go through habit problems.
10/23/06
Evidence of a persons religious habits, does not qualify for an admission under habit evidence under the advisory committee notes. Habits must be something that you do not think about and just do. CA rule is the same. 5-34 1. Yes it is organizational habit. Probably need someone from the business to show that it was a routine practice, who is familiar with the organizational habit. This is much easier to establish. 5-35 1. Does not appear to be habit evidence. Looks like character evidence that would not be allowed to get in. 2. If it is routine then it is admissible. However, think about the word regularly. This may not rise to the level of habit. Habit must arise almost 100% of the time. 5-36 1. Always helps. However it is not much different from someone “always going to church on Sunday”. You need to show habit. It looks a little too volitional to be habit. Would it be admissible if Rob was in the habit of getting drunk everyday around noon? There are probably a lot more variables. This looks more like volitional rather than habit. 5-37 this appears to be policy as opposed to be habit. SEX Rule 412 When it was first enacted it was only for criminal cases but was latter extended to civil as well. This focuses on evidence that can be admitted as to the alleged victim or the plaintiff in a civil case. What does 412 prohibit. o Victims prior sexual behavior and sexual predisposition Lets take a date rape case? Is a victims predisposition make the issue of consent more or less likely. It is relevant. 412 says you cannot admit that. Why (policy) o To increase reporting
If someone thinks that their sexual history will be exposed then they will not go the police. Jury could misuse this type of information. If D offeres evidence under 412, then there must be notice. A written motion that specifically describes the evidence that the defendant wishes to offer. This motion must be served on all parties and the victim has to be notified. IF the judge decides that it si admissible then it is admitted just like any other piece of evidence. In civil cases if the probative value substantially outweighs the danger of unfair harm to any victim and unfair prejudice to any party. o Favors exclusion.
Rule 413 This focuses on sexual assaults Basically says if there is evidence of prior conduct by the D, it is admissible for any purpose that is relevant. Policy: the fact that sexual predators are often repeat offenders. The normal rules do not apply. These rules do not require conviction or arrest (413-415) Is there any way to keep the evidence out? 403 could possibly be used. It is difficult because the prejudice of the evidence must substantially outweigh it probative value.
Rule 414
Rule 415
6-18 1. relevant because it reflects on consent. Probably be admissible for a reasonable mistake on consent. 2. Not effected by 412. D could argue that she was doing it out of spite. 3. you have the right to remain silence. 6-19 1. With in protection of rape shield statute. 2. Inadmissible 3. Inadmissible 4. Admissible 6-20 probably could come in. It may be prejudicial but can come in. 6-22 1. probably a narrative response.
2. is character at issue. It is not against the can driver but it is against the cab company because they could be negoligent for hiring a bad driver sense they are being sued. 3. May be habit.
Examination of Witnesses Direct Examination - Cannot Lead – except o Necessary to develop Usually for witness who are very young, timid, or forgetful. Proper procedure is to ask a non-leading question. o Hostile witness Must first ask non-leading questions. Get hostile activity, get the court to say that he is a hostile witness then you can ask leading questions. Cross Examination - Cannot exceed scope of direct examination o Must pertain to subject matter of direct examination. You have some room to work with. You can argue why something relates to the subject matter of direct examination. o The court also has the discretion to go beyond the scope. You need to ask the courts permission. Most judges will allow you to go briefly beyond the scope so the witness does not have to be on the stand multiple times. However if you are allowed to go beyond the scope, you are treated like you are on direct examination meaning no leading questions. - Relevant to witness credibility - You can use leading questions. o You always want to lead because you get a lot more control. You want to make your case and narrowly tailor your questions so you get exactly what you need. These will be fact loaded questions that will tell you what the answer is. What is a leading question? - it is a question that suggests the answer. o i.e. Was the D driving fast? (leading) Have you ever been to Fresno? (not, even though it is a yes or no question). o i.e. Could you describe how the D was driving? (non-leading) - We want to get the testimony from the person with personal knowledge and not the lawyer. 611(a) - they want to find the truth - protect the witnesses - and be efficient in trying the case. 615 No discretion. The court shall
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If any party makes a request for the witness to be excluded, the must do it. We do not want witness getting on same page. Exceptions o P and D have the right to be there. o A person whose presence is shown to be essentiall to the parties cause The most common is an expert witness. Sometimes you need you expert there to hear the other parties expert to critique the case o Any one authorized by statutes Court appointed translator.
7-1 1. leading. If it is a critical fact the court will sustain it. If it si a prelimary matter the court often looks at it necessary. They just want to get to the point. 2. Leading still. It suggests the answer 3. No problems. 4. Compound 5. Asked an answere 6. Narrative 7-2 1. Assuming facts that are not in evidence. Should be rephrased, “did you see the D?” 2. Okay 3. Leading 4. Calls for speculation and compound. 5. No 6. Asked and answered plus it is narrative. 7-3 1. outside the scope and irrelevant 2. It might lead to an inference that he was not on the job but it could be outside the scope if not. 3. beyond the scope and irrelevant 7-4 overruled, bears on the witness credibility.
10/27/06 Witness Impeachment
Many of the rules that govern impeachment are based out of the common law and are not found in the federal rules. Impeaching the witness is the process of discrediting the witness credibility. There are four ways to do this
o 1)Testimonial Capacity The three things you want to focus on are: Ability of witness to recall Ability of witness to communicate o Mental illness, intoxication, age can all affect witness ability to communicate on the stand. Ability of witness to perceive o This could be something as small as a unwell lit room or the witness was not wearing his glasses. o 2) Motives Bias i.e. witness is family Prejudice i.e. witness is enemy Interest i.e. having an interest in the outcome of the case. Expert witnesses are always paid to testify. If a certain expert get paid 80% of his income for testifying for a particular type of case Corruption o 3) Character Prior Convictions Governed by rules 609 Prior Acts Governed by rule 608 Reputation or Opinion o 4) Inconsistencies Prior inconsistent statements Contradiction Sometimes you can get the witness to agree that he was formally wrong. You can also bring in someone else to contradict the evidence. We need to be aware of 610 which says: Evidence of the belief or opinions of the witness on religion cannot be used to impeach or credit the witness creditability. You can however show that the witness is an elder in a church with the accused. 7-5 1. Contradiction. If the witness is incorrect about what the witness has testified about he might be incorrect on other facts. 2. Motive (interest or bias) 3. Prior conviction. This would be unlikely against a criminal D but may come in under other witness. 4. Impeachment using prior bad act to show dishonest character. 5. problem with recall 6. P.I.S. 7-6 1. contradiction
2. same 3. cannot contradict on a fact that is not also independently relevant to the case. What about the word wrong. It leans toward character. Kind of saying that she is a liar. 7-7 1. example of a witness who identified with adverse party. 2. No rule against impeaching your own witness 3. You would not be impeaching in character and it is not a prior conviction 4. not improper impeachment 7-8 the problem is that it is assuming that the D is in the gang. What is the proper use? Bias. If they are in the same gang, Preston might want to help his fellow gang member. 7-9 Permissible because it is not trying to credit her for religious beliefs, this is more about bias. Not about religious principles. Convictions of Crime – 609 - Remember that this is in the process of being amended. - The amended version will be what is on the exam. - 609 (a)(2) o now felons can testify but we will allow them to be impeached by their prior felony convictions o How is prior conviction relevant to their credibility? It tells you they are a criminal and broke the law. What effect does that have under the question of whether they are telling the truth? If someone has broken the law in the past may be more inclined to lie under oath. It raises slightly the possibility. The trick is to know which standard you are applying and apply is correctly. 609(a)(2) is for attacking the witness CHARACTER FOR TRUTHFULNESS. i.e. what if the crime was obstruction? This could involve faklse information, lying. Under the new rule if it can be readily ascertained on how justice was obstructed and you can show that it was obstructed by giving false information to the police, it becomes a 602(a)(2) crime. This applies to all crimes (even putting the wrong name in a hotel registry). The court shall admit it. It is not discretionary. - 609(a)(1) o deals only with felonies. o Two different rules: One for criminal defendant and one for anybody else For Criminal defendant Admit felony of the probative value if greater than the prejudice. This is hard to pass. This will almost never come in. Anybody else Felonies subject to 403.
o 403 says it is admissible unless the probative value is substantially outweighed by unfair prejudice. This leans heavily towards admitting the evidence. 609(b) o imposes a time limit, this is not absolute, but generally convictions over 10 years are not admissible. o Exception to 10 year rule Three requirements The interest of justice will be served The probative value must be substantially outweigh the danger of unfair prejudice Provide written notice in advance of trial 609(C) o says you cannot use prior conviction if: there has been a pardon and not committed a subsequent felony or; pardon, etc. based on a felon of innocence. 609(d) o applies to junivenile conviction.. they are generally not admissible o if the case is a criminal case and the witness is not the accused then the court can allow juvenile conviction. 609(e) o if there is a conviction it does not matter if it is being appealed.
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10/30/06
7-10 1. would not be admissible. It is not dealing with impeachment. He is trying to show that because he did it once, he will do it again. 2. Embezllment. Still will not come in. 2. Purpose would be to show that Wally was not truthful. Must come in to bear on honesty but under what standard? Under 609(a)(2) evidence shall be committed. Charges cannot come in. Must be conviction 7-11 Unless you can show some dishonesty or fraud. This does not mean you are a liar. You need to show dishonesty for it to be allowed. 7-12 1. Which test applies? See if the probative value outweighs the danger of prejudice. SO who do you apply that? Our focus is on impeachment. This will come in and it is prejudicial. 2. This is the wrong type of crime. It is a misdomenor and it is not a crime about dishionesty. 3. It is over ten years. Juvenile convictions can never be used where the witness is the defendant. Similar type of crime which would make it very prejudicial.
4. What does it mean sentence suspended? It means he did not serve any time. We would need the date of conviction also. Is it likely to come in? you are probably over the time period. It is release form confinement or the date of conviction; if there is no confinement then you go from the date of conviction. It must be punishable in excess of a year. There is another problem – aggravated battery is a similar crime and must be more probative than prejudicial and it appears that it would not come in. 5. The felony is over a year. Is stealing probative of lying on the stand. Theft can occur by deception. If the theft involved some type of deception then the court cannot exclude. If there was no deception and it was like pulling a gun, then it must be more probative that prejudicial. Even if the elements of a crime have nothing to do with dishonesty, if the crime was carried out in a dishonest way, it can come in under the new rules. ** 608 This also governs character to impeach a witness 608(a) – governs reputation and opinion evidence. 608 tells you what type of character evidence can come in under 405. o Allows you to offer a separate witness to testify that the first witness has a character for lying. This goes back to reputation and opinion. This is also called an extrinsic witness. 608(b) – Allows you to inquire into specific untruthful acts. You cannot offer another witness or documentary proof that witness 1 did something untruthful or a specific act. Cannot use extrinsic evidence. o Two times you can bring up specific acts 1) When you are asking about witness own truthful acts (i.e. “Isn’t if a fact that you lied on your mortgage application?”) But the witness may lie about it and you may not bring in extrinsic evidence to refute otherwise. 2) Where there is a character witness who says that he knows the witness. You can ask the witness about specific act. You arte testing the character witness credibility. o Limitations Can only be used for truthfulness or untruthfulness Evidence for truthfulness only after truthfulness has been attacked. 1)Prior acts must be about truthfulness 2) On Cross: You can ask about witness own untruthful act You can ask a witness about another person untruthful acts. 3)No extrinsic evidence is allowed. You are stuck with the answer. 4) Why you can inquire about a truthful act you cannot inquire about the consequences of that act. (i.e. Not okay to ask “isn’t true that you lost your job because your boss found out that you lied on your mortgage application.”) If you can show a different prupose, like motive, it might be okay. But if all that you are trying to do is impeach a witness you are limited to the conduct and not what flows from the conduct. Impeachment by prior inconsistent statement o 613 – Governs this type of impeachment 613(a) you do not have to show the contents to the witness on request it shall be shown to opposing counsel. You are allowed to sneak up on the witness.
613(b) – does require that if you are going to use extrinsic evidence like a transcript, other witness, etc, you cannot do so unless the witness is provided with an opportunity to explain. Two times when you do not need a witness time to explain o 1) This does not apply to admission by a party opponent. If statement was by the party, you do not need to give witness time to explain. o 2) Where all the evidence about the statements is hearsay. Where you do not have a live witness in court you can still use. Inconsistent statements for impeachment. When you are impeaching a declarant (not a witness who has testified and lied in court), you do not need to give them an opportunity to testify about the prior statement.
7-13 1. He is asking about his arrest. This is not the act, it is the result. It is okay to ask if you lied on your tax retruns but not okay to ask if she was arrested for lying. 2. This is a specific act. It is about truthfulness. Court has discretion but usually will be allowed in. 3. This might not be about truthfulness because bribery is not necessarily about truthfulness. Factors surrounding bribery do not matter. Pivots on bribery.
11/1/06 Four Different Modes of Impeachment Testimonial Capacity Motives Character Contradiction - P.I.S. - Question (intrinsic) - Other evidence (extrinsic) Contradiction with Extrinsic Evidence - Must do more than just contradict o Bear on issues o Additional impeachment 7-14 Illustrates impeachment by attack on testimonial capacities. 1. yes, it bears upon testimonial capacity. If he is skitz, it could bear upon his ability to observe, etc. mental illness is a matter that can be inquired into assuming that it speaks to the testimonial capabilities. 2. Yes, you can ask a standard have you taken any medication or other substances that will affect your ability to testify. Always allowed to ask about testimonial capacity. 3. Yes, you can ask.
7-15 Yes, this is an example of impeaching a witness by a prior inconsistent statement. If you are only offering it to show two different stories. If you needed it as a fact for the case, you would need the hearsay evidence. The limitation must be available to explain the inconsistency. Exception is with a declarant in hearsay. Refreshing the Witness Memory - Three Prong Approach o First: Permissible as long as you do not ask a leading question If they do not remember then ask a leading question, they will object, then ask the question again. 611 allows you yp ask a leading question to refresh the witness memory o Second Step: 612 You can expose the witness to anything that will refresh their memory The most common thing to use is the witness prior statement. Does not even have to be there own statement You do not actually read what you are using. You give it to them then ask if they remember. o Subpart 2 if you show the witness something to refresh the memory the court may order you to disclose it. Make sure you ask how would you feel if the judge ordered me to disclose it. o Third Step: If they still do not remember and meet the requirements of 805(5) you can offer the witness own prior statement shown to be accurate when made. 7-16 1. Yes. Probably the best thing that you can do. Show notes to opposing council, ask to approach, show the witness the notes, after he has seen the notes then ask him to recall. He cannot read the notes to the jury at that time. 2. No they do not because they are not offered in as evidence. 3. Yes, you can rely on anything as long as it is calculated to refresh memory 4. yes. 5. It is a past recollection and will be admitted. 7-17 1. Yes. It is intrinsic. Trying to contradict 2. No, cannot talk about an arrest. 3. Act of untruthfulnnes so yes. 4. yes, it goes to motive. 5. It depends if it was a felony it may be admissible but if it is misdemeanor it can only come in if it is a crime of dishonesty. Under revised 609, it depends if the crime was done with dishonesty. 6. probably not really a crime . Argumentative. Sustained. 7-18 1. may show bias or prejudice. This is the best argument.
2. Bears on credibility or character as a witness. This is fine. 405(a). Specific instances of conduct 3. Prior inconsistent statement. He is on the stand and has an opportunity to explain. 4. he can be asked about it but no extrinsic evidence. 7-19 1. Yes. It is an attempt contradict with an authoritative treatise. It is not offering the treatise. 2. Only if it is a felony. The court would you the standard if it is SUBSTANTIALLY more probative than prejudicial. 403. 3. Part about forged medical records are okay buy the part about being fired is not because it is a consequence. Extrinsic Evidence - Other evidence besides witness - Cannot bring in evidence that is purely collateral to the case. o If you are trying to contradict a witness, you can only use extrinsic evidence only if it does more than just contradict. If it just contradicts, it is collateral. So what else does it need to do? Either must 1) near on one of the other issues or 2) could add an additional ground for impeachment. Non collateral if: Bias A fact at issue Testimonial capacities Convictions of crime Reputation or opinion evidence about truthfulness or veracity of another witness. 7-20 1. It is intrinsic. It is a felony conviction. The ten years rule could bar it. 609 starts to run either at the day of confinement or day of conviction – Which ever is later. 2. This would be extrinsic evidence. It contradicts and impeachs him. Using this to prove that he was in fact convicted does two things: 1) shows that he is a convist 2) bears on his credibility. So possibly for my question. If they say something then you are stuck with it unless you can get it in under non-collateral extrinsic evidence. 3. Goes to testimonial capacity, contradicts, 4. Appears to be collateral. Does not bear on any issue in the case. 5. It does contradict him. Because this is extrinsic there needs to be an opportunity to explain. It may bear on testimonial capacity. Could bear on issues and capacity. 6. Yes, because it does more than just contradicts and bears upon his motive. 7-21 ***** 1. Lenny is Clark’s character witness. Yes. This is a specific act that speaks to Lenny’s capacity as a witness. 2. Proper 608(a). you can offer truthfulness of in form of reputation and opinion. Second Part Proper under 404(a)(1)
3. yes under 608(a). Second part is proper under 608(a). Once a witness character has been attacked, you can offer another witness. 7-23 Extrinsic evidence was admitted because it shows motive and it contradicts witness and bears upon motive. It has a high probative value even though it is prejudicial. 7-24 1. Yes under 608(a) 2. Yes to rehabilitate witness. It is important under 608(a) that you can only rehab a witness ONLY AFTER an attack has been made. 7-25 1. yes 2. error. Can’t Next time: 161-64.
7-26**** 1. Yes. If the witness testifies to something that should have come up earlier in an deposition, the thrust of the impeachment is that you are making this up. The omission, if it is significant, impeaches the witness 2. Yes. You bringing in extrinsic evidence to show that she had not been fired. You are also offering contradiction evidence for improper motive. 7-27 1. The objection is proper. You cannot vouch for a witness until the witness character has been attacked. Out of order. 2. Objection would be overruled. Prior consistent statement can rehabilitate a statement. She was attacked as to if she made up the statement and now she is testifying that she said the same thing before. Under hearsay it will be also offered to prove the truth of the matter asserted. Review Problems 7-28 1. Limitation on 609 goes back 10 years. If she served more than 6 years in jail it would be in the time limit. It is a problem that it is the prosecutor witness? Rget would want to take the sting out of it. She is anticipating an impeaching attack. There is no problem with this. 2. This is a specific act. This would violate 404 as impermissible character evidence. 3. Proper. Testing testimonial capacity and impeaching the witness. 4. Speaks to motive or bias. 5. Probably a misdemeanor. May be able to come if done under new rule in a untruthful manor. If it is a crime that speaks to the truthfulness of the witness must come in; the judge has no discretion. 6. This seems to be a felony. For a felony there are two standards (609). If it is the defendant then it has to be more probative than prejudicial and if it is just a witness it must substantially outweigh the danger of unfair prejudice under 403. Probably admit this one.
7. Irrelevant. She is testifying as an eye witness in a counterfeit case. Does not concern truthfulness 8. the focus of the attack is on the capacity. It is relevant to the powers to observe. The standard for relevancy is very low so it would probably come in. 9. This is a compound question. Cannot do it. Break the question up. It is permissible by contradiction. Last Part: 1) can under 608(a) 2) 7-29 1. This is impermissible character evidence. The prosecution cannot show bad character evidence for the defendant unless he opens the door. Look at 404(a). Cannot be used to show that he acted in conformity therewith 2. Bias and permissible 3. It is extrinsic and it goes to impeachment. It also establishes bias or motive.
7-30 1. No the indicted part but he can on the embezzlement part. Ask is it true that you have embezzled? Can’t ask about consequences. 7-30 1. Yes. It is intrinsic and it is contradicting. If the witness says no, can you offer the treatise into evidence? Maybe if it is non-collateral. It contradicts and shows the cause of death. 2. Contradiction and it is in the intrinsic form of contradiction. 3. We would have to do more than contradict because it is extrinsic. It goes to character also becomes it speaks to truthfulness or falsity. 7-31 1. a. permissible b. leading c. permissible d. compound and assumes facts not in evidence. Hearsay e. objection, asked and answered. 2. a. maybe argumentative, might be okay b. the way it is phrased seems unintelligible. c. irrelevant d. depends. Might be irrelevant but otherwise okay if Shantay was at issue 7-32 1. No. Could be a hostile witness maybe in which you could having gone through the right process. 2. Yes. Within scope of direct examination. 3. On scope of direct rule, you can always impeach and ask a question within scope of subject matter. (Two things) 7-33 1. not yet. You have not laid the foundation for past recollection or recording 2. can’t give him his notes but you can give him his notes then ask him if his memory is refreshed. 3. this is leading. You can do it selectively. 4. Yes. Permissible. You can use anything to refresh the defendants recollection. 5. Anything can be used. That does not mean that you will want to use. In the above question the opposing counsel would argue that they did not remember and were just reading the paper. 7-34** criminal D charged with crime of falsity and the witness is the accused. Her brother’s testimony is relevant for character. A witness credibility for truthfulness is admissible. But it is inadmissible as character evidence. Most judges would let in. What if she had another perjury conviction. This would be inadmissible character evidence but because it deals with falsity the judge SHALL admit it. ***** Look to the nature of crimes.
Witness Competency 601 o Those who are exempt are the judge and jury. o The last part is known as the dead man’s statute. We wont let the surviving party testify to it because they would take advantage. This rule varies today between jurisdiction. o Obligation to be truthful This is primary obligation. Even an insane delusional person can take the stand. They might latter be discredited. Young children are usually disqualified. Persoanl knowledge is a limitation o Two classes of people who are always disqualified Judges The judge presiding cannot testify to that trial. DO not have to object to this to bring it up on appeal. Does not prohibit the judge form commenting in the evidence Jurors Jurors cannot be a witness. Lawyers have to object but must do so outside presence of jury. o Statements made during deliberation (cannot testify to this) o Can testify that extraneous information was brought to them. Must be proper extraneous evidence. i.e. one juror going to accident site and reports to other jurors. Look for the jurors using something to influence the decision. People who’s memory has been hypnotically restored prior to trial.
11/6/06 Two times when someone is not competent to testify - The presiding judge in eth case at hand - Anyone on the jury during the case at hand. o The judge an call on a juror to testife outside the court if he thinks that there has been jury misconduct. This can happen during the trial Impeaching the juror verdict – Tranor Case - Jurors can testify about external matters but not issues that are internal. o i.e. Can’t testify that jurors flipped a coin. This is internal. If however a juror called someone else to get their opinion, then this is an external influence.
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Amendment to 606(b) o Excpetion 1: Whether extraneous prejduical information was improperly brought to the jury’s attention o Exception 2: Whether any outside influence was improperly brought to bear upon any juror o Exception 3: Whether there was a mistake in entering the verdict onto the verdict form
602 – Lack of Personal Knowledge - Before the witness can talk about an accident must testify that they were present and observed the accident. - Two objections may be proper o The answer could call for witness speculation. If the question needed an answer that the witness could not know it is speculation o Introduction of hearsay If the witness could not know without hearing it from someone else look for hearsay. Why was your witness so angry at his boss? How is the witness going to know that unless someone told him.
Hypnotically refreshed Testimony - Often after some traumatic event - Dangers o They are very suggestible and they think it is part of their memory o Witness may fill in the blank but not on knowledge but on assumption. o The federal rules do not really deal with this. The way to defeat it would be to say that they did not have personal knowledge and were hypnotized. Look at Rock v. Arkansas o Really lok at this in the case 8-1 Could she testify that Robin looked despondent? Yes. She is probably in a better position to testify about his mood. The problem is that she could not testify about the state of affairs. He could be despondent about any number of things. She is assuming something and speculation. 8-2 Yes, there is no absolute probation based on age. The competency requirements would need to show that the child understands. 8-3 1. no. If judge gets on the stand you do not even have to object. It is reserved for appeal. 2. federally no. 3 & 4> No rule sthat prohibits court personal from testifying. There are some courts who have felt that this should not happen. How do you resolve the issue? Judges should find another bailiff for that trial if they appear on the witness list. 5. yes but he is completely impeachable. 8-4 he is not supposed to be able to do that. You would want to object outside the presence of eth juror. Approach side bar. 8-5
The requirements for interpreters are set out in 604. he does not appear to be qualified. An interpreter has to be an expert. 8-6 There is nothing in the federal rules that says no. Issues come up with your ability to cross examine yourself. One thing that you do at the end of trial is vouch for the credibility of your witness, you do not want to vouch for your own credibility. If you are negotiating a plea deal you want to do a couple of things. You want a witness and you want to get it in writing. 8-7 It would depend on the dead man statute. The dead man statute would seal his lips in a state like Idaho but maybe not in another state. It would depend on the jurisdiction and the dead man statute. 8-8 there may be ground for impeachment but he is competent. 8-9 depends on the jurisdiction on whether it can be used. 8-10 he is impeachable but he can testify Review Problems 8-11 1. She must be able to tell the difference between truth and falsity 2. Yes but she may be impeachable by bias 3. Yes. The jury would consider whether she was competent. 8-12 depends on local rules on the court. As long as he is not criminal D, do not worry about Rock rule 8-13 no federal dead man statute. Depends on what type of jurisdiction.
Authentication
Requirement is based on relevancy. If you are going to offer a gun, it is only admissible if it relates to the case some how You must offer evidence that the piece of evidence does relate to the case. A reasonable jury could conclude that an item of evidence is what the parties claim it to be. Without some evidence that the item is what the person claims it to be, it cannot be relevant to the case. This can come up in testimonial evidence as well like a phone call. You need facts to authenticate. The two rules that deal with the issue are 901 and 902
901/902 - What 901B does is give you example of how to authenticate examples. We are expected to look at them o These are illustrations. Not an exclusive list. Be creative. You must meet standard of 901(a). - 902 o if something is self-authticating you do not need tio lay the foundation. It is deemed to be met. For example a deed that is notarized. This is self-authenticating. 13-1 1. show facts that the the D spoke with W. How do you lay the foundation? Reply doctrine. If it was an outgoing phone call then it is much easier. Show that the phone company registered that number to that person. What if it is an incoming call say that you recognized the persons voice. 2. get a handwriting expert and compare to other papaers written by that person. The jury can also make their onw comparison. It is not limited to hand-writing. 3. Slef authenticating 4. Same 5. Could ask the jury to compare. Someone who is famialr with the D could testify that that is him. The person who took the picture could say that it is him. 6. get an architect to confirm. If you just need to know things thare visible to naked eye, then anyone who knows the house can do it. If you need something like wires or plumbing then you might need an expert who worked on the house or could read designs.
11/8/06
x-ray - It is a photograph but it is not like other photographs where someone can easily recognize it. You need to call someone to say that the equipment and person operating the equipment was appropriate and working correctly. Have someone who can read x-ray. 13-2 1. ask the person who took the picture. Call anyone at the scene who was familiar with the scene or what was depicted in the photograph. 2. Call the person who wrote the statement 3. Call the physicians or maybe the custodian or records officer at the hospital. 4. Same 5. if you are offering to show that is a beer can in the back seat you only need the person who found it. Otherwise it is self-authenticating (S-A). 13-3 1. the contract, the telephone conversation and advertisement. Ben and Pam who signed the contract can autehticate the contract. The telephone conversations can be authenticated by Pam or Ben. Need to show with evidence (i.e. I recognized her voice; I dialed the number listed to her). Advertisements in news papers are S-A.
13-4 What are the concerns about admitting the tape? There is a chain of custody issue. Why do we care? The problem is that the witness can only authentic parts. Since she only heard bits and pieces. Is there anyway you can get it into evidence? Anyone who heard the entire conversation could verify the tape. You could get an expert to testify that the tape has not been tampered. This is an example where chain of custody is very important. You need to show that had custody if they made any modifications. If 5 people had the tape then call all 5. 13-5 the promissory notes have probably signed by someone or a witness could authenticate. Promissory notes could also be S-A if they meet the requirements. 13-6 All you might need to do is compare handwriting and let the jury decide. He could potentially do it also but it is very baised. Jury or expert would be the best way to go. 13-7 photographs are demonstrative evidence. The usual foundation is just the person is familiar with the area being depicted and it is a fair and accurate representation. The Best Evidence Rule - No rule that you have to use the best evidence. What this rule really is, is a anti-fraud statute. It requires the production of an original document to prove the contents of the documents. o It only applies when what you are trying to prove is the contents of a writing recording or photograph. o If you are suing on a contract, you cannot call someone to say what the contract says. You have to bring the contract. The best evidence of what the contract says is the contract. o You have to offer the recording to prove the content of the recording. - What is an original? o Includes any print of a photograph from the same negative o For a writing it is the writing itself or any counter part intended to have the same effect. (i.e. a document for a meeting in which several copies were produced) o Data, any printout printed to show data is an original - What is a duplicate? o Anything produced by the same matrix o Duplicates is not okay if it there is a genuine question or dispute about its authenticity o Or it would be unfair to do so. Usually refers to incomplete copies. - Exceptions o A duplicate can be used in the place of an original o What the rule prohibits is someone’s testimony about what the photograph depicted rather than offering it into evidence o Once the orginal is destroyed you do not have to offer a copy. You can testify to it. As long as it was destroyed in good faith. o If you are offering it against the person who has the original you do not need to offer it. o Not obtainable o If it is collateral n
Where a witness is testifying about what they observed and someone asks about what she said in police report.. You are not trying to prove what she said in the police report so you do not have to offer it for those purposes. o Public records – offer certified copies of the original o If there are voluminous writing you can offer a summary but originals have to be available o If other party has admitted contents of writing 13-8 1. They are not offering the content of the licnese. It can testify about his own personal knowledge. 2. no, there is no best evidence rule with who is a better witness 3. no, issue was not what was in the records. If a witness can testify to something based on personal knowledge, best evidence is not an issue. Lets say I am watching an intersection with a video camera. As I am watching throuogh the viewfinder I see wreck.. I can testify about what I saw. The mere fact that there is a video tape does not mean I have to testify what is on the video tape.
13-9 Should be admissible is it appears to be genuine and it is not unfair. Look at 1003. 13-10 She can offer a copy 13-11 The duplicate is admissible. If all he said was that he made the payment then that is okay also because it is based upon personal knowledge. 13-12 Can’t do it. Objection is right. You would need the receipt. 13-13 duplicate is usually admissible. In this case it needs to be an imperfect copy. 13-14 he can testify as to what he heard. Personal knowledge is the key. 13-15 It is not clear what is going on. If the witness I sgiven the photopgrah and he has no personal knowledge is violates the BER. If it was put for the purpose of authenticating the photograph then it is okay. 13-16 1. Sure, contents of tape are at issue. Yes this would be the best evidence. 2. He can bring a copy 3. Contents of tape is still at issue. Party admission. This is a causal comment at a party. Cannot be used for BER. Must be in writing or in formal testimony. 4. If it was not done in bad faith you can. Any form can be used to prove contents if it has been destroyed but not done in bad faith.
13-17 1. personal knowledge. No need for best evidence. Duffy Case - Duffy case involved a shirt that was found ina car that was stolen and being transferred in interstate commerce. The shirt is used to link the D to the car as the D’s shirt. What does this have to do with the BER? P instead of offering the shirt offered the testimony of a laundry mark “DUF”. Does agents testimony violate BER? Court said no, why? First they said it was collateral. It is true that it is not a suite on a contract or a statement on a tape. She does not think that it is collateral. The shirt is linking the D to the car. It is central. Second, officer could remember something that short. What about it being on three letters? She says this is not the focus. Even though the police officer probably would not forget it, this is not a pivotal factor. Third it was not a writing. They treated it as a chattel. 13-18 Review Problem 1. Not trying to prove content. He has personal knowledge. 2. The content of the writing is not at issue so it does not matter. 3. Yes because it is the content of the receipt. His only basis would be what is on the recipt and had not personal knowledge
11/10/06 At Common law lay persons were not allowed giving opinions about anything. This is not easy to do? Lay Opinion 1) Rationally Based on perceptions a. Key here is that it cannot be speculative. Cannot be a guess about what may have happened. 2) Helpful to the jury a. What they trying tio get across is the distinction between telling something that is helpful to the jury in finding its facts and facts that are actually helpful. i. Saying someone has brown hair is okay. Telling the jury that something caused the action or result would be usurping the jury. 3) Not based on scientific, technical or specialized knowledge. a. Limitation is to avoid unqualified people giving statements that they are unqualified to give.
Expert Opinion 1) Helpful to the jury 2) Based on sufficient facts or data 3) Product of reliable principals or methods 4) Based on reliable application of principles or methods 5) Relevant to issues in dispute.
Opinions Subjects 1) estimation of speed, distance, temperature a. a small child would probably not be able to judge a car’s speed. 2) identifications of persons or objects 3) a person’s appearance, including physical characteristics 4) the value of one’s property or services 5) odors and their identity 6) a persons emotional or mental state 7) short renditions of fact, comprising sensory impressions commonly recognized in opinion or form a. i.e. a person state of intoxication. 9-1 1. a lay person could tell if a tile was slippery. There is a little bit of a question here 9-2 this is speculation. When ever you get an “if then” type question it is probably speculative. She could testify that she never heard someone honk the horn. 9-3 1. Yes. If had been a formula race car that was going between 150-300. 2. A layer person could probably not tell. 3. if he was a person who had experience with high grade oil then maybe but probably not a lay person’s knowledge so you would need to have an expert. If the person knew the smell you could try and qualify him say like showing he work at an oil refinery. Ask “Is it rationally based on witness perceptions?” 4. a. This is fine. b. could say that he smelled like alcohol but not say that he smelled like had been drinking alcohol. Could say that his breath smelled like alcohol. c. this is fine d. you can say what he looked like but not the source like being tired. You can say he looked disoriented. E. not something that people can tell right off the bat. 9-4 1. This would be an opinion. 2. Most people know what a wink is. For exam a wink can be assertive conduct. This could be hearsay. Come in as party witness. 3. He could show that he smelled cologne. Would have to qualify that he knew the smell of the particular type of cologne. 9-5 He could testify that she slipped. The part about being there awhile could be troublesome. You would need to tell why you believed that the banana peel was on the floor for awhile (i.e. like it was brown or dirty, etc.) He could describe how the peel looked but not state the ultimate conclusion that the jury would find. He could say that the person fell like a sack of bricks. 9-6 1. The fact that she is her friend would give her credibility as a lay witness as to if a person appeared to be sane. We do not even allow experts to say this. Why a close friend? Someone who has sufficient exposure
has the reference to make such an opinion. We do not allow an expert to do the same because their opinion carries to much weight. 9-7 1. You would need to qualify this. You need sufficient familiarity could make an opinion.
Experts can testify about things they have no personal knowledge. You can give them hypos. 702 Expert Opinion 1) Helpful to the jury 2) Based on sufficient facts or data 3) Product of reliable principals or methods 4) Based on reliable application of principles or methods a. You need to have a reliable opiion based on reliable methods 5) Relevant to issues in dispute. a. Make sure to pay attention to relevancy 702 The judges acts as a gate keeper. He ahs the power to keep an expert off the stand unless these criteria are met. The way that most courts handle the qualifications of an expert if an expert credibility of witness will be questioned the judge will have a viodire outside of the trial. He will allow a direct examination and a cross followed by arguments. This is represented to the jury expect for arguments and examination. You need to convince jury that this person is reliable. Once you have established the experts testimony, you may move into the issue. Talks about the basis of opinions by expert. These can be based on facts that were learned before, during or on a hypothetical question. Experts are permitted to state opinions based on hypothetical questions The facts that an expert may rely upon may not be admissible like hearsay evidence. This does not invalidate their opinion. o When you are asking an expert to state basis for his opinion should they be able to state inadmissible hearsay or other inadmissible evidence? Modern trend says no. Only disclsoed if probative value of the evidence substantially outweighs the harm of putting the evidence in front of the jury. o
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704 Now appropriate for experts to state to the jury based on their examination the cause or conclusions (i.e. X caused the accident). 2 limitations
o 1) cannot testify that a party did or did not have requisite mental state. D had the specific intent to kill X. Can’t do this. o 2) not okay for doctor to say that someone was legally insane. There is a difference between legally insane and medially insane. You can say that the person did not know right from wrong. 705 This addresses procedural for going through expert credentials. This allows you to go right to expert opinion. You do want to go through the credentials just to establish a trust with the jury but you can ask immediately if they have an opinion. After he states that opinion you can go through procedures to get to establish credibility as an expert.
706 Allows for court appointed experts o Two types One is an expert appointed by the court because the D cannot afford one. Usually this happens where D is trying to use the defense of insanity for a criminal indigent D Second is when a court appoints its own expert. She thinks this has a chilling effect on a partying finding some whacko expert to fit their story.
9-8 1. Yes this gives you some idea of witness level of expertise 2. Same, tells about credentials 3. very useful because it shows that 17 courts have qualified as an expert. Tells that his interest is more for a P. 4. Yes, education is an important factor 5. No. that does not bear upon expertise. 6. Nope, same 9-9 Will not keep him off the stand. Can be used to discredit someone but is only one factor. He may not even need education. The other problem is whether this will be helpful to the jury. A lay person could do this.
Duabert Case – Judge has to decide whether novel scientific principals are reliable. The issue is whether the reliance upon a particular method is reasonable. It allows novel scientific principals to be used sooner. Sceientif Evidence Criteria 1) has the technique been tested 2) Has it been published or reviewed a. If yes, it has been critiqued and reviewed 3) Error rate 4) General Acceptance by experts in field a. This is not the end all but merely one factor.
9-15 It is a little vague. If it was based on a photograoh then yes. What if it was not one a picture? This becomes a different situation. Would need to look at circumstances of expertise and situation. Ask could a lay person do this. 9-16 IS this the right type of doctor to make such an opinion. This would need to be resolved. 9-17 Jury should be able to decide this on their own. The judge should rule that the expert is not helpful to the jury. 9-18 Doctor cannot testify about his mental disease or symptoms but not about insanity. 9-19 the jury might be able to tell on their own. 9-20 She can giver her opinion but not as an expert. It would be as a lay witness. You can testify about value of losses, value of property, value of services, etc. 9-21 In a situation like this the judge would explain the legal standard. Here it appears that the judge is failing to do so and allowing a witness to do it. 9-22 There may be a question as to the reliability. Is there a problem with the opinion. The other problem is that it is very misleading a prejudicial. 9-23 nothing in the rule that disqualies this person 9-24 He has a lot of personal experience. He could be a little bias, which could impeach his credibility. You would need to show that he has been there a long time. If he has only been serving 3 months of a life sentence it is not sufficient to be an expert. There also must be relevancy. 9-25 1. No, prohibition under 704 that expert cannot testify that D had intent required. 2. Yes. 3. 9-26
1. This is the procedure that you use for a foreign jurisdiction. Cannot use a person to explain U.S. law because that is the judges job. 9-27 so long as other experts in the field would rely on this it is okay for the court to rely on this. Expert can base her opinion on inadmissible hearsay. 9-28 1. overruled. Never has to provide a basis 2. overruled. They can speculate and be given hypos 3. party overruled. Expert can rely on hearsay but there is a question if he can show the hearsay. This would be admissible as public or business records. 4
11/15/06 Law on Privileges - We are keeping relevant probative evidence out because we feel that there is some policy that is more important than the just determination of the case. Marital Testimonial Federal: criminal only States Vary Only during marriage Holder: witness spouse Policy: protect marriage Exceptions Spousal Confidential Communications Any case Survives marriage but communication must be during marriage Holder: Either or both spouse Policy: Foster communication between spouses Exceptions.
Rule 501 Evidence code that codifies the common law, but when it comes to privileges they are just leaving the common law. So federal common law is the source of the privileges Federal common law is not always completely consistent Privileges are always evolving. Privileges that are commonly recognized in federal courts Attorney client privilege is recognized everywhere.
Marriage privilege Spousal communication Psycho therapist National Security Self incrimination
Three ways that privilege can operate They say that you cannot call me. Just calling is a mistrial. Prevents eliciting testimony. Shielding the disclosure of information o Requirements before it can attach Communication must be between parties in a legally protected relationship. There must be a communication between the holder of the privilege and the person whom the communication is made. The holder is the person who is giving aid. Strictly applied – must be made in a confidential setting. o If these are met the holder of the privilege can assert the privilege on their own behalf or the person who the communication is to should assert it (i.e. like the lawyer). o If you are defending a witness or a deposition and someone asks a question that would require the disclosure of privileged information, you must object before the witness answers the question. Once the answer is out, it is no longer confidential. Documents Request o If you miss a document and one slips through it is deemed waive. This is a split decision. Some courts will say that it is not waived.
Marital Privileges - Can block disclosure of certain communications - Can block testimony entirely - In federal court it is limited to criminal cases o In CA it is not limited by this. - No long-term boyfriends. Must be a legal marriage. - Communication must be between a legally binding marriage (between “I do” and “I divorce”) - Trammel Case o Only witness spouse has the privilege of marriage o Both spouses hold the confidential communication privileged. - Exceptions o Joint Participant exception – where people are joint participants they can be forced to testify. o Where there is an allege act of violence against the spouse or child of the spouse o Where there is a future crime or future fraud. This is true of the attorney client privilege. 12-1 1. Who can assert MP? Only bonnie because she is the witness. It can come in if she is willing to testify. The SCC does not because it was before they were married.
2. Only applies to communications and not observations. Does not prevent as to matters observed by the spouse. If it was a non-verbal assertion then maybe that would count (B) not if she want to testify. 3. he blows it because he tells is secretary. It is hearsay but it is a party admission. 4. No he can assert the privilege on her behalf. 5. No this is an exception because it is spousal abuse. Assuming the exceptions do not apply what then? He can’t keep her from testifying. There also is no communication. 6. Depends is she is involved in the crime.
11/17/06
Next Wednesday: Review session Attorney Client Privilege Best known privilege. Protects against disclosure against confidential communication between client and attorney. o Usually just entails the clients disclosures but sometimes the lawyers as well o It is the clients privilege to hold or waive. The attorney must assert the privilege on the clients behalf unless it is waived. A Client is someone who seeks legal services. No pay requirement. Does not matter if after the communication that client decides not to hire a lawyer as long as the communication is for seeking legal services. o Look fro someone seeking legal representation Who is an attorney? A member of the bar or someone the client reasonably believes to be a member of the bar. o A lawyer sometimes does other things besides law like real estate deals or taxes; the attorney client privilege only extends to legal services. o An off hand question at a cocktail party is not a confidential communication for a couple reasons: Getting legal advice from a friend is seeking legal services Second problem was that it was made at a cocktail party. Communications are only privilege if they are made confidential. Not everything is made to be kept confidential like someone’s name o You can be asked to identify your client. Limited exception: Last Link exception which would permit the clients name to be kept confidential. In the situation where the client’s name is the last link in an investigation some court will permit the non-disclosure of the clients name. Disclosure to anyone beyond the confidential circle kills confidentiality. The circle would include communications to those individuals who assist in legal services. Waiver o Holder of privilege can waive it. Attorney cannot. If any attorney discloses information without authorization, some courts hold that this is not a waiver. It does let the cat out of the bag. There are some cases that will count this as waiver as a negligent authorization.
Policy: without a privilege people would be reluctant to be open and honest with their lawyers. Or they will be afraid to speak to an attorney and unrepresented people tend to not get a fair hearing. Exceptions o Communications for the purpose of committing a future crime or fraud. o What do you do if a client says that he has a friend who will commit perjury to get them off, you should withdraw. What if he does this on the stand? You may be under a duty to disclose to a court. What if you withdraw and you are called to the stand to testify about the your past clients disclosure for perjury? You are relived of the obligation because it is a future crime. Physical Evidence is not protected. If you posses material possession about a case that you client has given to you, you are obligated to turn it over. o Permitted to keep it for a reasonable amount of time to examine it. Do you need to disclose where you got the evidence? No because turning the evidence over is a nonverbal communication. You may have to disclose where the evidence was found if you take it from location.
12-2 1. No. This is protected. 2. If she reasonably believed that he had passed the bar and was a lawyer it is still protected. 3. The part about the real estate would not be protected. 4. She is still protected. Does not matter who pays for it. 5. the attorney client privilege survives the relationship. 12-3 1. She does not have to say where she go the knife but she needs to give the knife over. 2. This is not privileged information. 3. This is work product. Do not have to. 4. outside of privilege 5. yes 6. this violates the attorney’s duty; not privleged 12-4 1. yes. Tell them to stop or withdraw herself. If it took place in a crowded room it might not qualify for confidential. 2. No because Ned is the holder. 3. Future crime. New Rule by Upjohn, case by case determination to see if communication is necessary for rendering legal services to the corporation. 12-5 it depends if the technician was for legal services. Was the communication necessary for the corporation rendering legal services. 12-6
Shareholders are the owners. Are they entitled to information that would otherwise be privileged? Shareholders may have a right upon a showing of good-faith in seeking the information to obtain disclosure of confidential information. No more definitive ruling than that. Psychotherapist Patietnt Priv. - Extends - Must be for the purpose of obtaining medical treatment. - Exist in order for the paiteint to be open and honest with their doctor. 12-8 It can be waived if the party holding the privilege raises a defense based on mental illness. So here it would be waived. 12-9 1. 2. if she is not necessary her presence destroys the privilege 12-10 not privileged.
11/20/06
Physician Patient Privilege - If person puts his condition into controversy then the privilege is waived.
12-11 Yes, this is an illustration of one of the exceptions which is the exception where doctor is asked to treat gunshot wounds. Gun shot wounds are not protected. 12-12 Generally speaking the presence of a third party will destroy the privilege unless the party is necessary to the treatment. Rule 201 1) Generally Known in territorial jurisdiction of court 2) Capable of ready ascertainable from sources beyond question. Judicial Notice - Judge tells the jury to accept something as fact - Presumption are different, they deal with evidence that is available or not available to one party. - Only applies to adjudicative facts that bear on the controversy.
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o No legislative facts – these are facts that people tend to take into consideration to decide what to do. i.e. When kids watch violent movies they model the behavior. They deal with policy issues but you cannot take the premises that kids will be violent if they watch violent movies. Adjudicative facts bear directly on the parties to the litigation. Where a court does take judicial notice of fact it has the following effect: o In a CIVIL CASE – a judicially notice fact the jury must accept as proof. It has conclusive effect. Because it has conclusive effect no one can offer counter proof. o In a CRIMINAL CASE – the jury will be instructed that it “may but not required to accept the judicially noticed fact”. The reason for the non-conclusive language is that under the 6th Amend., defendants in a criminal case have the right to a jury deciding their case. The judicial notice can be taken at any time during the proceeding. Under the rules, the court can take JN on the first time on appeal in civil cases. You cannot ask a criminal court on appeal to take JN that was not taken at trial. 201(b) o must be generally known or capable of accurate and ascertainable information. Policy: efficiency 201(c) o gives the court discretion to JN a fact 201(d) o court shall take JN if a party requests it and supplies the necessary proof. o If there is a signifcant dispute, and the other party wants to offer counter evidence, then it probably is not one that is JN.
14-2 Yes. Easily shown. 14-3 This is a legislative fact. No JN. 14-4 No there are a lot of factors that tell if it is light or dark.. YOU can take JN if there was street lights or a record of when the sun went down, etc. From that the jury can infer if it was dark. 14-5 Yes, it is binding and it is what it is. Courts will take JN of domestic law on federal and state levels. Generally, courts will not take JN of municipal ordinances. Foreign law must also be pled and proved. Usually it Is not left to the jury and the judge can decide what the foreign law is. 14-6 1. Yes, it is likely to be likely ascertainable. 2. If you can find it in a source that is beyond question then yes. 3. Same things
14-7 14-8 no, cannot be based on the judges own personal knowledge. It does not mean what the judges knows. 14-9 The court should not take Jn because this type of law needs to be pled and proved. There are facts within maritime law that do not i.e. a particular court is within a jurisdiction. 14-10 1. Yes 2. Yes 3. maybe, might depend on context. This was from a case involving the NFL and it was JN 4. Yes 5. Yes 6. Yes 7. No 8. Yes 14-11 1. The problem is with the word knitting. Maybe 2. Yes 3. Yes, JN 4. Improper if not based on facts but experience.
11/27/06 Look at 2006 Spring. o Conclusive presumption – it is a rule of law o i.e. In eth Coal Minors Act a cola minor who is diagnosed with black lung disease is conclusively presumed to be disabled. o Permissive Presumption o It is not really a presumption in the since of a rebutable presumption. It is more on an inference. i.e. the pavement is wet. A permissive presumption is something that jury can draw but need not draw as opposed to them must finding something as in a conclusive presumption. o Rebuttable Presumption o We have developed a procedure, where we will shift a burden to show evidence. Look at the bailee presumption. There is a RP that if you turn over goods to a baliee and the goods are damaged when you get them back the presumption is that the damage is due to the bailee negligence. The P proves the basic facts that the car was undamaged when left and returned damaged. That gives rise to the presumed fact that the bailee was negligent. The reason for this presumption is because when someone
turns their car over to someone else they are not in a very good position to show what happened. If the bailee does not offer counter evidence, the effect of a RP is that the jury must find the presumed fact in other words, the bailee caused the damage. What happens when someone does offer counter evidence? Like the tree trimmer did it. There are two views what happens next. First, the Bursting Bubble Theory – any credible evidence offer to rebut the presumed fact, burst the presumption. Adopted by the federal rules of evidence. P will have to find other evidence Second, the presumed fact does not vanish from the case it remains in the case and the jury weighs the presumed fact against the evidence that is offered to counter the presumed fact. The D has to do more than just offer some evidence. The D would have to offer enough evidence in order to meet the burden or persuasion.
14-12 1. Classic example of why we need presumption. Basic facts are that he mailed, property stamped and had proper address, it gives rise to RP. The company now would have the burden of showing that they did nor did not receive the letter. 2 14-13 1. SA would have to show that the X on the will is mutilation. If is a mulitaded then the presumption is that the will is revoked. 2. They would have to offer some evidence that it was not revoked. Maybe testimony or other writing. The basic facts was that the will was mutilated and they would have to rebut that it was revoked. 3.4. the basic fact was that the will was mutilated and the presumed facts was that the will was revoked. 5. If the burden of persuasion shifts the children would have to produce enough evidence by a preponderance that would prove that the will was not revoked. 14-14 1. the jury must find that the child was the child of the husband unless rebutted. 2. They were married when the child was born. 3. get up on the stand that the child was not his. He did not have sex with her, show a test. 14-15 1. Oreo will win in the absence of any evidence. 2. Does buried mean that it is revoked. Could be an issue here. Still will be a jury issue. 14-16 1. Offer any evidence that he was capable of doing it. 2. State always must prove case beyond reasonable doubt. 3. Cannot overcome a conclusive presumption. 4. The jury instruction for permissive instruction is that the jury may or may not conclude that the child is capable of committing the crime. 14-17
1. It is a criminal case you cannot have a rebuttal presumption against the D. State has sole burden. You could do it as a permissive presumption. It is only constitutional if the jury is instructed that they may but need not find for the RP.
11/29/06
14-18 Presumption rule in a criminal case cannot have mandatory against a D but you can have it against the government. Insanity defense. 1. Classic bursting bubble presumption. Any evidence that the D is inane will burst the bubble. P bears the burden of not producing evidence but persuading the jury beyond a reasonable doubt. 2. Never shifts. If D offer any evidence that he is insance the presumption of inansity drops out and so now the P who has always had the burden of persuasion myst oofer enough evidence from which a reasonable jury could find beyond a reasonable doubt that the D is sane. 14-19 1. Issue as to if basic facts have been established. James must prove that the car was left in good condition and did not have any damage. In that situation the jury would decide whether they believe that the car was damaged or undamaged. If the jury decides the car was not damaged when brought in the presumption arises. If the only defense by the D is that it was already damaged and the jury has already decided that it was not damaged the P wins. 3. If goes to the jury and they decide that it was damaged when brought in then James will lose. 14-20 1. If there is no counter evidence then the presumption exists. If no counter evidence is offered, the Jenny would win. 2. If the presumption arises and company offers evidence that letter was not received, under federal rules the presumption is gone. Jenny would have to come up with evidence that they did receive the letter. 3. Depedns on what they decide. If they decide that it had not been received, company wins. 14-21 The judge can instruct the jury that it MAY INFER that everyone in the room was in constructive possession of the gun. In criminal cases, Rebuttable presumptions against the D become permissive. If the judge uses them as permissive it is fine. If she uses them as mandatory then it is constitutional defective. 14-22 1. She has to get on the stand and say that it is not her car. Any evidence bursts the bubble. If you are in jurisdiction that does not follow bursting bubble theory, Emma would have to offer enough evidence that the jury could conclude by a preponderance of evidence that she did not own the car. 2.
Eam Tips
Relevancy o You always need to discuss it. o She wants to explain how the particular piece of evidence proves something Foundation o If they are testifying about what they saw you need to show they had personal knowledge. If they are talking about a contract you need to show how it would be authenticated. Authenticate the evidence. If you are talking about a telephone call, you need to show that the new the person on the other end maybe by their voice. Federal Issues (Most points) o Issues such as hearsay, impeachment, character evidence, jurors or judges testifying, witness comp, presumption. Conclusion (ding one point for not coming to a conclusion)
Re-read the rules the night before (408, 412-415 are ridiculous rules) Question 1 on Exam 1) If that is the call of the question discuss each evidentiary item separately. a) How is the evidence relevant? Dr. Chu tends to link her death to murder rather than suicide. Wiping the sword clean makes it look like someone was covering their tracks b) As an expert witness they need to be qualified. Since he has been quailifed as for. Path, he can testify as an expert and state opinion. c) Blow is within his expertise. d) Opinion about bruise seems like something he would be likely to say. e) The problem comes with his report from crime scene technician. He is a pathologist not an investigator. Wiped clean was beyond expertise. He is repeating in court what a crime scene technician told him. It is hearsay. Will not be able to come in because it si not something he should be giving his opinion about. Look also at replacing the jury.
2) a) b) c) d) e) 3)
Relevancy, the violent temper is character evidence so he may have hit her. The vase shows violent behavior. The threat is a statement of intent. PK. Alexis saw and heard all of this. What she heard could be bad on her knowledge of Jeff and what she saw. Temper. Improper under 404(a). Door not open. Vase. Specific act. There does not appear to be a 404(b) issue. Threat. Come in as party admission, state of mind (future intent) i) Mention every possible way that it can come in.
Relevant. May show motive to kill her for leaving. PK. Recognize voice. If she was a good enough friend to stay with her she would be able to recognize her voice. Show facts or explain the foundation. c) Hearsay but admissible because of future intent but not party admission because she is dead.
a) b) 4)
Relevancy i) Depression. Maybe she committed suicide. ii) Hospital record, further might show suicide. b) PK i) Lay opinion about depression. He would probably be able to know since he is her wife. Maybe not to the point about be suicidal. ii) Record. Business record, including nurses notation. It is a copy so there is an authentication issue. BF is offering copy but he cannot offer it because he is not records custodian. c) Record i) Nurse notation. Would come in under business record. The statement is hearsay but it is statement for medical diagnosis. ii) Patients boyfriend. Statement for medical diagnosis. iii) Patient statement. Could possibly go to state of mind or future intent. 803 will let this in.
a) 5)
Relevant. Impeaching. Violent tendency. Untruthfulness. PK. Record are self authenticating. For conviction D ha snot opened the door. Standard since the probative value on his truthfulness is slight and the danger of unfair prejudice is signicant because it was a crime of violence THEN the danger of unfair prejudice outweighs the probative value. d) Smuggling. Will come in for sure. The court SHALL admit. It deals with truthfulness.
a) b) c)