Evidence Outline

Evidence Outline HEARSAY 1. Generally: a. R.802: provides that hearsay is inadmissible unless provided by these rules, the Supreme Court, or Acts of Congress b. Rational for excluding hearsay: Testimonial inferences made by a jury which are risks for hearsay evidence: i. perception: did the witness accurately perceive the events ii. memory: has the witness remembered the events accurately from that day to now iii. Narration: has the witness accurately narrated what he perceived and remembered iv. Sincerity: is the witness lying or subconsciously shading the truth? 1. These risks are always present with any witness testifying: a. but because a witness at trial is: i. under oath ii. subject to cross—expose weaknesses of the testimony iii. and the jury can observe the witness it protects against them 1. These are the testimonial safeguards 2. However with Hearsay those safeguards are not in place and these risks still exist 3. Best way to test these things is with Cross examination—it can expose weaknesses and reduce the impact of the testimony 4. We want to examine the witness who actually has the evidence so we can test the testimonial inferences 2. Defining Hearsay a. Elements  R. 801 i. Out of Court 1. Anything outside trial proceeding. ii. Statement 1. Assertion = something someone says or does in order to communicate a fact or opinion in the hope or expectation that it will be accepted as true 2. It can be an oral or written assertion a. This is distinguished form a command. 1 3. Nonverbal conduct can count if intended to be an assertion or convey message. 2 4. Silence is not hearsay unless the person was communicating something by being silent.3 5. Photos, films, video tapes: these are not statements if taken at the actual event, but if they are taken to reconstruct the events than they are statements and can be hearsay iii. Made by the Declarant 1. Must be a human being; animals do not count iv. Offered for the truth of the matter asserted 1 2 ―Open your book‖ is not an assertion  no hearsay. Nodding your head yes is a statement; limping to the sideline is not meant as a statement but a reaction to pain so this most likely is not hearsay. 3 Ask if there was a duty to speak or it would have been reasonable to speak. 1. 2 Steps: 4 a. Step 1: What is it trying to prove? b. Step 2: Does it matter if it was true or un-true? b. Uses of Out of Court Hearsay i. State of mind 1. This can be for the hearer or speaker. 2. i.e. ―I am the pope‖ ii. Impeachment 1. If there is a prior inconsistent statement, it could be offered to show falsity or truth or to discredit the witness. iii. Res gestae 1. If the person is adopting the statement of someone else then you can offer the statement to explain the adoption. iv. Operative Facts/Verbal Acts/Independent Significant 1. 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. 2. Words accompanying the transfer of a things that limit the nature of the giving or define it are operative facts. v. Circumstantial evidence of memory/belief 1. 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. c. Statements that are not Hearsay: 801(d) i. Prior Statement by a witness 801(d)1\ 1. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement and the statement is: a. 801(d)(1)(a)  inconsistent with the declarant’s testimony and was given under oath at trial, hearing or other proceeding OR i. Key: Look for adversarial pleading (an under oath police interrogation will not count because it is one sided) ii. Inconsistent statement does not have to be polar opposite. 1. Look for significant variation. b. 801(d)(1)(b)  consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrications or improper influence or motive OR; i. Prior statement does not need to be under oath ii. Must rebut the charge of fabrication or improper motive. iii. Key: Look for adversarial pleading (an under oath police interrogation will not count because it is one sided) c. 801(d)(1)(c)  one of identification of a person made after perceiving the person ii. Admission by a party-opponent: 801(d)(2) 5 4 The statement, ―The building is on fire‖ is hearsay under the elements if you are trying to prove that the building is on fire. If however you are trying to prove why the person jumped from the building. 1. The statement is offered against a party and is: 6 a. 801(d)(2)(a)  the party’s own statement in either an individual or a representative capacity OR i. Does not matter who D was talking to; if P can prove that D said it by calling up a W, no matter who W is, it can be admitted. b. 801(d)(2)(b)  a statement of which the party has manifested an adoption or belief in its truth OR i. i.e. ― You went through that light when it was red.‖ ―Yes I did‖ 1. This is an adoption. ii. Silence can be an adoption if there is a failure to contest 1. Ask if a reasonable person would have contested. 2. Requirements a. 1. Person had to hear statement or question b. 2. Must be statement that someone would refute c. 3. Person making statement or question had to be someone that would be taken seriously. d. 4. There had to be some impediment to the person who was silent i. i.e. Miranda would impede someone from responding. There will always be an issue when Miranda rights come in. c. 801(d)(2)(c)  a statement by a person authorized by the party to make a statement concerning the subject OR i. i.e. Lawyer, realtors, PR people, translators, etc. 7 d. 801(d)(2)(d)  a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship i. Two requirements: 1. Person was an employee or agent 2. Statement was within scope of employment ii. The statement does not need to be made to an outsider. e. 801(d)2(e)  a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. i. The CC has to be already in the plan. Must be ―during the course of the conspiracy. ii. Statement must be in furtherance of the conspiracy 1. No off hand remarks. 2. Arrest terminates the conspiracy (no post arrest statements) 3. Present Sense Impression: 803(1) a. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. 5 The policy behind these are that 1) we do not want to let a declarant keep his own words out by a hearsay exception and 2) if he said them we want him to explain them on the stand. 6 This where D says something and P is offering it in. 7 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). 4. Excited Utterance: 803(2) a. 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 b. Requires 1st hand knowledge c. Must be under stress or excitement of the event. d. Factors i. Age of declarant ii. Nature of event iii. Time between statements iv. Observations concerning the emotional state of the declarant. e. If it is a long period of time, look for existing emotional distress. 5. Then existing mental, emotional or physical condition: 803(3) a. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and health), BUT not including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the execution, revocation, id, or terms of the declarant's will i. Key: Must be made before person had time to reflect and consider. ii. Require 1st hand knowledge iii. Cannot go backwards or have belief or memory of facts (i.e. ―last week I felt sick‖) iv. Statement of Intent 1. A statement of future intent can be used to show that the speaker did something or that the speaker thought something but it cannot be used fror someone else. a. I.e. I am planning on going to Las Vegas with Jon i. Can be used to show that speaker was going to LV or he thought he was but not that Jon was there. 6. Statements for purposes of medical or treatment: 803(4) a. 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. b. Elements i. Purpose = must be for diagnoses for treatement ii. Must describe past or present symptoms, etc. iii. Must be pertinent to diagnoses or treatment. c. Policy: there is an interest in telling the truth d. We are not concerned with self diagnosis. 7. Recorded recollection: 803(5) a. 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) b. Elements i. memo or recording ii. the matter was once within witnesses knowledge iii. No present recollection iv. Made while fresh in W mind v. Accurate when made c. If you get past these requirement, you DO NOT get to show the evidence to the jury or the courtroom; only the witness 8. Business Records Exception: 803(6) a. Elements i. Business record ii. Made at or near time iii. By or from a person with knowledge 1. 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. iv. Of regular conducted business activity AND regular practice to make record 1. Type of record that works is type of record that business needs to stay in business. v. Person familiar with recording or keeping 1. you just have to show they are familiar with records. vi. Unless not trustworthy b. 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). 9. Public Record Exception: 803(8) a. Elements  i. Record of Agency activity (every level of government) 8 1. 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). ii. Matters Observed by employees of government agency. 1. Pursuant to duty 2. Duty to report 3. Law enforcement limitations in criminal cases a. i.e. police report if manslaughter case is not allowed. (Exception to the exception). iii. Evaluative Reports9 (This is the part that CA would no follow) 1. Investigation pursuant to legal authority (Unless not trustworthy) a. i.e. alien is deportable. b. What is a factual finding: "not only objectively verifiable factual conclusions, but also diagnoses, opinions, and reports that state conclusions as to cause, fault, blame (unless there is come indication they are not trustworthy). c. Only used in civil actions and cases against the Government in criminal matters. d. Trustworthiness Factors: i. Qualifications of person doing the investigation. ii. Is there support for the conclusion 8 This is for a public entity. A private entity cannot come inunder this and a public entity cannot come in under the business records exception. 9 This section can only be used in a civil case or a case against the government. e. Usually when you need an expert it is under this section. 2. Criminal limitations a. Only against government. b. CA Does not allow for factual findings; limits to conditions, events or acts (more observations). 10. Absence of public Records or entry: 803(10) a. To prove the absence of something, you can bring in records that, if evidence existed, would show in there of. i. i.e. shipment tracker never showing article being shipped. Can bring in to show never shipped. 11. Records of religious organizations: 803 (11) a. Elements i. Statements of births marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts or personal or family history, ii. contained in a regularly kept record of a religious organization. b. Notes: i. There will be some overlap with business record exception. ii. Source of information does not need to be a member of the religious organization. (Broader than Business exception) 10 12. Marriage, baptismal, and similar certificates: 803(12) a. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. 13. Family Records: 803(13) a. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. 14. Records in documents affecting an interest in property: 803(14) a. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. 15. Statements in Documents affecting an interest in property: 803(15) a. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. 16. Statements in Ancient Documents: 803(16) a. Statements in a document in existence twenty years or more the authenticity of which is established. i. i.e. newspaper from 1956 works. Letters you would need to prove that they are old. ii. CA  Not ancient in CA until you are 30. 17. Market reports, commercial publications: 803 (17)* 10 i.e. Parents at a baptism would be not be allowed under Business records but would at this. a. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. i. Telephone book. Can prove number and address. 18. Learned treatises: 803(18)* a. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. i. Can ONLY be used in conjunction with an expert witness. ii. Treaties has to be reliable in its field. 19. Reputation concerning personal or family history: 803(19) a. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. 20. Reputation concerning boundaries or general history: 803(20) a. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. i. Reputation must be prior to the fight over the land. 21. Reputation as to character: 803(21)** a. Reputation of a person's character among associates or in the community i. Used to explain why person did what he did. 1. This is not an out of court statement 2. It is also trying to explain that state of mind of the listener. ii. If offered to prove what people think 1. Could come under state of mind. iii. To prove type of person D is. 1. This is when you need this exception11 22. Judgment of previous conviction: 803(22) a. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but NOT upon a plea of nolo contendere), for a felony conviction. i. Cannot use judgment to prove something about someone other than the person accused. 23. Judgment as to personal, family, or general history or boundaries: 803(23) a. Judgment as proof of matters of personal, family or general history or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. 24. Declarant Unavailable: 804 a. 804(a)  What constitutes unavailable? (Must pass this before going on to part B: unavailability of the declarent's testimony not the declarant is important) (CA recognizes the same ones). i. Privileged by the court 1. This would be like the 5 th Amend, or spousal privilege. 11 You are trying to prove as fact that Ted is a violent person not that people think he is a violent person. 2. STEPS: You have to call the witness, ask the witness the question, then the witness has to invoke a privilege, court determines whether privilege applies. (This is for everyone except criminal defendant). 12 ii. Refusal to testify despite a court order to do so 1. You would probably be held in contempt here 2. STEPS: W must be called and asked a question, W refuses to answer, Court has to order W to testify under pain from contempt; if still refused --. W is unavailable. iii. Lack of memory and you testify to this 1. 104(a) issue as to whether it is really memory loss 2. STEPS: W must be called and questioned about absence of memory; Judge determines truthfulness iv. Not present or able to testify because of 1. death (ultimate unavailability) 2. existing physical illness or mental illness 3. infirmity v. Absence or no deposition 1. vi. NOTE: A D cannot procure his own unavailability. 1. D cannot say he will not go on the stand but wants to use his former testimony. b. 804(b)(1): Former testimony i. Elements 1. Must be unavailable. 2. Testimony or Deposition from prior proceeding a. must be under oath 3. Against same party with similar motive or opportunity OR against predecessor in interest with similar motive or opportunity. a. In a criminal case it must be the same party b. In a civil case it can be a different party as long as the current party is the successor in interest and there was an opportunity and similar motive. c. 804(b)(2): Statement under belief of impending death 13 i. (Elements) 1. D is unavailable 2. D believed that death was imminent 14 a. Does not have to die, only needs belief of death. b. Does not matter if they are wrong as long as they believe. 3. His statement was regarding the cause or circumstances of what he believed was his death 4. It can only be involved in a homicide or civil action. a. This exception does not exist in CA. d. 804(b)(3): Statement against interest i. Elements Court assumes that criminal D will invoke the 5th so they do not need to go through this process. We allow these because we do not expect someone to lie on their death bed. Additionally there are powerful physiological forces at work. A person is not going to make their last word a lie. 14 Main issue is how imminent does death have to be. It is not measured of hours and minutes but is measured in loss of hope. Look for a person who has given hope. 13 12 1. Declarant is unavailable 2. Statement against pecuniary or proprietary interest OR subjects D to civil or criminal liability a. Must be against interest at the time that it was made. 3. Reasonable person would not make the statement unless it was true a. Must look at the context. 15 b. In CA if it would result in social ridicule it could potentially come in. 4. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. a. How do you corroborate? i. Get other facts that corroborate the statement ii. Offer evidence showing that the declarant is reliable. ii. Differences between Party admission 1. (b)(3) requires that the declarant be absent; PA do not 2. (b)(3) does not require that statements against interest be made by parties or their agents; PA must have been 3. (b)(3) only includes statements against the declarant’s pecuniary, proprietary, civil or penal interests; no such limitation exist for PA. 4. Conclusory statements like ―it was my fault‖ are generally not admitted under (b)(3) but they are as a PA. 5. PA do not have a persona knowledge requirement but all these do. iii. Notes 1. Context is controlling. What would the D want more. e. 804(b)(4): Statement of personal or family history i. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared. 25. Hearsay Within Hearsay: 805 a. Hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. 16 i. Documents like hospital records are likely to have this situation involved. You need an exception that works for each level. b. CA is basically identical 26. Attacking and Supporting Credibility of Declarant: 806 a. Allows you to impeach the credibility of the declarant with anything that you could impeach the witness. 15 You must look at the context to see what is against a person’s interest. The context has to be judge at the time the statement was made not because of subsequent events. 16 Hypo: when I phoned my wife she said, ―Harold is yelling tht Evan ran over his dog.‖ This is an example of hearsay within hearsay. What Harold is saying is likely an excited utterance. And what the wife said is probably a present sense impression because she is describing what is happening now. 27. Residual: 807 a. An exception not specifically covered in 803 & 804, but having equivalent circumstantial GUARANTEES OF TRUSTWORTHINESS, is not excluded if the court determines: i. The statement is offered as evidence of material fact ii. The statement is more probative on the point for which it is offered than any other evidence AND iii. Purpose of the rule and interests of justice will be best served by admitting 1. must make it known to the adverse party sufficiently in advance so the adverse party has enough time to prepare b. Notice requirement – Last sentence of 807. Requires the name and address of the person who made the statement. If you don’t the opponent will ask for a reasonable continuance to investigate. 28. Confrontation Clause: 6th Amendment a. RULE: Out of court statements by witnesses that are testimonial are barred under the Confrontation Clause171819 UNLESS: the state can establish that i. Witness is unavailable AND ii. The defendants had a prior opportunity to cross-examine the witness20 1. REGARDLESS of whether such statements are deemed reliable by the court and hearsay exceptions are satisfied a. Cannot just leave this to the laws of evidence to filter in and out statements if we do so it would render the Confrontation Clause powerless b. Right is only extended to criminal defendants; not government or civil. c. Testimonial Hearsay i. The line is drawn between testomniny conducted for an investigation and testimony given for assistance or aid. ii. Testimonial statements are statement intended to use at trial. RELEVANCE CONT’D 1. Subsequent Remedial Measures: 407 a. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measure is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the 17 Confrontation clause provides that "in all criminal prosecutions, the accused shall enjoy the right… to be confronted by the witnesses against him" the right to cross examine the witness * issue discussed in Crawford: what is a witness against court could have read it narrowly to mean only those who actually testify at trail court could read it broad to include ANY statements made—all hearsay  this court chooses something in between 18 only time confrontation clause comes into play is if it is something being offered against the defendant—does not matter if it is being offered against the government 19 statements being offered for NON HEARSAY purposes do not implicate the Confrontation Clause cross examination does not affect these types of statements so their would be no help with the confrontation clause 20 i.e. Where there was tow trials and the witness dies before second trial. There was a chance to cross-examine OR a preliminary hearing because D attorney could be present. If no opportunity to cross examine, statements are inadmissible. exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controvered, or impeachment b. Not excluded if evidence is not to show culpability, liability or negligence i. i.e. can use to impeach. ii. Rational 1. We want people to fix things and we do not want to discourage them 2. Fixing something is not an admission. 2. Compromise and Offers to Compromise: 408 a. Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a value consideration in compromising or attempting to compromise a claim which was DISPUTED as to either validity or amount IS NOT admissible to prove liability or invalidity of the claim or its amount. Evidence of CONDUCT OR STATEMENTS made in compromise negotiations is likewise NOT admissible. This rule DOES NOT REQUIRE EXCLUDSION of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule does not require exclusion when the evidence is offered for another purpose… b. Generally i. Prohibits offers and acceptances to settle. ii. Prohibits statement made in compromise negotiations UNLESS you are negotiating with a government regulatory agency and offered in a criminal case. iii. OK: evidence is not excluded if it is not contained in subsection (i) then it is admissible 1. examples: impeachment by bias or delay. Obstruction of criminal investigation or prosecution 3. Payment of Medical and Similar Expenses: 409 a. Evidence of paying for someone’s medical expenses is not admissible to prove liability. i. We want good Samaritans. 4. Inadmissibility of Pleas, Plea Discussions and Related Statements: 410 a. Evidence if not admitted in a civil or criminal case of the following: i. A plea of guilty which was later withdrawn ii. A plea of nolo contendere iii. Any statement made in the course of any proceeding under Rule 11 of the Federal Rules of Criminal Procedure iv. Any statement made in the course of plea discussions with an attorney for the prosecution authority. v. Limitations 1. Cannot use for impeachment purposes 2. if the D does or says something to open the door, the prosecution can offer enough of the statement so as to make the defendant’s statement misleading. 3. D can waive this right. RELEVANCY REVISTED 1. 407 -- Subsequent Remedial Measures a. Excludes proof of subsequent remedial measures to prove fault that come after an injury or harmful event. i. Cannot be used to prove design defect or the need for a warning label. 2. 3. 4. 5. ii. Evidence will be admissible if used to show ownership or control; existence of duty; and feasibility of precautionary measures, if it is a matter in controversy. iii. Policy: 1. We do not want to discourage people from making things safer. 2. Fixing something is not an admission of fault. 408 – Compromise and Offers to Compromise a. Excludes conduct in civil settlement offers to prove liability or claim amount. Excludes offer, compromises reached and discussions leading up to the offer (with some limitations). i. Cannot use prior inconsistent statements made in settlement negotiations when offered to impeach. ii. *Make sure the amount is in dispute. If they are not arguing over the amount then this rule does not apply. iii. Limitations: 1. Cannot exclude evidence that would have otherwise been discoverable just because it was used in a settlement conference. 2. You can use evidence information used to reach settlement that are not related to liability or claim amount. 3. Does not pertain to statements made to a government agent in a criminal matter. 4. Does not exclude statements or conduct made in a civil suit negotiations with government regulatory agency. a. So if you admit something in a negotiations in a civil suit here, it can be brought in during a criminal trial. 5. Neither party can bring it in. Not limited to compromising party. 6. Cannot use for impeachment. iv. Permitted Uses 1. obstructing justice 2. negating a contention of undue delay 3. proving bias 409 – Payment of Medical and Similar Expenses a. Cannot use offers to pay or the paying of medical expenses to prove fault. 410 -- Inadmissibility of Pleas, Plea Discussions and Related Statements a. Evidence of the following is not admissible in any civil or criminal case against the defendant: i. A guilty plea that was later withdrawn ii. A plea of nolo contendre iii. Plea negotiations made in court that are later withdrawn iv. Statements made in plea negotiations 1. cannot be casual statements b. Exceptions: i. Can admit it if D introduces a part of the statement if the part can be misleading, then the prosecutor can admit the part that would make it not misleading i. If D is later charged with perjury c. In FRE cannot be used for impeachment unless D signs an agreement beforehand that any statements can be used to impeach them – The Supreme Court has allowed this waiver – not in the rule. 411 – Liability Insurance a. Evidence that a person was or was not insured is not admissible as to whether they were negligent or other wise acted wrongly. i. The rule does not require the exclusion against liability if offered for agency, bias, etc. CHARACTER AND HABIT EVIDENCE 1. Character Evidence Not Admissible to Prove Conduct; Exception; Other Crimes 2. 4 Ways that Character evidence may be used at trial a. Propensity Use (ONLY FOR CRIMINAL CASES) i. 404(a) -- Character Evidence Generally (ONLY FOR CRIMINAL CASES) 1. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity with a particular occasion 21 a. P can offer propensity evidence if D opens the door b. If D makes character claims about the victim, P can offer rebuttal character traits about the D. i. i.e. D says V is a violent person. P can say that D rather then V is the violent person. c. P can also offer character evidence of the victim to rebut evidence that he was the first aggressor in a HOMICDE CASE. d. Character trait being offered must be pertinent to the case i. i.e. in a murder case violence would be valid, perjury would not. e. Propensity evidence is governed by 405(a) i. Only allows opinion or reputation; never specific acts 1. You can use specific acts on cross examination a. 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 ii. 404(b) – Other Crimes, Wrongs, or Acts 1. Evidence of Other crimes, wrongs or acts is not admissible to prove character of a person in order to show action in conformity with 2. It may be used for other purposes not limited to: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident a. Could also be common scheme 3. Provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial or during trial of the general nature of any such evidence it intends to introduce at trial. 4. Doctrine of Chances – how likely is it that someone could have 3 wives die in the Jacuzzi? Need to show that lightening doesn’t strike twice – can’t be accidental that many times iii. 405 – Methods of Proving Character 21 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. 1. Reputation – involves witness laying foundation that they are in a position to be aware of the reputation of a person 2. Opinion – person has to establish that the have the knowledge to form an opinion (I have known this person for 14 years and they are a very violent person) 3. Specific Instances – specific instance of going to the cafeteria three times and didn’t pay for his lunch as proof of dishonesty. a. Cannot be used for propensity – it is just too remote b. Can only be used when character is actually an issue (see below) c. On cross you can inquire into specific issues. 4. Once the accused opens the door what can the prosecution do? 2 options a. Direct examine their own character witness— i. Can only use opinion and reputation b. Cross examine the accused character witness: i. Here you can use specific instances BUT you can only ask if they know about them and you are bound by the answer 1. You are not PROVING the instances 22 2. You are using them to test the: a. Credibility (how well do they really know this person) and b. Judgment of the character witness (they know and they are lying) ii. When bringing in these instances there must be a good faith belief that they happened and an ability to show the judge what you are basing the belief on. Need a basis to back up your good faith belief iii. Example: p3.14 p221: 1. She says I would never shoot anybody on direct… a. Viewed two ways i. She opened the door ii. She is acting as her own character witness 2. Prosecution can then say—you've shot other people haven't you a. This is using impeachment by prior inconsistant statements iv. 406 – Habit; Routine Practice 1. Habit or routine can be shown to prove that someone acted in accordance with that habit or routine. a. Must be response to particular stimulus b. Must distinguish between habit and character c. It if is varied then it is less likely to be probative b. The Character Itself is an issue i. Most of the time character is at issue is going to involve a civil case: 1. Criminal Seduction 22 "since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness's standard of opinion of the reputation of the defendant is being tested." 2. Entrapment - If entrapment D has to establish that D was not predisposed to committing the crime - This is a minority rule 3. Negligent entrustment 4. Defamation ii. What are the rules? 404 doesn’t deal with it at all – only in 405 (B) in cases in which character is an essential element of a charge, claim or defense, proof must also be made of their specific conduct 1. This would be like if X was suing Y for defamation or libel for being called a crook. Y can show evidence that X is a crook. iii. 404(b) – Other Crimes, Wrongs, or Acts 1. Evidence of Other crimes, wrongs or acts is not admissible to prove character of a person in order to show action in conformity with but may be used to prove something specific. 2. It may be used for other purposes not limited to: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident a. Could also be common scheme23 3. Provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial or during trial of the general nature of any such evidence it intends to introduce at trial. 4. *If there is a strong likelihood that the jury might misuse and its not particularly probative then the other side can try to exclude under 403, because of unfair prejudice. 5. Doctrine of Chances – how likely is it that someone could have 3 wives die in the Jacuzzi? Need to show that lightening doesn’t strike twice – can’t be accidental that many times iv. 412 – Sex Offense Case; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition 1. Evidence Generally inadmissible -- The following evidence is not admissible in any civil or criminal proceeding involving sexual misconduct: a. Evidence offered to prove that any alleged victim engaged in other sexual behavior b. Evidence offered to prove any alleged victim’s sexual predisposition 2. Exceptions: a. 412(b)(1)(a) -- Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of the semen, injury or other physical evidence. 24 b. 412(b)(1)(b) -- Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and i. This could be relevant for whether she did consent or whether the D had a reasonable belief that she consented. 23 This would be like offering the accused past robbery of a store, not for the fact that he would rob againt but for the fact that he robbed it in the same way or same MO. This shows a common scheme an identity. 24 I.e. D is accused of rape and wants to admit evidence that P had other sexual contact with another person at or near the time of the rape. c. 412(b)(1)(c) -- Evidence the exclusion of which would violate the constitutional rights of the defendant. i. Do not expect to use this exception once. 3. If D seeks to offer evidence under one of these exceptions then there is a procedure that has to be followed. This requires to D to: a. File a written motion 14 days before the trial identifying specific evidence he intends to offer b. If D does this then there is a hearing in chambers (closed, so the victim remains protected from public disclosure), but then if it is held admissible then it is admitted in open court 4. 412(b)92) – Civil Cases a. While still generally excludes evidence of victims prior sexual behavior, it is a little easier to get evidence in. The standard of admissibility is an inverse 403 standard. D has to show that probative value of the evidence substantially outweighs the danger of harm to any victim or party. i. If what you are going to offer is reputation evidence, civil cases allow this, but only if the reputation evidence has been first offered by the victim. v. 413 – Evidence of Similar Crimes in Sexual Assault Cases 1. In a CRIMINAL case for sexual assault or another sexual offense, evidence of past sexual offenses of the accused may be admitted. a. Does not require a conviction or arrest b. Policy: try an deter repeat offenders or put them in jail. vi. 414 – Evidence of Similar Crimes in Child Molestation Cases 1. In a CRIMINAL case for CHILD MOLESTATION, evidence of the accused prior offense of CM, may be admitted vii. 415 – Same at 414 but for Civil Cases. 1. Same as 414. Examination and Competency of Witness 1. Procedures a. Direct Examination: P asks questions, then opponent can do cross. i. Scope of cross needs to be limited to the direct exam, and things affecting the credibility of the witness. ii. Cannot ask leading questions except – 1. If it is necessary to develop the witness a. Usually done for timid young witnesses or people who are very forgetful b. Proper procedure is to ask non-leading questions first. 2. If the witness is hostile a. Must ask non-leading question and then ask to treat the witness as hostile. iii. What is a leading question? 1. It is a suggestive question. Look for a yes or no answer. 2. Preliminary questions that are leading are usually allowed a. i.e. ―You live in Malibu?‖ iv. Other Questions that are objectionable 1. Compound questions 2. Redundant b. Cross-Examination i. Cannot exceed scope of direct examination. [you have some room to work with but you must show that question relate to the subject matter of the direct] ii. You can use leading questions* 1. Court has permission to go beyond scope; they can grant permission 2. If you do go beyond scope you are treated like you are on direct examination so no leading questions* a. Policy: we do not want the witness to be on the stand multiple times. iii. Objection: you need to object or you loose you opportunity to appeal. c. 615 – Exclusion of Witness i. At request of party, witness shall be excluded so they cannot hear testimony of other witnesses. ii. Rule does not apply to: 1. The parties 2. Expert witness who need to hear testimony 2. Impeachment (4 ways to attack) a. Testimonial Capacity i. The three things you want to focus on are: 1. Ability of witness to recall 2. Ability of witness to communicate a. Mental illness, intoxication, age can all affect witness ability to communicate on the stand. 3. Ability of witness to perceive a. This could be something as small as a unwell lit room or the witness was not wearing his glasses. b. Motives i. Bias 1. 610 – Religious Beliefs or Opinions a. Evidence of beliefs or opinions of a witness on matters of religion is not admissible for purposes of showing that there credibility is impaired. i. You can show that a witness is an elder in the church with X. 2. i.e. witness is family ii. Prejudice 1. i.e. witness is enemy iii. Interest 1. i.e. having an interest in the outcome of the case. 2. 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 iv. Corruption c. Character i. Prior Convictions 1. 609 – Impeachment by Conviction of a Crime a. Felonies (two different standards) i. For Criminal Defendants  Admit felony only if the probative value is greater than the prejudice. This is hard to pass. ii. Anybody else  Admit the felony unless the probative value is substantially outweighed by unfair prejudice. This leans heavily towards admitting the evidence. 1. Subject to 403. b. Crimes of Dishonesty or Deceit i. Evidence of any crime, regardless of punishment, may be admitted if the elements of the crime required an act if dishonesty or false statement by the witness. 1. If the crime is not a deceitful crime but done in a deceitful way, then it can come in as well. c. Other admission requirements i. Evidence of conviction is not admissible if 10 years has passed since either: 1. the date of conviction or; 2. release of the witness from confinement imposed for that conviction, which ever is later. [[p[0 ii. Three Requirements 1. The interest of justice will be served 2. The probative value must be substantially outweigh the danger of unfair prejudice 3. Provide written notice in advance of trial iii. Cannot use conviction if: 1. There has been a pardon and not committed a subsequent felony. 2. Pardon based on innocence. 3. It is a juvenile conviction. a. Court can use juvenile conviction in a criminal case and the witness is not the accused. 4. *If a conviction is being appealed it can still be used. ii. Prior Acts 1. 608 – Evidence of Character and Conduct of Witness a. You can only bring in reputation of character evidence when in relates to truthfulness or untruthfulness. [ Allows you to introduce a separate witness] i. You can only use truthfulness when the witnesses truthfulness is attacked. 1. Use to rehabilitate. b. Specific Acts i. Two Times when you can bring up specific acts: 1. When you are asking the witness about his own truthful acts a. You are stuck with the answer he gives whether he lies or not. b. No extrinsic evidence 2. You can question the character witness if he knows about specific acts of another. ii. Limitations 1. Specific acts must relate to truthfulness or untruthfulness. 2. Only use evidence of truthfulness after it has been attacked. 3. NO extrinsic evidence is allowed (like calling up a witness to refute). 4. Cannot inquire about consequences of untruthful act. a. i.e. ―isn’t true that you lost your job because your boss found out that you lied on your mortgage application.‖ i. If you can show a different purpose, like motive, then you might be able to get it in. iii. Reputation or Opinion d. Inconsistencies i. Prior inconsistent statements 1. You can use them to impeach even if they are no offered for the TOMA. a. Allowed to sneak up on a witness [opposing counsel can request to see] 2. Use of extrinsic evidence [i.e. a transcript] the witness must have the opportunity to explain UNLESS: a. The statement was a party admission b. Where all evidence concerning the statement is hearsay. ii. Contradiction 1. Sometimes you can get the witness to agree that he was formally wrong. 2. You can also bring in someone else to contradict the evidence. a. Extrinsic evidence must do more than just contradict. i. It must also bear on the issues and have additional impeachment. iii. Refreshing the Witness Memory 1. Three Prong Approach a. First: Permissible as long as you do not ask a leading question i. If they do not remember then ask a leading question, they will object, then ask the question again. ii. 611 allows you yp ask a leading question to refresh the witness memory b. Second Step: 612 i. You can expose the witness to anything that will refresh their memory ii. The most common thing to use is the witness prior statement. iii. Does not even have to be there own statement iv. You do not actually read what you are using. You give it to them then ask if they remember. c. Subpart 2 i. if you show the witness something to refresh the memory the court may order you to disclose it. ii. Make sure you ask how would you feel if the judge ordered me to disclose it. d. Third Step: i. 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. e. Witness Competency i. Judge and Jury are always DQ. ii. iii. iv. v. 1. You do not have to object to the judge to bring up on appeal. 2. Lawyers must object but can do so outside or presence of the jury. a. Juror can be called to impeach a verdict after the trial is over – prohibits juror from testifying about the actual course of the deliberation. What is permitted is testimony concerning extraneous prejudicial information (outside influence brought to bear on the jury. If the person is capable of telling the truth and is willing to take an oath or affirmation to do so, that is all that matters in making the person competent to testify Dead Man Statutes – something that does not exist in the FRE because it doesn’t come up in federal cases. FRE specifically defer to the state rules if comes up in a diversity case. 1. Where death has sealed the lips of one party, the law seals the lips of the other. 2. This is so that no one can take advantage of the death of his adversary by lying about what they intended to do. 3. Some are pretty absolute, others permit some evidence to be given by the opposing party, assuming that there is some corroboration. Requirement of Personal Knowledge – FRE 602 – you can’t testify about something unless you have personal knowledge about what you are testifying. This often intersects a bit with the hearsay rule. Hypnotizing - Not very well understood but anything remotely suggestive can implant information into the persons memory. 1. No specific FR about this though 2. Rock v Arkansas - US Supreme Court a. Said that criminal defendants can admit hypnotic testimony, but it isn’t always admissible b. Was allowed in this case, but doesn’t always have to. Usually not all is excluded, but it depends on the state law. Authentication and Best Evidence 1. Authentication a. If you are going to offer a piece of evidence it must relate to the case. i. A reasonable jury could conclude that an item of evidence is what the parties claim it to be ii. Self authenticating evidence (i.e. a notarized deed) does not need to be established. 2. The Best Evidence Rule a. 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. i. It only applies when what you are trying to prove is the contents of a writing recording or photograph. ii. 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. iii. You have to offer the recording to prove the content of the recording. b. What is an original? i. Includes any print of a photograph from the same negative ii. 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) iii. Data, any printout printed to show data is an original c. What is a duplicate? i. Anything produced by the same matrix ii. Duplicates is not okay if it there is a genuine question or dispute about its authenticity iii. Or it would be unfair to do so. Usually refers to incomplete copies. d. Exceptions i. A duplicate can be used in the place of an original ii. What the rule prohibits is someone’s testimony about what the photograph depicted rather than offering it into evidence iii. 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. iv. If you are offering it against the person who has the original you do not need to offer it. v. Not obtainable vi. If it is collateral n vii. 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. viii. Public records – offer certified copies of the original ix. If there are voluminous writing you can offer a summary but originals have to be available x. If other party has admitted contents of writing Lay and Expert Opinion 1. Lay Opinion a. Rationally Based on perceptions i. Key here is that it cannot be speculative. Cannot be a guess about what may have happened. b. Helpful to the jury i. What they trying to get across is the distinction between telling something that is helpful to the jury in finding its facts and facts that are actually helpful. 1. Saying someone has brown hair is okay. Telling the jury that something caused the action or result would be usurping the jury. c. Not based on scientific, technical or specialized knowledge. i. Limitation is to avoid unqualified people giving statements that they are unqualified to give. 2. Expert Opinion a. Helpful to the jury b. Based on sufficient facts or data c. Product of reliable principals or methods d. Based on reliable application of principles or methods e. Relevant to issues in dispute. 2. Opinions Subjects a. estimation of speed, distance, temperature a small child would probably not be able to judge a car’s speed. identifications of persons or objects a person’s appearance, including physical characteristics the value of one’s property or services odors and their identity a persons emotional or mental state short renditions of fact, comprising sensory impressions commonly recognized in opinion or form i. i.e. a person state of intoxication. b. c. d. e. f. g. h.