Evidence Rudovsky – Fall 2005 Brian Ryckman I. INTRODUCTION TO EVIDENCE LAW A. Purpose of Evidentiary Rules – Five major reasons have been advanced… 1. Mistrust of Juries – Federal Rules insure the evidence which is presented to juries is reliable 2. Serve Substantive Policies Relating to the Matter Being Litigated – Rules should further the other rules and substantive policies relating to the trial (e.g. burden of proof, etc.) 3. Further Substantive Policies Unrelated to the Matter in Litigation – Rules must not affect other institutions or relationships (e.g. privilege and medical relationships) 4. Ensure Accurate Fact-finding 5. To Control the Scope and Duration of Trials – Must set limitations on the trial (scope and duration) and force attorneys to be efficient in how they go about litigating their cases B. The Federal Rules – Serving as a recent development in the law, in 1975, the Federal Rules of Evidence became effective after having been enacted by Congress. These Rules apply to all trials in federal courts, whether civil or criminal, and whether judge or jury. 1. Adoption by the States – Federal Rules of Evidence have adopted in one form or another by over four- fifths of the states. As of 2003, 42 states had adopted the Federal Rules as well as the military C. Evidentiary Procedure: Making & Responding to Objections 1. Making Objections – When inadmissible evidence is offered, it is not the judge’s responsibility to notice this and to exclude the evidence. Instead, the adversary system places upon the other party the responsibility of objecting to the evidence, and only after a timely object with the trial judge determine whether the evidence is admissible i) Waiver – Where the non-offending party does not make a timely objection, he will normally be held to have waived any claim on appeal that the evidence was wrongfully admitted 2. Timing – Objections must be timely. If the question alone makes it clear that the answer would be inadmissible, the objection should come before the witness answers. Sometimes, however, it is not feasible to object before the answer b/c the inadmissibility may not become apparent until after the answer is given. In these situations, an “after-objection” may be made following the witnesses answer. The lawyer moves to have the witness’ answer stricken, and to have the jury instructed that it should disregard this evidence. 3. General v. Specific Objections – Generally, the objection should be sufficiently specific for the judge and opposing counsel to know which of the many rules of evidence is being invoked. i) Federal Rules – FRE 103(a)(1) allows the appeals court to consider an evidentiary ruling only if the opponent made a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context.” ii) Effect of Specificity on Appeal – The handling of the ruling on appeal varies depending on whether the objection is specific or general… a. General Objections – A trial judge’s ruling on a general objection, whichever way the judge decides, will rarely be reversed on appeal. If the general objection was overruled, the objector will rarely win on appeal. Only if there is no purpose or theory of admissibility to support the trial judge’s ruling will it be overturned. Conversely, if the general objection was sustained, the appellate court will uphold the ruling unless there is no basis whatsoever. b. Specific Objections – If the objection is specific, there are three possibilities… i. Correct Ground Cited – If the objector has correctly pointed out a specific rule of exclusion to the judge, and the trial judge overrules the objection, the appellate court will reverse (unless the error is found to be harmless, see infra) ii. Wrong Ground; Objection Overruled – If the objector picks a specific ground which is erroneous and the objection is overruled, the objector will generally lose on appeal even if there was a different specific ground on which merited exclusion. Rationale is that it is the party’s duty to select the correct ground for objection. iii. Wrong Ground; Objection Sustained – If the objector picks a specific ground which is erroneous and the trial judge erroneously sustains the objection even though there is a different, unnamed, valid ground for the objection, courts are split – some sustain the trial judge’s ruling on the grounds that the result was correct even though the reason was wrong; others reverse on the theory that the proponent, had he known of the valid ground, could have offered different evidence to support the point or otherwise cure the defect. 4. Offer of Proof – If the trial judge sustains an objection, the proponent of the evidence must normally make an “offer of proof” if he wishes to be able to contend on appeal that the exclusion was reversible error. This offer of proof must normally consist of two parts: (1) a description of the evidence being proposed; and (2) an explanation of how that evidence relates to the case, if its relevance is not clear from the context. i) Federal Rules – The Federal Rules codify the requirement of an offer of proof. Under FRE 103(a)(2), an appellate court will be permitted to normally consider a ruling excluding evidence only if “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Furthermore, FRE 103(c) requires, where practicable, that the offer of proof be made outside of the jury’s hearing. 5. “Plain” v. “Harmless” Error – Not every error in the admission or exclusion of evidence will be grounds for reversal. Furthermore, not every error to which no objection (or incorrect objection) is made will lead to an affirmance. An error will not lead to a reversal if it is “harmless” and an unobjected error may nonetheless lead to a reversal if it is “plain” i) Reversible Error – Refers to the kind of mistake that probably did affect the judgment ii) Harmless Error – Refers to the kind of mistake that probably did not affect the judgment iii) Plain Error – Refers to the kind of error in the estimation of the reviewing court that warrants relief on appeal even though the appellant failed at trial to take the steps usually necessary to preserve its right D. “Funnel” Illustration of the Rules of Evidence – Broadly, courts will allow all relevant evidence that has some sort of probative worth. Secondly, some evidence will be weeded down by issues of prejudice, time, and convenience. Then, evidence must be presented in a form or manner that is subject to challenge and impeachment through cross-examination by opposing counsel (e.g. hearsay evidence; an attorney can’t cross- examine a witness who is not present or accessible). Next, courts favor facts being given by witnesses over opinions (exception for expert witnesses, however). Finally, some evidence will be disallowed because of policy reasons (e.g. privileged information). II. INTRODUCTION TO RELEVANCE A. Relevance Generally – The relevance rules restrict the trier of fact to considering only material that relates closely to the facts that matter in the case. 1. Rationale – Concept of relevancy saves time b/c it narrows the topics that parties need to develop in preparation for trial. It also increases the perceived legitimacy of trials by ensuring that outcomes will be based on data most people would believe have something to do with the controversy. 2. Two Aspects of Relevance… i) Probative Relationship – There must be a probative relationship between the piece of evidence and the factual proposition to which the evidence is addressed. That is, the evidence must make the factual proposition more or less likely that it would be without the evidence. ii) Materiality – The evidence must also be material. That is, there must be a link between the factual proposition which the evidence tends to establish and the substantive law. 3. FRE 401– Evidence is relevant if it has ANY tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. i) Evidence Almost Always Probative – Almost every piece of evidence that is offered at least slightly increases the probability of the existence of the fact to which it is directed; thus, evidence should rarely be excluded for lack of probative value. Alternatively, evidence is very frequently excluded b/c its probative value is outweighed by prejudice, etc. ii) Credibility Not a Factor for Relevance Determination – When the court measures probative value to determine whether it is outweighed by prejudicial effect, the court should not factor in doubts it may have about the credibility of the evidence. Rather, the test is what probative value the evidence would have been if believed. Choice of whether to believe an item of evidence should be left to the jury. 4. Relevance Determined by Judge – FRE 104(a) provides that preliminary questions concerning the admissibility of evidence shall be determined by the court. B. Direct v. Circumstantial Evidence – Direct evidence is evidence which, if believed, resolves a matter in issue. Circumstantial evidence is evidence which, even if believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed. 1. Direct Evidence is Never Irrelevant – When the evidence is direct, so long as it is offered to help establish a material issue, it can never be irrelevant. 2. Circumstantial Evidence – Circumstantial evidence, even if offered to prove a material fact, will nonetheless be found to be irrelevant if the evidence has no probative value, i.e., it does not affect the probability of the proposition to which it was directed. C. Conditional Relevance – Sometimes an item of evidence by itself will have no relevance to any issue in a trial but would be relevant if the trier of fact also had some other information. This type of evidence is said to have only “conditional relevance,” 1. FRE Rule 104(b) – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition Ex: In a murder trial the prosecution sought to show the D owned a red hat with a blue feather. If an eyewitness saw the murderer run from the scene wearing that kind of hat, then information about the D’s hat would be significant circumstantial evidence of guilt. However, the relevance of hat ownership is only apparent if there is testimony from the eyewitness. Thus, the relevance of the testimony about the D’s red hat comes from the context provided by the information of the eyewitness 2. Judge AND Jury Determine Relevancy – Under FRE 104(b), the Jury decides the relevancy of evidence subject to the Judge’s initial permission. That is, once that a judge decides to admit the evidence in the case (i.e. “sufficient to support a finding of the fulfillment of the condition”), the jury actually determines the evidences’ relevance and significance. Ex: In the red hat illustration, the jury will make a decision about the reliability of the eyewitness testimony. If it believes that the murderer really did wear a red hat w/ a blue feather, it will go on to consider whether it believes the testimony which stated that the D owns a hat like that. If the jury doe not believe that the eyewitness saw that kind of hat, it will pay no attention to the testimony it heard about the D’s hat. D. Limited Admissibility – Sometimes an item of evidence is relevant to one issue in a case and has no relationship at all to another issue. In that circumstance, the evidence passes the relevancy hurdle since no single piece of evidence is expected to be relevant to all the disputed issues of the case. 1. Forbidden Evidence is Problematic – It is more complicated when a single item of evidence is relevant to one issue in a case and is a type of evidence forbidden to be considered with respect to another issue. Ex: A rule prohibits admission of evidence of an alleged torfeasor’s subsequent remedial measures to prove negligence. Such remedial actions can be relevant and admissible, however, on other issues than the quality of defendant’s care. They could relate, for example, to issues of ownership or control of the site where the injury occurred. 2. Solution: Limiting Instructions – The choice that is typically made by judges, in lieu of keeping the evidence out entirely, it so let the material in and give the jury a cautionary “limiting instruction.” The limiting instruction would tell the jurors to consider the information only with respect to the topic for which it is legitimately admitted. III. PREJUDICE, CONFUSION, & WASTE OF TIME A. Exclusions of Relevant Evidence Generally – Even if evidence is relevant, the trial judge may exclude it on the basis of several largely discretionary countervailing considerations 1. FRE 403 – Although relevant, evidence MAY be excluded if its probative value is substantially outweighed by the danger of… i) unfair PREJUDICE, ii) CONFUSION of the issues, iii) or MISLEADING the jury, iv) or by considerations of undue DELAY, WASTE OF TIME, or needless presentation of CUMULATIVE evidence B. Unfair Prejudice – Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. 1. Compare Prejudice to Other Possible Evidence – When a court is making such a decision, it should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect and much less prejudicial value, the court should insist the other evidence be used. i) Stipulation to Past Convictions – When a prior criminal conviction is a necessary element to a charged offense, defendants will often seek to stipulate to the existence of the prior conviction to avoid a reading of the details of the prior offense. When such an alternative exists, it is improper to allow a reading. Old Chief v. United States – D is charged w/ the crime of possession of a fire arm while having a prior felony conviction, and also with the crime of assault with a deadly weapon. D offers to stipulate that he has a prior felony conviction. The trial judge instead allows prosecution to read prior judgment to the jury. The jury learns that the prior conviction was for aggravated assault. Held: Prior judgment had the same probative value as D’s proposed stipulation. On the other hand, the judgment itself posed a large danger of prejudice to D, b/c the risk that jury would reason that since D committed serious assault before, he was probably guilty of the presently-charged assault as well. Reversible error. 2. Gruesome Photographs – Where gruesome photos of human injuries, or of a corpse, are sought to be shown to a jury, they will be usually excluded if they are unnecessarily large or colorful. However, where the photos are necessary to convey to the jury the details of how the defendant brought about the victim’s death, the fact that the photos are gruesome, colorful, or greatly enlarged will not usually lead to exclusion. C. Confusion – Relevant evidence may be excluded if its probative value is outweighed by its tendency to confuse or mislead the jury, or unduly distract it from the main issues. Ex: Evidence that the accused has committed past crimes may not only be prejudicial (supra) but it may also distract the jury from the fact that there is only weak evidence that the accused was the person that did the act. D. Waste of Time – Evidence may also be excluded if it would be a waste of time. This is especially likely to be the case where the evidence is cumulative. Ex: I a case in which the accused is charged with having poisoned the descendent, presentation by either side of more than two or three witnesses all testifying as to the cause of death might be deemed to be needlessly cumulative and therefore excluded. E. No “Unfair Surprise” – FRE 403 does not recognize “unfair surprise” as a ground for excluding otherwise relevant evidence. If proposed evidence takes the other side by surprise, appropriate remedy is a continuance. F. Standard for Appellate Review – Appellate courts have generally given trial courts wide discretion in conduction the balancing between probative value and prejudice. Only where there is clear abuse of discretion will the trial court’s decision be overturned on appeal. The Federal Rules tip the scale in favor of the inclusion rather than exclusion of doubtful evidence, by allowing exclusion only where the probative value is “substantially outweighed” by prejudice, confusion, etc. IV. RECURRING SITUATIONS A. Flight and Other Guilty Acts – Courts usually reason that fleeing the jurisdiction supports an inference that the defendant believed he or she was guilty, and that this supports another inference that the defendant was in fact guilty. On this analysis, flight is usually admitted as relevant to guilt. 1. Similar “Guilty Acts” are also Relevant – A similar approach is taken to evidence about destroying evidence or trying to obtain perjured testimony. 2. Counterargument – An alternative argument that is usually not successful maintains that flight should be excluded because it may show only fear of wrongful conviction Ex: D, who had a prior warrant outstanding for his arrest, tries to flee when the police show up to question him about a new crime. Here, the court will probably require some additional proof that D had some reason to believe that the police were seeking him on the new charge, rather than the old. [Flight + Knowledge = Consciousness of Guilt] Ex: Warrant for D’s arrest; P wants to introduce evidence that a week after the evidence was introduced D flew from Philly to San Francisco. D will argue that there was no evidence linking fleeing to SF and consciousness of guilt. Courts, however, have said that flight can be used (i.e. relevant) in this situation to prove consciousness of guilt and it will be left up to the jury to determine how persuasive. Reverse Situation: D wants to admit evidence that when he heard the police were looking for him that the turned himself in immediately claiming his innocence. P would argue against this but D would argue that non-flight should show consciousness of innocence. This is probably not admissible because this evidence does not help prove guilt or innocence (i.e. doing what most other people would do or what the law assumes people would do does not prove innocence or guilt) B. Similar Happenings – Evidence of similar happenings is sought to be admitted in a variety of trials. In tort cases, typically an accident victim will offer testimony that other people had been injured in the same way on previous occasions. 1. General Rule – Courts are generally reluctant to allow evidence of similar happenings, and the Federal Rules are silent on the matter. If the evidence is to be allowed, though, the proponent must demonstrate that there is a substantial similarity between the collateral event offered as evidence and the event at issue. Ex: P falls while going down the stairs at D’s theater. She produces evidence that the carpet on the stairs was loose because the tacks holding it to the floor had pulled out, and the carpet slipped under her feet. D produces evidence that the carpet was securely fastened. P offers evidence that two or three weeks before her injury, two girls fell at the same spot, and that after they fell, the carpet was found to be loose b/c the tacks fastening it had been pulled out. Held: the evidence of the other falls should not have been admitted, because P did not show that on the earlier occasion, the tacks had been pulled out to the same distance, or that the carpet had the same degree of looseness, as during P’s accident. 2. Conditional Relevance – Because this type of evidence is really an example of conditional relevance, in theory, the judge should always let the material in and allow the jurors the opportunity to evaluate the persuasiveness of the evidence. However, risk of prejudice is also very high and thus exclusion proper. C. Statistical Proof – Parties sometimes seek to introduce testimony by experts about the probability of events. With such probabilistic evidence, however, courts are often very strict about scientific accuracy of the evidence because there is a strong likelihood that it will be very impressive to juries. 1. Probabilistic Evidence is SOMETIMES allowed – Often statistics are used in DNA cases, maternity suits, or w/re fingerprinting evidence. i) Excluded when likely to be given Disproportionate Weight – This type of evidence is often ruled as inadmissible, however, because it distracts the jury (e.g. few juries can resist the temptation to accord disproportionate weight to mathematical formulas and statistics) Ex: Defective tire case (i.e. no question that the tire was defective). However, there is no evidence remaining to prove which company manufactured the tire. Witness (owner of the Service Center) testifies that Goodyear made 80% of the tires at the Service Center, and that four other manufacturers account for the remaining 20% in equal proportion. Goodyear’s attorney object arguing that the court should not permit “gambling odds” testimony and that “mere numbers” cannot support a verdict. Held: If witness would have given the probability in testimony, the testimony would probably be sufficient. However, if the probability was merely stocking numbers, it is probably insufficient. Alternative: P charged with arson and insurance fraud; D set fired to 4 of his residences to collect insurance. Actual fires occurred over 106 month period. P proposes to introduce evidence that the odds of more than 4 serious fires will occur by same owner over 106 month period is 1 in 1.77 trillion. The State kept records of residential fires (accident or no accident) and calculated according to mathematical formula. Held: Appeals court held evidence as sufficient to convict D. This is probably b/c when the probabilities get so high, then convincing beyond reasonable doubt. V. CATEGORICAL EXCLUSION OF RELEVANT EVIDENCE A. Subsequent Remedial Measures – Generally, courts do not allow evidence of subsequent repairs when offered to show the repairer’s culpability. 1. FRE 407 – When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is NOT admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. EXCEPTIONS – This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment a. Timing – The time of the injury is what counts, not the time of the manufacture or sale. Thus, if a change was made after an injury, the evidence is inadmissible. However, if a change was made prior to an injury but after a sale, the evidence is admissible. b. Arguments – This evidence is of relatively little probative value on the issue of negligence and if such evidence was allowed, it might have the effect of discouraging repairs. However, on might rebut that regardless of negligence, not making repairs after being put on notice of a dangerous condition may lead to accidents, lawsuits, and possibility of punitive damages for gross negligence. 2. Permissible Purposes – The rule against subsequent remedial measures applies only where the evidence is offered on the issue of negligence or culpability. If the evidence is relevant to some other contested element in the case, the exclusionary rule does not apply. i) Feasibility – If the defendant claims that he was not negligent or culpable because all feasible precautions were taken, or claims that there was no safer way to handle the situation, evidence that the defendant implemented a safer way following the accident is uniformly allowed. a. When Weighing Different Options, Evidence Not Permitted – If all the D does is to contend that the method chosen seemed at the time to be more practicable, or safer, than some alternative method, the court will usually not allow the plaintiff to use a feasibility argument to introduce the fact that the defendant later chose to use the alternative method. The D will be found to have put feasibility in is sue only by contending that an alternative was really not practicable at all, not by merely contending that the option used in P’s case was somewhat preferable. Tuer v. McDonald – Patient taken off of heparin before surgery; surgery was delayed and patient was not put back on heparin; patient went into cardiac arrest and died. After death, doctors changed their protocol w/re taking patients off of heparin to make it only occur right before surgery. P wants to introduce evidence of this change in protocol as evidence of negligence. Held: The trial judge correctly refused to allow the change-of-protocol evidence to be admitted on a feasibility-in-issue theory. D was not claiming that restarting the Heparin would have been, in an absolute sense, unsafe. D was merely claiming that at the time, he viewed restarting it as relatively less safe than the alternative. Such an expression about relative safety did not amount to placing feasibility in issue ii) Ownership or Control – Subsequent measures evidence is also admissible on the issue of ownership or control of the property that caused the accident Ex: P, a pedestrian, is hit by a car driven by D. P brings a negligence action against D. D defends by showing that the car was not registered to him, and by claiming that the collision occurred b/c, unbeknownst to D, the brakes were faulty. P wants to introduce evidence that D had the bakes repaired after the collision. If he offers this evidence to prove directly that D was negligent in not inspecting the brakes beforehand, the evidence would be barred under the general rule or exclusion. But if P offers the subsequent repair to show that D had enough control over the vehicle to have it repaired (and thus had enough control to have had a duty to inspect the brakes before the accident) the evidence will be admitted. iii) Impeachment – Subsequent measures evidence is admissible to impeach an opposing witness. However, courts usually insist that the evidence truly impeach the credibility of the witness by showing that the witness’ prior testimony was in some sense dishonest. a. If Involving Honest Change of Mind, Evidence Not Admissible – If the evidence merely tends to prove that the witness has honestly changed his mind about a safety issue, it will probably be found to have no bearing on the witness’ credibility and thus held to be inadmissible. Ex: In the Tuer case, D testified that continuing P’s Heparin up until the moment of the operation “would have been unsafe.” P’s lawyer tries to show that after the death of P, D began to do just that. P argues that this evidence would impeach D’s testimony. Held: D’s testimony must be read in context. D was merely saying that at the time of P’s operation, he believed that using the Heparin would be unsafe. The fact that D later changed his mind about what the safest way to handle such situations was did not tend to impeach D’s testimony, b/c the change did not show that this testimony was dishonest. B. Settlement Negotiations – Settlement offers are not admissible because they are usually of low probative value, since a litigant may be attempting to “buy peace” by settling, rather than expressing his real belief about the merits of his case. Moreover, admission of such information would give the parties a strong disincentive to pursue settlement negotiations. 1. Civil Context: FRE 408 – Prohibits proof of civil settlements, offers to settle, and conduct or statements made during settlement negotiations, when offered to prove liability for or invalidity of the claim or its amount i) Collateral Admissions – An admission of fact, if it occurs during the course of settlement negotiations, is not admissible even if it is quite separable from the settlement offer. ii) Admissible Exceptions – FRE 408 does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or when evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution Ex: P and W are both employees of D, a railroad. At the trial of P’s suit against D, D calls W as a witness, and W gives favorable testimony to D. P’s lawyer then elicits from W in cross-examination that W was injured in the same collision but settled with D. Held: the question is proper because proof of D’s settlement with W was not offered for the purpose of showing the validity of W’s (and by inference P’s) claim. Rather it was asked for testing W’s credibility as a witness through bias. 2. Criminal Context: FRE 410 – Requires exclusion of plea bargaining statements by the accused, withdrawn guilty pleas, pleas of nolo contendere (i.e. no contest), and courtroom statements by the accused in entering such pleas i) Must be with Prosecutor – Only statements made to “an attorney for the prosecuting authority” are covered. Therefore, any statements made to police or corrections officers may be used against D. ii) Inadmissible in Subsequent Civil Proceedings – The pleas offer and any collateral statements (i.e. admissions of facts) equally inadmissible in any later civil proceeding C. Medical Expenses – The fact that a party has paid the medical expense of an injured person is excluded when offered on the issue of the party’s liability for the accident that caused the injury. 1. FRE 409 – Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury 2. Communications – Unlike the other rules, in the medical payment context only the fact of the payment is excluded. Other admissions of fact are not excluded. Ex: A statement made to the other party that “I’m paying your medical expenses b/c if I hadn’t been drunk that night, I wouldn’t have been driving on the shoulder and hit you” would be admissible D. Insurance – Evidence that a person carried or did not carry liability insurance is not admissible on the issue of whether he acted negligently. 1. FRE 411 – Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness 2. Works Both Ways – This rule bars such evidence when it is offered by a P to suggest that b/c the D was insured, the D was probably careless. Conversely, such evidence is barred when offered by the D to show that b/c he did no have adequate insurance, he had an incentive to be careful. I. CHARACTER EVIDENCE GENERALLY A. Character Generally – In evidence law, “character” means the type of person someone is – honest, dishonest, generous, selfish, friendly, nasty, careless, cautions, hot-headed, calm, etc. 1. General Rule: Prohibits Character Evidence to Infer Guilt – A basic rule is that evidence of a person’s character may not be introduced to support an inference that the person acted on a specific occasion in conformity with that character. 2. Types of Circumstantial Evidence – There are three types of circumstantial character evidence: i) Reputation – Evidence of a person’s reputation for possession a certain character trait ii) Opinion – The witness’s own opinion as to whether a person has a particular character trait; and… iii) Specific Acts – Evidence of particular acts showing that the person has a particular character trait. 3. FRE 405 – Under FRE 405(a)… (1) Opinion or Reputation – Opinion and reputation evidence are always admissible if relevant. (2) Specific Acts – Evidence of specific acts may not be brought out in direct examination. However, on cross-examination of a witness who has already given opinion or reputation testimony, inquiry is allowable into relevance specific instances of conduct. II. CHARACTER “IN ISSUE” AS ELEMENT OF CRIME OR CAUSE OF ACTION A. Character “in Issue” – If a person’s character, or a particular character trait, is an essential element of the case, and under the substantive law, that character or trait determines the rights and liabilities of the parties, any character evidence is always relevant and admissible. 1. Where Character is Element, Always Relevant – ACN to FRE 404(a) states that where character is an element of a crime, claim, or defense, there is no problem of the general relevancy of the character evidence. i) Limited Applicability – Usually applies to four types of cases…(1) defamation, (2) negligent entrustment, (3) child custody, and (4) wrongful death Ex: In a defamation case, there may be a dispute about whether a description of the P was true. Each side can legitimately introduce evidence on that point without implicating the rule against using character evidence to support an inference that a person acts in conformity with his or her character. Ex: Litigation occurs about the tort of negligent entrustment, where P alleges that D was culpably careless in letting a particular individual operate a care or some kind of machine. To show D was negligent, P could introduce evidence about the character of the operator to show not that the person drove badly or operated a machine badly on a specific occasion, but to show that based on wheat the D should have known about the operator, the D should not have let him or her be in control of the car or machine. Also arises in cases of negligent hiring (e.g. hire a violent person to work as a security guard) 2. All Types of Evidence Permitted – FRE allow all three types of evidence of character when character is in issue. That is, the evidence may consist of: (1) specific acts to demonstrate character; (2) a witness’ opinion of that character; and (3) evidence as to the subject’s reputation for the character trait in issue. III. CHARACTER EVIDENCE AND PROPENSITY A. General Rule of Exclusion – FRE 404(a) provides that “evidence of a person's character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion” 1. Rationale – There are two main reasons supporting the broad exclusion provided by FRE 404(a): (1) belief that the propensity inference may lead to wrong conclusions, and (2) propensity inference would almost always be supported by evidence that carries a significant risk of unfair prejudice. Ex: P brings a civil suit against D, alleging that D negligently drove vehicle thereby injuring P. P offers evidence that D has been found to have driven negligently several times in past, through admission of suits by other accident victims. He also offers evidence that D has a reputation for being a careless driver, and offers the testimony of a witness who would express the opinion that D is a careless driver. All these types of evidence will be ruled inadmissible, because they are offered for purpose of demonstrating that D is a careless driver who probably acted in conformity with this trait during the accident involving P. 2. Civil Context: Carelessness – The issue of character arise most frequently in the civil context where a party in a case involving claims of negligence tries to prove that the other party has a character trait of carelessness, or that he himself had a trait of carefulness. Regardless of whether it is carelessness or carefulness that is sought to be proved, the evidence is inadmissible. B. Evidence of Other Crimes and Wrongs – Evidence of other crimes or bad acts is generally not admissible when offered for the purpose of suggesting that because the D is a person of criminal character, it is more probable that he committed the crime with which he is charged. 1. FRE 404(b) – Evidence of other CRIMES, WRONGS, or ACTS is not admissible to prove the character of a person in order to show action in conformity therewith. Ex: D is charged with the murder of V. The prosecution shows that V and some others insulted D’s wife, leading D to threaten to “bump them all off” if they didn’t leave w/in five minutes. D then returned to his apartment, selected a gun from his weapons collection, went back out to the scene of the argument, and shot V to death. At trial, prosecution seeks to introduce evidence the fact that, at the time of the encounter and of the subsequent arrest of D, D kept three pistols and a teargas gun in his apartment. the weapons should not have been admitted. They were introduced to persuade the jury that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill.” It is a fundamental principle that character is never an issue in a criminal prosecution unless the D chooses to make it one. 2. Exclusion Applies Regardless of Whether there was Prior Conviction – Prior conduct will come within the exclusion regardless of whether there was a criminal conviction, even if there was enough evidence to attain such a conviction or whether the act was morally-reprehensible. Ex: D is charged with robbing a 7-11. FRE 404(a) means that P can’t introduce D’s three prior conviction for robbing various other commercial establishments, to show that it’s more likely that D committed the robbery now charged. Ex: D is charged w/ money fraud. P wants to show that D owed money to people, and failed to pay them back even though he had the funds to do so; the purpose of this evidence is to suggest that D behaves reprehensibly in money. Even though the non- repayments aren’t crimes, 404(a)’s ban on the use of character evidence to prove conduct on the present occasion applies. 3. NO EXCLUSION of Previous Acts when Offered for OTHER PURPOSES – If the prosecution offers evidence of the D’s past crimes not to show that he has a criminal disposition but to show the existence of some fact relevant to the crime, the general rule of exclusion does not apply. i) FRE 404(b) – [Evidence of prior crimes, wrongs, or acts] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident… ii) Notice to Defendant Required – FRE 404(b) requires the prosecutor to give notice, before trial if the defense requests, or during trial if the court excuses pretrial notice on good cause show, of “the general nature” of evidence of prior acts or wrongs that it intends to introduce. iii) Still Subject to Prejudice Ruling – Even if the evidence is admissible under the “other purpose” rationale, it will be admitted only if it satisfies FRE 403 and the probative value of the evidence outweighs its tendency to cause undue prejudice, confusion, etc. iv) Various “Other Purposes” – Below are some “other purposes” made admissible under FRE 404(b). However, the Advisory Committee Notes to 404(b) state that the list is intended to be illustrative rather than exhaustive. a. Context – Other crimes evidence may be used to place the crime in context, by describing other events or conduct that were part of the same transaction. Ex: Suppose that D is charged with murdering V, a policeman. The murder occurred when V was trying to arrest D on a robbery charge. V’s partner, W, testifies that while V was trying to arrest D, D not only shot V to death but also shot and wounded W. The “telling of the story” of the murder inevitably involves evidence of an additional crime (i.e. the shooting of W) but b/c info is part of the overall context in which the murder took place, the evidence is admissible. b. Larger Plan – Other-crimes evidence may be used to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is part. Ex: D is charged w/ stealing money from V. The state shows that D came to V’s place of business, put her hands all over him and propositioned him for sex, while picking his pocket. X and Y testify that in separate incidents, D came to their offices and picked their pockets in a similar way. the evidence of the other crimes on X and Y was admissible b/c it showed that D’s acts concerning V were part of a common scheme or plan. c. Preparation – Other-crimes evidence may be used to show preparation for the crime charged. Like “common plan or scheme,” a showing of preparation is likely to reveal the D’s state of mind – for instance to show purposefulness to negate the possibility of accident. d. Identity or Modus Operandi – When other crimes are offered to show identity, the prosecution’s theory is that the other crimes by the accused are so similar in method to the crime charged that all bear his “signature” and thus justifying the inference that if D committed the prior crimes, he also must have committed the present crime. i. Two Requirements Necessary – (1) the accused must deny his participation in the crime charged; and (2) the methods involved in the other crimes must be so very similar to those used in the crime charged that the similarity is substantially probative of identity. Ex: On the pick pocketing facts (see supra), the signature rational could have been used to admit the evidence of the other crimes, since the overall modus operandi used was so idiosyncratic that it strongly suggested that all of the crimes identified D as the perpetrator. Compare Cases: The M.O. rationale was allowed in bank robbery cases in which the robbers, on both occasions, entered the banks carrying a distinctive duffel bag in one hand and brandishing a handgun in the other, vaulted over the teller counter and demanded money, emptied the drawers, their getaway car was a blue Chevy Cavalier, and both occurred w/in ten days and 25 miles of each other. However, the rationale was not allowed where two robberies involved a lone gunman, handgun, lack of disguise, and proximity but there were striking differences in that the earlier crime involved dynamite and a culprit who posed as a businessman and took a hostage. e. Intent (to Rebut Innocent Explanation) – Evidence may be used to show that D acted maliciously, deliberately, or with the specific intent required for the crime. Generally, the way such evidence becomes relevant is that the D admits the act charged, but asserts an innocent explanation of the act. Evidence of similar acts is admissible on the theory that the more often an act occurs, the less probable that it could have been done innocently. f. Knowledge – Other-crimes evidence may be used to show, by similar acts, that the act is question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge. U.S. v. Huddleston – D is prosecuted for knowingly receiving stolen goods (blank video cassettes). D, who bought tapes from W, claims that he did not know they were stolen. The prosecution offers evidence showing that on prior and subsequent occasions, D bought other stolen goods from W, thus suggesting that D must have known that the tapes were stolen. evidence of other possessions is admissible since it tends to prove knowledge, an element of the offense g. Motive – Other-crimes evidence may be used to establish motive. Since motive itself is never an essential element of a crime, the use of the prior acts evidence to establish motive is always part of a chain of reasoning. Thus, the proof of motive may be probative either of conduct or intent. Ex: D, nurse, is charged with removing the painkiller Demerol from syringes and replacing it with a saline solution. At D’s trial, the judge allows the prosecution to place in evidence several of D’s past acts, including that D’s nursing license was previously suspended b/c she stole Demerol and that she was addicted to Demerol and that the suspension occurred in part b/c she falsified drug-test results to conceal here addiction. Acts were properly admitted b/c they tended to show that D had a motive for stealing Demerol. These acts were not admitted to show that D had a propensity to steal Demerol but rather that she had an incentive (motive) to steal it so that she could gain a “free supply” to feed addiction. h. Opportunity – Other-crimes evidence may be used to establish opportunity to commit the crime. Usually, this exception will be used to show that the D had access to the scene of the crime, or was present at the scene at the time of the crime. It may also apply where the other-crimes evidence shows that the D had special skills or abilities used in committing the crime. Ex: D is charged with car theft; the theft is said to have occurred on July 1, 2000. D defends on the grounds that he was in prison for the entire year of 2000. The prosecution responds by showing that D was convicted of having escaped from prison on June 30, and offers trial testimony demonstrating that D was not recaptured until July 4. Although the prosecution’s evidence consists of proof of other crimes (i.e. the escape), it will be allowed b/c it shows that D had the opportunity to commit the crime. i. Impeachment – Other-crimes evidence may be used to impeach an accused who takes the stand, by showing a prior conviction. In this situation, the evidence is being used not to prove directly that the D is guilty of the crime charged, but rather, to suggest that b/c he is a convicted criminal, his credibility as a witness is suspect. 4. Proof beyond Reasonable Doubt Not Required – Under the Federal Rules, if offered under the “other crimes” exceptions, evidence of the D’s guilt in the other crimes is admissible even though that other crime has not been proved beyond a reasonable doubt or even by a preponderance of the evidence. Ex: In Huddleston (video tape case), the Court held that all that FRE 404(b) requires is that the evidence of the other crime be strong enough that the jury could “reasonably find” that the other crime was committed by D. IV. EVIDENCE OF CRIMINAL DEFENDANT’S GOOD CHARACTER A. Good Character Generally – A defendant in a criminal trial may always present evidence of his good character to show that it it’s unlikely that he committed the crime with which he’s now charged. 1. FRE 404(a)(1) – Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...Evidence of a pertinent trait of character offered by an accused… i) Rationale – Allowing the D to offer favorable evidence about his character implicates no possible prejudice to the D, and thus, in theory the probative value outweighs the disadvantages of its admission. B. Method of Proof by Defendant – The fact that the D may put on evidence of favorable and relevant character trait does not mean that all types of evidence bearing on that trait are admissible. 1. Reputation and Opinion Allowed, But NOT Evidence of Specific Good Acts – FRE 405(a) allows both the admission of reputation and opinion evidence to show good character. However, the defendant may not call witnesses to testify about specific instances of his good character. i) Specific Instances – Evidence offered in the form of specific good acts is only admissible when the character trait is at issue and an element of the cause of action under substantive law. ii) Negative Evidence Usually Permitted – Courts generally allow negative evidence, i.e., testimony that the character witness has not heard anything bad about the defendant. C. Rebuttal by Prosecution – D’s right to offer favorable character evidence is countered in two ways… (1) Call Bad Opinion or Reputation Witnesses – If defense witnesses testify that the D’s reputation is good, the prosecution may then put on witnesses who say its bad; OR (2) Cross-Examination on Specific Acts of Bad Conduct – The defense character witnesses may not only be cross-examined but in addition they may also be asked about specific instances of bad conduct a. FRE 405(a) – Prosecution receives considerable leeway in cross-examining D’s character witnesses. Specifically, “on cross-examination, inquiry is allowable into relevant specific instances of conduct.” V. CHARACTER OF CRIME VICTIM A. Crime Victims Generally – FRE generally allow D to introduce evidence about the victim’s character, to show that the victim acted in conformity with that character on a particular occasion 1. FRE 404(a)(2) – States that…Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except… (1) Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, OR (2) Evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor 2. Proof of First Aggressor – The principal use of the rule is in homicide and battery/assault cases, in which the defendant claims self-defense and therefore claims that the victim was the first aggressor. In this situation, virtually all courts allow the D to introduce evidence that a victim had a violent character. This exception applies even where the D cannot show that he was aware of the victim’s violent character 3. Criticism to FRE – Allowing evidence of the victim’s bad character does not bring undue prejudice against the D. However, victim character evidence does suffer from the shortcoming that the jury may conclude that, b/c the victim was a “bad person” he merely got what he deserved. B. Rebuttal by Prosecution – Once D has introduced evidence of the victim’s character for violence to support that victim was the first aggressor, prosecution then has the right to rebut this by showing the victim’s peaceable character. The prosecution may do this by… (1) Cross-examining the defendant’s reputation or opinion witness which allege violent character of victim OR (2) It may present its own witnesses who give reputation or opinion evidence that the victim was peaceable. Ex: D is on trial for murdering V. D, taking the stand in his own defense, claims that V attacked him first. D does not try to show that V had a general character for violence, here merely asserts that on this particular occasion, V attacked first. FRE 404(a)(2) gives the prosecution the right to show, by reputation or opinion testimony, that V was a peaceful person. C. “Opening the Door” to an Attack on Defendant’s Character – Under a recent amendment, if the defendant argues the victim’s violent character, he has “opened the door” for the prosecution to introduce evidence showing that the defendant has a violent character as well. 1. FRE 404(a)(1) – “…if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused [may be] offered by the prosecution” i) Rationale – ACN to Amendment state “[i]f the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor” Ex: D is charged w/ murdering V in a barroom brawl. D claims self-defense, asserting that V attacked him first. To bolster this defense, D introduces evidence that V has a reputation for violence. FRE (a)(1) says that D, by introducing V’s violent disposition, has opened the door to similar reputation or opinion testimony about D’s violent disposition. 2. Narrowly Defined – The recent amendment is very narrowly defined – it applies only when the accused successfully offers evidence of the victims’ character under FRE 404(a)(2), not under some other rule. i) Ex: In above example, D had taken the stand to testify that at the moment he used force in his own defense, he did so in part v/c he knew that V had a reputation for extreme violence. Here, D is not trying to get V’s violent reputation into evidence under FRE 404(b)(2), but is instead trying to show the reasonableness of his own belief that self-defense was called for. Consequently, 404(a)(1) does not apply, and the prosecution does not get to show that D himself had a reputation for violence. VI. VICTIM’S CHARACTER IN A SEXUAL ASSAULT CASE A. Generally – In cases of rape and other types of sexual assault, courts have, until recently, been quick to admit evidence of a victim’s “character for chastity” (i.e. given D wide latitude to introduce evidence of the victim’s prior sexual activities in cases where D asserts that the woman consented). B. Rape Shield Laws – In recent years, nearly all jurisdictions have enacted some form of rape shield laws. These laws attempt to channel or limit evidence about the victim’s past sexual history. Following this trend, the Federal Rules added FRE 412 – 415 as special provisions dealing with rape and sexual assault. 1. INADMISSIBLE: FRE 412(a) – The following is not admissible in any civil or criminal proceeding involving alleged sexual misconduct… (1) Other Sexual Behavior – Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Sexual Predisposition – Evidence offered to prove any alleged victim's sexual predisposition. 2. EXCEPTIONS: FRE 412(b) –– (1) Criminal Cases – In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) Source of Semen – 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 semen, injury or other physical evidence; (B) Proof of Consent – 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 (C) Constitutional Rights Exception – Evidence the exclusion of which would violate the constitutional rights of the defendant. (2) Civil Cases – In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it… i. Balancing Test – Is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. AND ii. Reputation Evidence – Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. Ex: P, a woman, sues D, her employer, for sex discrimination. P alleges that D maintained a hostile workplace, in which male workers propositioned her and otherwise sexually harassed her. D defends on the grounds that P dressed in a provocative manner and otherwise “asked for” the sexually-oriented conduct she received. D will not b permitted to show, in furtherance of this defense, that P had a reputation (either in the workplace or elsewhere) for promiscuity. However, if P makes statements about her good sexual reputation, then P would be found to have placed her reputation in controversy and D would be permitted to rebut her statement by showing that she has a reputation for unchastity. 3. Reputation or Opinion Evidence – Evidence relating to victim’s reputation for past sexual behavior, and opinion testimony about that past behavior, is generally excluded. Thus, in rare instances where evidence concerning the victim’s past sexual behavior is admissible, that evidence must take the form of specific acts. 4. Specific Acts – Specific acts evidence concerning the victim’s past sexual behavior is inadmissible unless it falls into one of three categories: (1) source of semen or injury; (2) consent; (3) constitutional requirement C. Notice Requirement – FRE 412(c) requires that the accused give 14 day prior written notice of his intent to use character evidence relating to the victim’s past sexual behavior. 1. Judicial Hearing for Admissibility and Prejudice – The court then conducts a hearing in chambers to determine the admissibility of the evidence. Even if the judge concludes that the evidence falls within one of the exceptions, however, he may not admit it unless he concludes that it is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice. D. Possible Constitutional Problems – No one has so far successfully challenged any part of FRE 412 on constitutional grounds. However, here are some possible challenges… 1. Due Process – On occasion, a victim’s sexual predisposition may be so highly probative on the issue of consent that to exclude it would violate the defendant’s due process rights. 2. Best Available Evidence – Reputation or opinion evidence may, even if not known to the defendant at the time of the incident, be the best available evidence of how the victim behaved during the episode 3. Conduct With Persons Other than Accused – On occasion, the victim’s sexual conduct with a person other than the accused will be highly relevant to the issue of whether she consented to sex with defendant and might have to be admitted even though this type of evidence is the very type 412 is designed to exclude. VII. DEFENDANT’S CHARACTER IN SEXUAL ASSAULT CASES A. Proof of Previous Sexual Assaults or Child Molestation – FRE 413-415 make it dramatically easier for the prosecution in a sexual assault or child molestation case to show that the D has previously committed sexual assault or child molestation offenses and for the P in a civil case to do the same. 1. Criminal Cases i) FRE 413 – In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant a. Notice Requirement – Government must disclose the evidence to defendant, including statements of witnesses or summary any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause ii) FRE 414 – Applies the same rule for child molestation: in a present prosecution for child molestation, the prosecution may show that the D committed previous child molestation. Has same notice requirement. 2. Civil Cases i) FRE 415 – In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. ii) Notice Requirement – A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause B. No Conviction Required – The prior act of sexual assault/molestation does not have to have led to a conviction. Incidents that were never reported to the police may be introduced (by testimony of the victim) and incidents that ended in acquittal may also be introduced. C. No Time Limit – No time limit is imposed on these rules, thus, evidence of prior sexual crimes may be introduced no matter how long ago they were alleged or charged. VIII. HABIT A. Generally – Evidence of a person’s habit is admissible to show that he followed habit on a particular occasion. 1. Character v. Habit – Character is a generalized description of a persons’ disposition or of the disposition in respect to a general trait such as honesty, temperance, or peacefulness. Habit, by contrast, is more specific and denotes one’s regular response to a repeated situation. Ex: Evidence that X generally drives carefully goes to his character since it relates to a relatively general trait. Therefore, such evidence will normally be inadmissible. But evidence that every work day, X crosses a particular railroad, and that he always stops, looks both ways, and then proceeds, would be evidence of his “habit.” Such evidence will therefore generally be admissible to prove that on the particular day in question X stopped and looked before crossing the tracks. 2. Factors – There seem to be three main factors that courts consider when deciding whether something is a habit or a trait of character… i) Specificity – The more specific the behavior, the more likely it is to be deemed a habit rather than a character trait ii) Regularity – The more regular the behavior, the more likely it is to be a habit. By regularity, courts seem to mean the ratio of reaction to situations. iii) Unreflective Behavior – Behavior is more likely to be a habit it it’s unreflective or semiautomatic rather than if it’s volitional or conscious 3. FRE 406 – Provides that evidence of … (1) the HABIT of a person … OR (2) of the ROUTINE PRACTICE of an organization, … whether corroborated or not and regardless of the presence of eyewitnesses, is RELEVANT to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice” Ex: A party wishes to prove that a certain letter was mailed by X Corp., a business. The party need not produce testimony by the person who actually mailed the letter. It is sufficient that the party show that the letter was placed in an “out box” at X Corp., if X Corp’s mal clerk testifies that it was part of his job to collect all letters in the out box and mail them every day. This would be sufficient proof that the particular letter was mailed, even if the mail clerk testified that he could not remember whether he mailed the letter in question. Ex: P sues a dentist claiming that there was no waiver of liability. D, however, can introduce evidence (from staff and other dentists at that practice) that supplying a waiver is routine practice of the organization. This would not win the case, but it would provide support I. COMPETENCY OF WITNESSES A. Generally – One of the contrasts between early common law and the modern Rules of Evidence is in the area of competency of witnesses. A witness is competent if he possesses the qualifications necessary to give testimony. 1. Common Law Approach – At common law, a witness would be found incompetent, and thus not permitted to give any testimony at all, if he had a mental incapacity; did not belief in a supreme deity (i.e. religion); had a criminal conviction; was a young child; had an interest in the outcome of the litigation (i.e. could not be a witness for one’s self, witness for spouse, or witness for an accomplice). 2. Modern Approach: Presumed Competent – Today, all witnesses are presumed competent and the common-law grounds for disqualification are at most factors that go to the witness’ credibility i) Presumption of Competency – FRE 601 states that “every person is competent to be a witness except as otherwise provided in these rules” a. State Law Issues – FRE 601 continues, however, “in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law” ii) Requirement of Personal Knowledge – FRE 602 requires that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. iii) Oath Requirement – FRE 603 states that “before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so” B. Competency of Other Possible Witnesses 1. Child Witnesses – Under the FRE, even a witness who is quite young will not be prevented from testifying if the trial judge is convinced that he has relevant first-hand knowledge and understands the obligation to tell the truth under an oath Ex: Child testified that she went to church, that a lie was a thing that is not true, and that it was a bad thing to tell a lie. She also promised to tell the truth about everything she was asked in court. D wanted to exclude evidence. Held: Court concluded that even if child did not understand the concept of perjury, she did understand right versus wrong and that she must tell the truth while on the stand. Thus her testimony was properly admitted as evidence 2. Hypnosis – Most courts reject testimony by a witness who has been hypnotized on the theory that the hypnosis creates a risk that the witness will think he knows something that was really only suggested during the hypnosis. However, courts do allow testimony if the proponent can show that the testimony only repeats information the witness believed prior to the hypnosis and that the session itself was not suggestive i) Federal Rules – No provision in the Federal Rules refers to hypnosis. However, many courts have used FRE 403 to balance probative value against the risk of improper prejudice. Ex: D was charged with manslaughter in the death of her husband but argued that it was accident/self-defense. She could recall some of the events but not all the details (gap surrounding when the gun went off). Under hypnosis, D remembered details indicating that her gun was defective and had misfired, which was corroborated by expert testimony. However, court ruled that no hypnotically refreshed testimony would be admitted (b/c no proof of value; can strengthen incorrect memories). Held: Arkansas' per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his or her own behalf. Furthermore, any inaccuracies can be reduced by procedural safeguards (use of tape or video recording). 3. Spousal Testimony in Criminal Cases – Modern reform of the “spousal incompetency” laws allows only the prospective witness spouse to exercise the incompetency right. 4. Lawyers as Witnesses – Although modern cases generally recognize competency of attorneys to testify in cases where they are acting as counsel, many decisions hold the judge has the discretion to exclude such testimony or to condition it on withdrawal by the attorney from the case Ex: You’re a lawyer (civil case) and talk w/ a witness who will testify that your client did not cause a fight and thus is not liable for the injuries sustained by the other party. However, when the witness comes to court he testifies oppositely. What can an attorney do to avoid the exclusion/condition on withdrawal? Impeach the witness by (1) recording the prior meeting and (2) get a 3rd party to take the statement so that person can testify 5. Presiding Judges May Not be Witnesses – FRE 605 states that the judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. 6. Jurors as Witnesses – The possibility that jurors might testify occurs in two different contexts: (1) a juror might have information about the facts in dispute in a case for which the person is a juror; and (2) a losing party might hope to have a result reversed by having a juror testify about improper conduct by the jury. i) Testimony about Merits Strictly Prohibited – FRE 606(a) states that “a member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. ii) Improper Verdicts – FRE 606(b) states that “upon an inquiry into the validity of a verdict or indictment… a. Prohibited – A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations … b. Exception – Except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. iii) Affidavits – Similarly, a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes is also inadmissible Ex: D convicted of detonating explosive but afterwards lawyer is told that one juror informed jury that he was a demolitions expert and that the bomb was very dangerous even though no injuries occurred this time; lawyer seeks to admit this evidence to impeach the verdict. Internal prejudice that should have been found out in voir dire; would be a far different situation if one of the jurors had found out this information when seeking it out on the internet; probably no remedy here Ex: D convicted; week later judge receives letter stating that the jury violated the judge’s instructions b/c it considered D’s refusal to take the stand as an admission of guilt. Admissible? No; internal prejudice; no remedy allowed to the D II. DIRECT & CROSS-EXAMINATION A. Direct Examination – When a lawyer calls a witness, the lawyer’s questioning of that witness is called the direct examination. The direct examination is generally used to establish those facts that are essential to the claim or defense of the party calling the witness 1. No Leading Questions – During direct examination, the examiner may not ask leading questions. A leading question is one that suggests to the witness the answer desired by the questioner. i) Rationale – Courts fear that a friendly witness will tend to adopt whatever words the lawyer puts in his mouth, and it is important that jury to hear the story in the words of the witness and not the words of the calling lawyer. 2. EXCEPTIONS: Where Leading Questions are Allowed on Direct Examination i) Preliminary Matters – Leading questions may be used to develop preliminary matters, or matters that are not really in dispute. ii) Unfriendly Witness – If the usual assumption that the witness is “friendly” to the party calling him is incorrect, leading questions may be asked. a. FRE 611(c) – Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony …When a party calls… 1. a HOSTILE WITNESS, 2. an ADVERSE PARTY, or 3. a witness IDENTIFIED with an ADVERSE PARTY, …interrogation may be by leading questions iii) Less Competent Witness (i.e. “May be Necessary to Develop his Testimony”) – The witness may have some kind of handicap that makes it difficult for him to respond to non-leading questions. This may be the case, for example, if the witness has trouble speaking English, is very young, or is unusually unintelligent, or is very timid, reticent, reluctant, or frightened. iv) Forgetful Witness – If the witness is forgetful, leading question may sometimes be used to refresh his memory. Usually, this means the lawyer gently reminds the witness of something he has said before, perhaps in a written statement, affidavit or deposition. a. Refreshing Memory with Piece of Writing – FRE 612 states that a witness may use a piece of writing to “refresh memory for the purpose of testifying” both … (1) While testifying, or (2) Before testifying, if the court in its discretion determines it is necessary in the interests of justice b. Procedural Requirements For Using Writing – If a witnesses uses a piece of writing for recollection, FRE 612 also provides that the adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness B. Cross-Examination – After a party calling a witness has finished the direct examination, that party’s adversary has the opportunity to cross-examine the witness. 1. Leading Questions Permitted – In contrast to direct examination, leading questions are usually permitted during cross-examination. This is because during cross-examination, the witness will generally not be friendly, so there is little danger that the witness will adopt the questioner’s suggested answers as his own. i) FRE 611(c) – States that “[o]rdinarily leading questions should be permitted on cross-examination.” 2. Scope-of-Direct Rule – FRE limit cross-examination to matters testified to on direct examination. i) FRE 611(b) – Cross-examination should be limited to… i. The SUBJECT MATTER of the direct examination … AND ii. Matters affecting the CREDIBILITY of the witness. Judicial Discretion Exception – The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination ii) Same Transaction or Statement – Even under the scope-of-direct rule, the cross-examiner may bring out facts that related to the same transaction, conversation, or statement that was the subject of the direct examination. Ex: Suppose P’s lawyer asks W, “What did D say to you after the collision?” D’s lawyer will be permitted to ask W on cross, “What did you say in return?” since D’s response was part of the same conversation that was testified to on direct. P, by his question on direct, “opened the door” to the rest of the conversation C. Redirect – After cross-examination, the party who called the witness has the opportunity to question him again, in what is called redirect examination. 1. Scope of Redirect – The party who calls a witness is normally required to elicit on the original direct examination every part of the witness’ story that is of interest to the calling party. Thus the redirect examination must be limited to aspects of the witness’ testimony that were first brought out during cross- examination. 2. Recross – After redirect, the cross-examiner will have a limited opportunity to conduct recross examination. As with redirect, the recross may not cover subjects that were covered by the examiner in his previous questioning (i.e. the cross-examination), and rather, only matters newly brought up in the redirect. III. IMPEACHMENT OF WITNESSES GENERALLY A. Impeachment Generally – Impeachment is a technique to show flaws in the witness rather that in the testimony, and thus, is designed to destroy the witness’ credibility. 1. Five Types – There are five common techniques for impeaching a witness… i) Bias – Credibility may be attacked by showing that the witness is biased in favor of or against one side, because of family relationships, financial interest, or other ulterior motive. ii) Sensory or Mental Defect – Credibility may be weakened by a showing that the witness suffers from a sensory or mental defect (e.g. hard of hearing, psychotic, etc.) iii) Character – The witness’ general character, especially his character for truth-telling, may be attacked. This is usually done in one of three ways… a. Bad Acts – By showing that he has previously committed bad acts that have not led to convictions b. Convictions – By showing that he has previously been convicted of one or more crimes c. Reputation – By showing that he has a bad reputation (usually reputation for not telling the truth) iv) Prior Inconsistent Statements – The witness’ credibility may be attacked by showing the on a prior occasion, he has made a statement that is inconsistent with this present testimony v) Contradiction – The witness may be impeached by the production of other evidence (e.g. testimony from another witness) that statements made by the first witness are not correct. 2. Impeaching One’s Own Witness – At common law, the rule has long existed that a party may not impeach his own witness, and thus, impeachment was not allowed on direct examination. In recent years, however, the Federal Rules have completely abandoned the common law prohibition. i) FRE 607 – The credibility of a witness may be attacked by ANY PARTY, including the party calling the witness ii) Limitation: Subterfuge to avoid Hearsay – Some courts (6th Cir.) have held, however, that it is an abuse of FRE 607 in a criminal case if the prosecution were able to call a witness that it knew would not give it useful evidence just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss or ignore the subtle distinction between impeachment and substantive evidence. a. Dispositive Issue – The limitation turns on whether the impeachment was done in bad faith (i.e. had attempted to interview witness prior to putting on stand). United States v. Webster (1984) – D (Webster) as convicted of aiding and abetting the robbery of a federally insured bank. During the trial, the government called the bank robber (King) as a witness against Webster. King gave testimony that if believed would have exculpated the defendant, whereupon the government introduced prior inconsistent statements that King had given the FBI inculpating Webster. Although eh court instructed the jury that it could consider the statements only for impeachment purposes, D argues that this is not good enough. Held: Impeachment by prior inconsistent statements may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible. However, because there was not bad faith here and P had offered voir dire, judgment was affirmed. IV. INDIRECT IMPEACHMENT A. Witness Bias – A witness is biased whenever his emotions or feeling toward the parties or towards some aspect of the case make the witness desire one outcome rather than another. 1. Types of Bias i) Friendly – The witness may have a friendly bias to one of the parties due to a personal relationship, because one employs or does business with the other, or even because the party has paid the witness money for testimony or in settlement of a claim related to the transaction involved in the suit. ii) Hostile – Conversely, the witness may be hostile to a party because the witness and the party have argued in the past or one has sued each other. iii) Self-Interest – The witness may have an interest in the outcome, apart from any feeling of favor or hostility to either of the parties (e.g. expert witnesses) Ex: If W is an expert witness, the fact that he is being paid for his testimony is usually allowed as evidence that he has an interest in having the case come out in favor of the party for whom he is testifying (even if the expert’s receipt of payment for his time and testimony is completely proper) Ex: In a criminal case, W’s own legal status may be affected by the outcome. For instance, if W has pled guilty to some related event, has agreed to cooperate with the prosecution, and is awaiting sentencing., these facts may be shown to establish bias b/c it is plausible that W will get less jail time if his testimony aids in convicting the D. iv) Membership in Group – Bias may even be shown by the fact that the witness belongs to a particular organization and subscribes to its beliefs. Ex: D and two cohorts were indicted for bank robbery. The cohorts pleaded guilty but D went to trial. One of cohorts, E, agreed to testify against D. D sought to counter E’s testimony with that of M, who would testify that E had admitted to M that he intended to implicate D falsely, in order to receive favorable treatment. P intended to discredit M’s testimony by calling E to the stand to testify that D, M, and E were all members of a secret prison gang that was sworn to perjury and self- protection on each member's behalf. D was convicted and appealed. Held: P was entitled to show that a defense witness, E, and D were both members the secret prison organization which had a creed requiring members to lie to protect each other. A witness sand a party’s common membership in an organization even without proof that the witness or party has personally adopted its tenants, is certainly probative of bias. 2. Extrinsic Evidence Allowed – Facts showing bias are never collateral. Thus, if the witness denies being biased, the cross-examiner is not required to take the answer, and instead he may call other witnesses to prove the facts suggesting bias. 3. No Foundation Required – The lawyer may cross-examine to show bias without laying any foundation. B. Sensory or Mental Defect – A witness can always be impeached by showing that his capacity to observe, remember, or narrate events correctly has been impaired. 1. Extrinsic Evidence Allowed – A witness’s sensory or mental defect is never deemed to be of “collateral importance.” Therefore, the rule barring extrinsic evidence on a collateral issue does not apply. 2. Drugs & Alcohol – It is settled that the attacking party may show that the witness was under the influence of drugs or alcohol at the time of the events or even during trial 3. Mental Institutions – Cross-examining on mental afflictions or illness is also proper, including questioning about treatment or stays in mental institutions. C. Proof of Prior Convictions – One way of suggesting that a witness is untruthful involves his prior convictions. This form of attack serves as an exception to the general rule against propensity evidence. 1. FRE 609(a) – For the purpose of attacking the credibility of a witness… i) Witness Other than Accused – Evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403 [probative value substantially outweighs dangers of unfair prejudice], if the crime as punishable by death or imprisonment in excess of one year under the law under which the witness was convicted… ii) Accused Witness – Evidence that an accused has been convicted of [a crime punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; iii) Dishonesty Crimes against Any Witness – Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment 2. Falsehood or Dishonesty Convictions – It is far easier to admit evidence about crimes of “dishonestly or false statement” b/c… (1) The crime can be admitted even when it’s only a misdemeanor, and (2) The crime must be admitted without any balancing of probative value against prejudice. i) Types of “Falsehood” Crimes – Some crimes that are generally considered part of this group include: perjury or subornation of perjury, false statement, criminal fraud, embezzlement, taking property by false pretenses, counterfeiting, forgery, and filing false tax returns. a. Not Covered – Crimes not covered include most violent crimes (murder, rape, assault, and battery) as well as other crimes such as drug offenses, prostitution, and driving while intoxicated. b. Ambiguous Crimes – Some courts consider various theft crimes (shoplifting, robbery, receiving stolen goods) as covered under this rule. This is debatable, however, and can go either way depending on the facts of the case. 3. Felonies Not involving Dishonesty – It is far harder to admit evidence of crimes that did not involve dishonesty b/c… (1) The crime must be a felony; and (2) There is a balancing of probative worth and prejudice i) Balancing Test – Two different balancing standards… a. Witness is the Accused – Where the witness is the accused, he gets an extra measure of protection against the conviction’s prejudicial effect because the conviction gets excluded even if its prejudicial effect only slightly exceeds its probative value. b. Witness is Not the Accused – If the witness is not the accused, the conviction will be blocked only if its prejudicial effect “substantially” exceeds its probative value (FRE 403). 4. Time Limit – The older the conviction, the less probative value it has. Thus, FRE 609(b) provides that if 10 years has elapsed from both the conviction and the end of the prison term for that conviction, the conviction is not admissible. i) FRE 609(b) – Evidence of a conviction under this rule is not admissible if… a. Ten Year Limitation – A period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, b. Exception – Unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. ii) Advanced Notice Required – To use a more-than-10-years-old conviction for impeachment, the party must give advance written notice of its intent to use the conviction, so that the other party may have fair opportunity to contest the use of such evidence. iii) “Substantially Outweighs” Exception – The requirement of specific facts and circumstances and the requirement that probative value “substantially” outweigh prejudice, make it much harder to get a 10- year-old conviction into evidence than a more recent one. 5. Pardon – Under the FRE 609(c), the effect of a pardon depends on the reason for it… (1) Rehabilitation and No Subsequent Felonies – If the pardon was granted b/c the person convicted was found to have been rehabilitated, the conviction cannot be used for impeachment as long as the witness has not been convicted of a subsequent felony; (2) Innocence – If the pardon is based on a finding of innocence, the conviction may never be used for impeachment. 6. Juvenile Adjudications – FRE 609(d) states that juvenile adjudications are generally not admissible. i) Exception: Necessary for Fair Determination – The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence 7. Appeals – FRE 609(e) permits cross-examination on convictions despite pendency of an appeal, a result justified by the fact that convictions are so much more often affirmed than reversed. D. Proof of Prior Bad Acts – Another way to suggest that a witness is disposed to be untruthful is to bring out on cross instances of non-conviction misconduct that seem to bear on truthfulness. 1. FRE 608(b) – Specific instances of the [bad] conduct of a witness… i) Extrinsic Evidence Prohibited – May not be proved by extrinsic evidence [can’t call extra witnesses] ii) Limited Cross Examination Permitted – They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness… (1) Concerning the witness' character for truthfulness or untruthfulness, OR (2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified 2. No Extrinsic Evidence – The prior bad act may be proved only through cross-examination, not through the presentation of testimony by other witnesses or other extrinsic evidence. 3. Probative of Truthfulness – Only those prior acts that are “probative of truthfulness or untruthfulness” may be brought up. This is a contrast to the prior convictions, where no connection need be made. 4. Alternative to Limitations of Prior Convictions – Prior convictions which would not be admissible under FRE 609 (prejudice, misdemeanor, time, etc.) possibly could be admissible under FRE 608(b). E. Opinion or Reputation Evidence by Another Witness – The final method of character impeachment is when the opponent offers testimony from a second witness that the first witness has a bad character for truthfulness. 1. FRE 608(a) – The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation [of another witness], but subject to these limitations… a. The evidence may refer only to character for truthfulness or untruthfulness, AND b. Evidence of truthful character is admissible only AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise 2. No Specific Instances – On direct, the second witness may recite that the first witness has a bad reputation for truthfulness or state his own opinion about the first witness’ character for truthfulness. However, the second witness may not refer to any specific instances of untruthful conduct by the first witness. i) Exception: Cross-Examination– The ban on specific instances of past conduct does not apply to cross examination. However, past instances of truthfulness (unlike lying) are rare, so the right to use past instances of truthfulness is often of little utility. Ex: If D takes the stand to deny the crime, and the P calls W to testify that W has a bad opinion of D’s truthfulness, W may not recited the particular past lies by D that have led W to this unfavorable opinion on D’s veracity. The rational is that were the details of past lies allowed, these details would be unduly prejudicial to D, and a lot of trial time would be used up which D’s counsel tried to show that D did not really lie on prior occasions. V. DIRECT IMPEACHMENT A. Prior Inconsistent Statements – Generally, when a witness testifies at trial, evidence of his prior inconsistent statements is admissible to impeach his credibility. 1. Rationale – This is impeaching to the witness in two ways: (1) it directly casts doubt on the truthfulness of the current statement; and (2) insofar as it suggests that the witness has told two stories, at least one of which must be false, it suggests that the witness has a generally tendency to lie, so that other aspects of his present testimony should be disbelieved. 2. Offering Proof – A cross-examiner may ask a witness about a prior statement without showing it to the witness, if the statement was written, and without saying in advance what the details of that prior statement might have been. i) No Need to Show Witness Proof of Inconsistency – FRE 613(a) provides that when examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel 3. Limitations on the Use of Inconsistent Statements – The cross-examiner may accept the witness’s denial or explanation of the prior statement. However he is also given the right to introduce extrinsic evidence of the prior statement. However, when such extrinsic evidence is introduced, there are limitations. i) FRE 613(b) – Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless a. Opportunity to Explain or Deny – The witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon OR b. Interests of Justice – The interests of justice otherwise require. ii) Not Same as a Party Admission – This provision does not apply to admissions of a party-opponent as defined in FRE 801(d)(2). Party admissions can be used as substantive evidence, while under this rule, the prior inconsistent statement may only be used for impeachment purposes. 4. Pre-Arrest Silence CAN be used as an Inconsistent Statement – The Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant’s credibility when he voluntarily takes the stand in his own defense. No governmental action induces a suspect to remain silent before arrest. Ex: D stabbed and killed another man (Redding). D claimed that the stabbing was in self-defense. However, D waited two weeks before reporting the stabbing and turning himself into the police. At trial, the prosecutor used this “silence” for two weeks as evidence to impeach the D’s credibility claiming that D would have spoken out sooner if he had really killed in self-defense. D claims on appeal that this violated his 5th Amendment rights b/c guarantees right to remain silent during a criminal trial and prevents the prosecution from commenting on the silence. Held: Here, however, D did not remain silent throughout the criminal proceeding and instead he voluntarily took the witness stand in his own defense. Court held that the evidence was admissible b/c no action induced the suspect to remain silent before his arrest and D voluntarily took the stand. B. Impeachment by Contradiction – Impeaching a witness by contradiction entails a showing that something he said in his testimony is not correct. Sometimes this impeachment is accomplished by cross-examination, but often it is accomplished by extrinsic evidence (another witness’s testimony, writing, etc.). 1. “Collateral Issue” Rule – A party may not introduce extrinsic proof that particular details of a witness’ testimony are false unless those details involve a topic that could be subject to proof [i.e. relevant] even if the witness had not referred to them. i) Summary – In other words, the topic on which a party seeks to introduce evidence in contradiction to a witness’s testimony must be a topic that would be relevant in the trial whether or not a witness had earlier given testimony about it. ii) Duel Relevance – Courts generally exclude counterproof that contradicts only on a collateral point. In effect, they require a “duel relevancy” of evidence offered to contradict a witness, for such proof must tend not only to prove that he lied or erred, but also to prove some other point that could make a difference in the case. Ex: D was charged with a robbery that took place in Seattle on July 14. On behalf of D, W1 testified that he operated a restaurant in Portland, that D was in the restaurant at such a time on July 14 that he could not have been in Seattle at the time of the robbery; and that D was in the restaurant every day for the two months prior to the robbery. To impeach W1 by contradiction, the prosecutor offered testimony by W2 (police detective) who testified that D admitted to having been in Seattle on July 12, so W1’s testimony on this point was incorrect and W1’s credibility would be impeached. Held: W2’s testimony should not have been admitted – the prosecutor was entitled to cross-examine W1 to try to show that he was wrong about D’s June 12th location; the but the prosecutor was not permitted to impeach W1 by the use of “extrinsic evidence” (i.e. testimony by other witness) since the issue was “collateral” to the main issues of the case. iii) Physical Evidence – The collateral issue rule also bars the use of physical evidence, including documents, to impeach by contradiction. Ex: In the facts above, suppose to impeach W1, the prosecution supplied a credit card slip from June 12 th at 1:00 PM with D’s signature, showing that D was in Seattle at that moment. Against, assume that D never denied being in Seattle on June 12, so that the only effect of the physical evidence was to show that W1’s testimony was wrong. The collateral issue rule should bar the prosecution from using the physical evidence to impeach W1 on this collateral issue. 2. Application of “Collateral Issue” Rule – Extrinsic evidence about collateral matters is not admissible unless a theory or relevance other than impeachment by contradiction is available. Thus… i) Applicable – The collateral issue rule applies to: prior bad acts (no conviction), prior inconsistent statements, and direct contradiction of testimony. ii) Not Applicable – The collateral issue rule does not apply to: bias, prior convictions, bad character for truthfulness, sensory or mental defects, and principal witnesses (i.e. those put on stand for other reasons that to merely contradict). 3. Covered under FRE 403 – The FRE do not have any explicit “collateral issue” rule. However, the trial judge has general discretion under FRE 403 to exclude evidence whose probative value is substantially outweighed by confusion of the issues or by considerations of undue delay or waste of time. Thus, this discretion allows the judge to keep evidence out that is only relevant to a collateral issue in the case. VI. REPAIRING CREDIBILITY A. Rehabilitation – A party may support the credibility of its witness only if that credibility has previously been attacked by the other side and the rehabilitative evidence responds as directly as possible to the theory of the impeaching evidence. 1. FRE 608(a) – The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to CHARACTER for truthfulness or untruthfulness, AND (2) Evidence of truthful character is admissible only AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise 2. Opinion or Reputation, Not Specific Acts – Much like other situations, only opinion or reputation evidence is permitted to rehabilitate a witness. Evidence of specific instances or acts is inadmissible. Ex: W testifies on behalf of D. P asserts, either on cross-examination of W or by separate direct evidence, that W has a romantic attachment to D and is therefore biased. D may now rehabilitate W’s credibility by showing that W is not romantically interested in D. This may be done either by W’s own testimony or by extrinsic evidence (e.g. testimony from W’s best friend that W has never indicated interest in D). B. Anticipating Impeaching Attacks – Courts have held that the first of these conditions is not violated when a party anticipating an attack seeks to minimize the impeaching impact it by bringing out on direct examination the points he expects the cross-examiner to raise. C. Evidence of Good Character – Evidence that a witness has a good character for truthfulness is more likely to be accepted when the impeachment relates to the witness’ general bad character for truthfulness than when it merely casts doubt on the accuracy of his testimony in the present case. 1. Permitted when Attack on General Veracity – If a witness is attacked by evidence that the has a bad reputation for truthfulness, that a second witness has a bad opinion of the first witness’ truthfulness, that the witness has been convicted of a crime, or that he was committed a prior bad act, evidence of good reputation generally will be admissible. 2. Not Allowed when Attack on Present Testimony – Where the attack is merely on the witness’ testimony in the present case, and does not assert that the witness is generally unreliable, evidence of good reputation will probably not be allowed. I. HEARSAY A. Generally – Hearsay is an out-of-court statement or assertive conduct that is offered in court to prove the truth of the matter asserted. In general, hearsay is not admissible unless it falls within some exception. 1. FRE 801(c) – Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted 2. Rationale – The trier of fact may only be asked to believe those statements made by witnesses testifying at trial. The fact-finder may not be presented with out-of-court statements and asked to believe that the statements are true. i) Policy Reasons to Exclude Hearsay a. Absence of Cross-Examination b. Absence of Demeanor Evidence c. Absence of Oath ii) Risks Associated w/ Out-of-Court Statements a. Risk of Misperception b. Risk of Faulty Memory c. Risk of Misstatement (i.e. Risk of Ambiguity or Faulty Narration) d. Risk of Distortion (i.e. Risk of Outright Lying, Deception, Insincerity or Lack of Candor) 3. “Truth of the Matter Asserted” – The purpose of which the declaration is offered is dispositive. An out- of-court declaration may be offered into evidence for many purposes other than to prove the truth of the matter asserted in the declaration. Under these other circumstances, there is not hearsay problem. Ex: I spoke to my bro in London by phone last yr. What did your bro say? Bro said it’s raining in London. Question is whether or not that is HS depends on what inference we draw from that statement. If issue is whether or not bro is alive, that statement goes directly to the conclusion, and therefore, there is no HS problem. However, if issue is whether or not it was raining in London on that particular day, we have HS problem b/c proponent of evidence is trying to prove the truth of the matter asserted B. “Statement” for Purposes of Hearsay – Hearsay only applies where there has been an out-of-court statement. 1. FRE 801(a) – A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion 2. Conclusions Based on Out-of-Court Interviews – Out-of-court statements phrased by a witness as a conclusion are usually considered as equivalent to a quotation in court of what various people said out-of- court. Thus, this conclusion would be inadmissible hearsay. 3. Assertive Conduct – There are many illustrations of conduct that, although nonverbal, is nonetheless intended as an assertion. Such conduct is universally recognized as capable of being hearsay since its use presents the same dangers as do the use of verbal assertions. Ex: Standard Nonverbal Cues – Including nodding or shaking the head or shrugging the shoulders to answer a question; also includes pointing as a means of identifying or selecting,; Coded Signals – lighting lanterns to signify that the British are coming 4. Non-Assertive Conduct i) Traditional View: Broad Interpretation – Historically, courts have held broadly that proof of a fact which is relevant only as implying a statement or opinion of a third person on a matter in issue is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible. Wright v. Doe d. Tatham (1837) – Case involving a disputed will. One party claiming that the decedent was incompetent to form his own will. The other party claimed oppositely. To prove that decedent was competent, the steward (D) introduced three letters from people who had all died before trial. P objected saying that the letters were inadmissible. Held: Would be admissible if to prove that the letters were sent. However, this is not the issue. Rather, the letters imply an opinion of a third person and to prove the competency of the old man. For this purpose, they are merely hearsay evidence. Ex: The conduct of a deceased captain on a question of seaworthiness, who, after examining every part of the vessel, embarked in it with his family. This would have been held as nonassertive conduct, but nevertheless, inadmissible hearsay. ii) Modern View: Focus on Intent – Modern courts have tended to attach greater importance to the fact that in a “statement implied from conduct” situation, there is no intent to make an assertion. Under the FRE, Congress made it clear that conduct must have been intended by the person as an assertion. a. Problems with Narrow Interpretation – In many cases the question of whether the conduct was or was not intended as an assertion will be unclear. Furthermore, there will be remaining questions about whether the statement was sincere and whether it was based on faulty memory or perception. b. Assertive Nature of Hearsay Rule – In situations where the intent is unclear, the courts will be free to decide either that (1) the actor did intend to assert the proposition his conduct is offered to prove, and thus that the offered evidence is hearsay; or (2) that the actor had no such intent, and thus that the evidence is not hearsay. 5. Silence – A person’s silence may in some situations lead to the reasonable inference that a particular fact is true. The issue arises most frequently in the two contexts… i) Absence of Complaints (i.e. “Negative Hearsay”) – The absence of complaints by others is often used to prove that a danger or defect did not exist. This absence is usually admitted over hearsay objection. a. Relevance – Even though this type of conduct does not have sufficiently strong hearsay problems to exclude it, there is still a real issue of relevancy. ii) Silence of Accused – The silence by a person accused of something is often used to prove that the person was guilty. This silence is only relevant as proof of guilt, however, if before Miranda warnings. C. Indirect Hearsay – The system tolerates some testimony by a witness that lacks personal knowledge if the testimony is offered to develop necessary background. However, the use of such indirect hearsay is not acceptable if it is used to prove contested and substantial issues in the case. Ex: Stating when and where witness was born, family background regarding immigration, etc. are all permissible indirect hearsay D. No Inanimate Hearsay – When testifying about inanimate objects, although there can be objections regarding relevance, foundation, and the accuracy of the object, there cannot be hearsay objections Ex: “The clock said it was midnight.” You cannot cross-examine the clock. Nevertheless, no hearsay problem E. Multiple Hearsay – An out-of-court declaration may quote or paraphrase another out-of-court declaration. If each of the declarations is offered to prove the truth of the matter asserted, the statements will amount to “multiple hearsay.” The evidence will be inadmissible if any of the declarations are hearsay that does not fall within one of the exceptions. If both or all are covered by an exception, the statement is admissible. 1. FRE 805 – Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules II. NOT HEARSAY A. Generally – Under FRE 801, a statement is hearsay when “offered to rove the truth of the matter asserted.” The negative inference by this definition is that a statement is not hearsay when offered for any other purpose. B. Nonhearsay Uses – There are many nonhearsay uses, but they generally fall in six categories… 1. Impeachment by Prior Statements – Courts universally take the view that prior inconsistent statements are not hearsay when offered to impeach a witness. 2. Nonassertive Conduct – Modern courts take the view that there must be intent by the declarant to make an assertion. Without such intent, the statement will be deemed as not hearsay nonassertive conduct. Ex: Issue in case regarding insurance and what time the deceased died. To prove that the deceased died before midnight, the proponent says that there was black crape paper put over the porch before midnight. Whether the action will be deemed hearsay depends on whether the ritual was meant as an assertion. Court will probably declare it to be hearsay here. Ex: A doctor pulling sheet over a person’s body is done, arguably, to signify a death. This conduct is probably not hearsay, however, because it is more likely a reflexive action rather than assertion of death. 3. Verbal Acts Effectuating A Legal Result – If words said effectuate a legal result under a certain body of substantive law (i.e. have independent legal significance), then words will not only be relevant but will also not be determined as hearsay. Ex: L leased part of his farm to C for payment of 40% of the corn C could grow. C borrowed $ from bank, giving security interest in part of his crop and ultimately defaulting on the loan. The bank repossess a double crib of corn and sold it to P. Now L sues P and bank for conversion. As proof, L offers his own testimony that he and C had gone to the field where C had pointed to the corn and said “this belongs to you sir.” Objection made claiming hearsay. Held: This is not hearsay because the words themselves (“this is your corn”) effectuated a legal result (i.e. the transaction). It is not being offered to show the truth that C believes the corn was L’s, but rather it was offered to show under sharecropping law that the corn actually belonged to L. 4. Effect on Listener or Reader – If a statement is offered to show its effect on the listener, it will generally not be hearsay. This is so because the statement is not being offered to prove its truth, merely to prove the effect that the statement (whether true or false) had or should have had on the listener. This principle applies where the out-of-court declaration is offered to show that the listener (or reader) was put on notice, had certain knowledge, had a certain emotion, behaved reasonably or unreasonably, etc. Ex: While working on a construction job, J thought he smelled the odor of natural gas from the direction of a pipeline. Although J had not yet decided to call the gas company, a man appeared on the scene shortly and said “I’m from Interstate Gas Company. Can you show me the pipeline? We’ve had reports of leaks in the area.” J took man to pipe when man lit a cigarette and blew them up. J sues Gas Company on negligence theory and Gas Company defends claiming contributory negligence. J offers to testify what man told to him before explosion as proof that man was agent of gas company and the J’s behavior was reasonable. Gas Company raises hearsay objection. Held: this statement is hearsay b/c the statement is meant to be introduced to prove the truth of the matter asserted. NOTE: This will be allowed later, however, under an agent exception to the hearsay rules. Ex: What about the statement “Can you show me the pipeline?” Held: The statement is only being introduced to show the effect on the listener and not truth of assertion (i.e. the effect was J being near the line; defeats any claim of contributory negligence) 5. Verbal Objects – Ex: Three guys were charged with drug offenses and conspiracy. P is trying to prove that S and N knew each other. Testimony by barmaid that she saw N with another man multiple times, and then she subsequently pointed out the other man to undercover cops and said “I’ve seen them in the bar on multiple occasions.” Undercover police then testified that the man identified is actually S. D claims hearsay b/c out-of-court statement introduced to prove the truth of the matter asserted. Held: Barmaid’s and police’s testimony are both not hearsay because both can be cross-examined and are testifying from their own memories. There is no problem in introducing multiple witnesses’ testimony to prove a fact so long as each testifies from their own memory. Ex: Blind man in bar and was trying to be robbed. Blind man grabbed the D and called for help. During trial, blind man testifies that he grabbed “a man” and then a police officer testifies that D was the man that the blind man had grabbed. Held: No hearsay b/c current testimony is based on their own current memory, both are testifying, and each can be crossed 6. Circumstantial Evidence of State-of-Mind, Memory, or Belief – Statements introduced to show the state- of-mind, memory, or belief of the declarant are not barred by the hearsay rule. These statements are not usually used to prove the truth of the matter asserted, and rather, they are introduced as circumstantial evidence intended to prove some other issue. i) Knowledge – Most frequently, such statements are introduced to show the declarant’s knowledge of some matter, as manifested by his statement. The more unique the circumstances, the more likely that the statement will be admissible as knowledge. Ex: D is accused of having enticed O, a young girl, to come to his room and then having sexually assaulted her. The prosecution seeks to introduce O’s out-of-court statement describing the room and its contents (including a paper mache man), in order to show that O was in the room. Other evidence independently establishes that the room and its furnishings exactly match O’s descriptions of them. Held: O’s out-of-court description is not hearsay, because it is not offered for the truth of the matter asserted (i.e. what the room really looked like) but rather to show that O knew what the room looked like and therefore, by inference, that she must had been in it. ii) State-of-Mind – Other states of mind of the declarant can be shown by her statement and without violating any rule barring hearsay. For example, the declarant’s sanity may be shown by his statements. Similarly, a declarant’s statement may be used to show that he felt a certain emotion, such as fear. Betts v. Betts (1970) – In a custody fight between W and H for their daughter, Tracey, H tries to show that he should be given custody because W’s paramour, Ray, is a violent criminal who has probably murdered H and W’s other child, James. During the trial of Ray for this murder (which ended in a hung jury), Tracey was placed in a foster home. H now offers the testimony of the foster mother that when she told Tracey that her mother and Ray had gotten married, Tracey started crying and said, “He killed my brother and he’ll kill my Mommy too.” W objects to this statement as hearsay. Held: The declaration is not hearsay. Tracey’s out-of-court statement was not admitted to prove the truth of the assertion she made (i.e. that Ray had killed her younger brother) but merely to indirectly and inferentially show her mental state at the time III. PROBLEMATIC HEARSAY ISSUES A. “Indirect Uses” of Statements – While FRE 801 resolves many issues, some situations are problematic. The majority of these situations involve “indirect uses of statements.” These cases concern words which are introduced to prove something that seemed to be on the speaker’s mind but is not asserted in the statement. 1. Advisory Committee Notes say Indirect Uses is Not Hearsay: ACN to FRE 801 – Verbal conduct which is assertive but offered as a basis for inferring something other that the matter asserted [is] also excluded from the definition of hearsay by the language of subdivision (c) [defining hearsay]. B. Statements with Performative Aspects – There is an argument that these “indirect use” statements should be introduced as nonhearsay if they do something independent of what they assert. Thus, the purpose of these types of assertions (or conduct) is not to prove the truth of what was asserted but rather to prove the truth of some factual proposition that is inferred from the matter directly asserted. United States v. Singer (1983) – District court admitted into evidence an envelope addressed to Sanzenski (D) and “Carlos Almaden” (D, a.k.a. Arturo Izquierdo), containing notice to terminate their tenancy. It was introduced to show that Carlos lived with Sanzenski. D objected that envelope was inadmissible on hearsay grounds. Held: Some nonverbal conduct may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. If the letter were submitted to assert the implied truth of its written contents (i.e. that Carlos Almaden lived at the same house) it would be hearsay and inadmissible. It is, however, admissible hearsay because its purpose is to imply from the landlord’s behavior (i.e. mailing letter to Carlos) that Carlos lived there. Mailing the notice was the action with independent significance beyond what the notice actually said. Ex: Answering Bookie Calls – When law enforcement agents bust illegal gambling or drug operations, they routinely take incoming phone calls. In the former situation, a voice at the distant end tries to place a bet. In the latter, the voice tries to lien up a drug purchase. Held: If the officer who takes the calls testifies to the substance of what the callers say, as proof that people normally on the premises take bets or sell drugs, most courts say that this is nonhearsay. This is because the act of calling has independent significance and performative aspects. C. Lying – Most courts consider lying as not hearsay. Where the defendant himself lies to the police, the hearsay objection is irrelevant because what a party to a suit says is always admissible against him. Ex: Greg is identified by an FBI witness as one of a group of men who robbed the bank. When the FBI goes to Greg’s house, however, his wife tells them that “he is in Denver b/c his mother died and he will be back the day after tomorrow.” Subsequently, another suspect confesses that Greg is at his brother’s house hiding out. The FBI finds Greg there. At trial, P tries to introduce wife’s statements as evidence of cover-up. Held: Police claim that relevance of the statements is not whether they are true or not (i.e. not trying to prove whether husband was in Denver). Rather, police are trying to use the information to prove that the wife is involved in the cover-up. D will argue, however, that the police are jumping to the conclusion that the statement was a lie. It could be the truth (i.e. husband could have lied to the wife). Thus, there is a danger w/out cross examination that she could be telling the truth. If truth, then hearsay. Most courts would consider this as not hearsay. Some courts would agree w/ police b/c not a verbal act offered for purpose of truth of matter asserted. Other courts would examine the risks of admitting evidence. This determination depends on how much weight is put by the court on the value of cross-examination of this particular witness D. Significance of Public Disclosure – Public disclosure of a fact or circumstance may have implicit, underlying assertions to it as well. For example, public disclosure is more likely to occur when there is an absence of criminal activity and guilt (i.e. proof of consciousness of innocence). Ex: Bruno and others are charged w/ theft of an airplane and w/ importation of marijuana. Evidence indicates the plane was stolen from FL and flown to Bruno’s house in AK. There, fed’s attached tracking device. Arrests were made subsequently. Bruno contends that he had nothing to do with the drugs, that the plane had to be emergency landed on his property, that he accepted no money for letting the plane stay there while getting repaired, and that he knows nothing about the theft. Bruno calls a witness to testify that he had publicly told people about storing the plane and that his is proof of his innocence. Arguments – Gov’t would argue “statement” was an assertion and covered under hearsay. However, D will argue that the statement was actually “conduct” because it proves that D was innocent of drug smuggling (i.e. used as proof of consciousness of innocence rather than proof of the matter asserted) E. Using Statements to Prove Matters Assumed – Finally, statements are sometimes introduced to prove the truth of matters that would be necessarily assumed by the declarant to cause such a statement to be made. This often comes into context where a statement is made which would have only been made if defendant was guilty. Ex: Parran and Reynolds were charged with conspiracy to defraud the government by cashing unemployment compensation checks belonging to others. Federal agents had been tipped by a photography studio, where the clerk reported that two men were trying to get photo ID’s but did not know what names and numbers they wanted to use. Watched by agents, the two emerged from the studio and then entered a bank to cash the checks. Agents arrested Reynolds. When Parran approached, Reynolds shouted, “I didn’t tell them anything about you.” The government offered this statement in a joint trial arguing that the statement was not offered for the truth of what the statement asserted. Held: Court ruled that the statement was hearsay. Statements containing express assertions may also contain implied assertions qualifying as hearsay and susceptible to hearsay objections, and the probative value of what Reynolds said depends on the truth of an assumed fact that it implies, and thus making it inadmissible hearsay. United States v. Pacelli (1974) – Pacelli was charged with alleged conspiracy and the killing of Patsy Parks, a witness who had testified in a grand jury used to indict Pacelli on drug dealing charges. D claimed prejudicial error because Lipsky was permitted to testify about the conduct and statements of Pacelli’s wife, uncle, and friends during a meeting subsequent to the killing. Held: Court ruled that the statements are hearsay. While the dangers of insincerity may be reduced where implied assertions (rather than express) of the third parties are involved, there is the added danger of misinterpretation of the declarants’ belief. Here, the declarant’s opportunity and capacity for accurate perception or his sources of information remain of crucial importance. Pacelli was entitled to cross-examine the third party declarants in order to test the validity of the inference – which the government sought to have the jury draw – that he had told the declarants he had killed Parks Without ability to cross-examine, it is unknown whether there were other reasons for the same action (i.e. other co-conspirators that could have killed Patsy) IV. HEARSAY EXCEPTIONS GENERALLY A. Generally – Even if a statement is ruled hearsay under FRE 801(c), it may nevertheless be admissible. A series of exceptions enable a significant amount of statements to be admissible even though they are introduced to prove the matter asserted. 1. Four Main Groups of Exceptions: i) Prior Statements – The first group contains three exceptions, and these apply to certain prior statements by testifying witnesses. Rule 801(d)(1) defines theses exceptions, and makes these statements “not hearsay” even though they fulfill the basic definition. ii) Admissions Doctrine – The second group contains five exceptions that together make up the “admissions doctrine.” These five exceptions are set out in Rule 801(d)(2). These too fulfill the basic definition of hearsay but are nevertheless defined as nonhearsay. iii) Unrestricted Exceptions – The third group contains 24 unrestricted exceptions listed in Rule 803. Statements that fit these exceptions may be offered to prove what they assert regardless whether the declarant testifies, and regardless whether or not he could be produced at trial to give testimony. iv) Unavailable Witness Exceptions – The fourth and final group is comprised of five more exceptions set out in FRE 804(b), but these may be invoked only if the declarant is “unavailable as a witness” as defined under FRE 804(a). V. PRIOR STATEMENTS OF AVAILABLE WITNESS A. Generally – FRE 801(d)(1) defines as “not hearsay” three different kinds of prior statements by testifying witnesses. 1. FRE 801(d)(1):Prior Statements by Witness – A statement is not hearsay if…[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is… (A) Inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) One of identification of a person made after perceiving the person B. Prior Inconsistent Statements – A prior statement is not hearsay if three conditions are met: (1) The witness must now be CROSS-EXAMINABLE concerning the prior statement; (2) The statement must be INCONSISTENT with his present testimony; and (3) It must have been made UNDER OATH in a PRIOR PROCEEDING or DEPOSITION. 1. Substantive v. Impeachment – When using an inconsistent statement under FRE 801(d)(1), the evidence may be used not only for impeachment purposes, but further, as substantive evidence against the defendant. 2. Rationale – In determining whether evidence should be admitted, reliability is the key. In many cases the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness 3. Inconsistent Statements – The word “inconsistent” should not be read to include only statements diametrically opposed or logically incompatible. Inconsistency may be “found in evasive answers, silence, or changes in positions.” A purported change in memory can produce “inconsistent answers.” Ex: Particularly in a case of manifest reluctance to testify, “if a witness has testified to [certain] facts before a grand jury and forgets them at trial,” his grand jury testimony falls squarely within FRE 801(d)(1)(A). 4. Prior Proceedings – Prior inconsistent statement must have occurred at a trial, hearing, or proceeding, or in a deposition. There is considerable disagreement, however, about what constitutes a “proceeding.” What is important is the solemnity of an oath coupled with some sort of inherent regularity in the proceeding. i) Cross-Examinability Not Required – Prior inconsistent statements may be admissible even wehre there was no cross-examination, or even an opportunity for cross examination. Ex: Most federal cases exclude stationhouse declarations because they lack inherent regularity. However, prior statements made during a preliminary hearing, immigration proceeding, or grand jury inquest have been ruled admissible. State v. Smith (1982) – Assault victim (Conlin) wrote out a statement on a form supplied by a detective in which she named defendant (Smith) as the assailant. Conlin then signed under oath before a notary. At Smith’s trial one month later, Conlin named another man as the attacker. The trial court allowed prior inconsistent statement to be used as substantive evidence and ruling that it was not hearsay. Jury subsequently found Smith guilty. Held: The judge granted a new trial saying that FRE 801 did not authorize the statement’s admissibility as it was not given in a “proceeding” 5. Memory Loss does Not defeat Cross-Examinability – Supreme Court has ruled that cross-examinable requirement is satisfied even if witness has forgotten the underlying events. 7th Circuit, however, thinks cross-examination requirement means the witness must be able to give some kind of response to questions. United States v. Owens (1988) – Involved a prison inmate who couldn’t remember the assault but did remember identifying his assailant to FBI agents in the hospital. Foster could not remember the assault, except for “feeling the blows to his head and seeing blood on the floor. Still, the Court rejected the argument that Foster was not sufficiently cross-examinable. i) Confrontation Clause Issues – Remember to check for confrontation clause issues, however, which would nevertheless exclude the testimony. C. Prior Consistent Statements – Prior consistent statements by a testifying witness are not hearsay if… (1) The witness must CROSS-EXAMINABLE at trial concerning the prior statement (2) The statement must be CONSISTENT with his present testimony (3) The statement must be offered to REBUT a charge of RECENT FABRICATION or IMPROPER INFLUENCE or MOTIVE. 1. Substantive Proof – Where this rule applies, it permits substantive use of a prior consistent statement by a testifying witness, so the statement may be taken as proof of what it asserts. 2. Statement MUST be made PRE-MOTIVE – The prior consistent statement, to be admissible, must have been made before the recent fabrication or improper influence or motive came into existence. i) Limits of Admissibility – Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely b/c she has been discredited Tome v. United States (1995) – Tome was convicted of sexually abusing his four-year-old daughter. P sought to show that Tome abused daughter while she was in his custody but AT (daughter) was very reluctant to testify. P offered testimony by six witnesses describing seven statements by AT describing the abuse. The prior statements were admitted under FRE 801(d)(1)(B) on the theory that they refuted the claim that wishing to live with her mother motivated the testimony. Held: The consistent statements must have been made before the alleged influence or motive to fabricate arose. Here, there were never any statements made without the mother’s underlying influence and thus there wasn’t recent fabrication or improper influence b/c it existed from the start. Therefore, the statements should not be admitted i) Difficulties in Interpretation – Confusion stems from the fact that prior consistent statement can be used either to rehabilitate or as substantive evidence, or both. This is because the statements could be used to rehabilitate (on the theory that they show consistency by the witness) or as substantive evidence. a. Unresolved Question: Can a prior consistent statement be brought in outside the scope of the rule? If the P can show significant relevance for rehabilitation purposes to the statement, is it admissible? What about for substantive purposes? Ex: C and A are suspected of conspiring to distribute heroin. During a meeting with an undercover agent, both women went to bathroom to test the heroin but only C was carrying it. T (undercover) testifies that he couldn’t remember. Both C and A testify that it was C who had it. During rebuttal, P offers evidence of a tape recording of T moments after the arrest where he said that the “black and white dress” had it (which was A). A raises the hearsay objection b/c motive the same (deliberately false testimony by the agent to implicate both women). Held: Prof. Rudovsky thinks that evidence is admissible b/c rebutting charge of no memory. Thus, the evidence is probably relevant too. Lower courts, however, are split on the issue and the testimony may be only admitted for the purpose of rehabilitation D. Prior Statements of Identification – Federal Rules creates what amounts to a hearsay exception for previous statements of identification made by a witness… (1) AFTER PERCEIVING the subject, (2) Provided that the witness is subject at trial to CROSS-EXAMINATION concerning the statement. 1. Substantive Evidence – The prior identification exception allows the admission of pretrial identification, not merely as corroborative evidence, but also as substantive proof of identity i) Rationale –Identifications consisting of non-suggestive lineups, photographic spreads, sketches, or similar identifications made soon after the offense are more reliable than in-court identification. Admitting these prior identifications therefore provides greater fairness to both the prosecution and defense in a criminal trial. Their exclusion would be detrimental to the fair administration of justice. State v. Motta (1983) – Iwashita, a cashier on duty at a coffee house, was robbed at gunpoint. Iwashita gave a description of robber to the police who arrived at the scene soon thereafter. Iwashita also met with an artist who drew a composite sketch. Later, Iwashita picked D’s photo from a photographic array of about 25 pictures and also confirmed this pick during a preliminary hearing. Finally, she pointed out D during trial as the one who robbed her. D presented an alibi defense at trial that he was in a nightclub during the time of the robbery. However, D was found guilty. D contends that the trial court erred in admitting the sketch saying it was hearsay. Held: Court holds that the sketch is admissible as a prior statement of identification; this is because the witness “adopted” the sketch as her illustration of identification. 2. No Oath, Proceeding, or Influence Requirement – Prior identifications are easier to get into evidence that are prior inconsistent or consistent statements. This is because it prior ID need not have been made under oath, need not have been part of a proceeding, and can be completely consistent with the at-trial testimony of the identifier whose truthfulness has not been attacked. i) Third Party (Officer) Testimony – Although a third party involved in the identification (e.g. officer conducting lineup, sketch artist, etc.) may testify, the FRE only require that the identifying witness do so 3. Ability to Cross-Examine – Statements of identification are only allowed if declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement. This brings up the same concerns as are present in prior inconsistent statements with memory loss (see supra). Courts have usually ruled that if she can remember anything about the line-up then the testimony of identification is admissible (however, some Courts might exclude b/c not really sufficient to meet Confrontation Clause) VI. ADMISSIONS BY A PARTY OPPONENT A. Generally – The FRE define all admissions by a party opponent as not hearsay. 1. FRE 801(d)(2): Admission by Party-Opponent – A statement is not hearsay if…[t]he statement is offered against a party and is… (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). 2. Rationale – These exceptions are not based on the normal rationale for admissibility (e.g. cross- examability, etc.). Rather, it is probably based on the adversarial nature of litigation; once litigation commences, you are responsible for the statements that are made both in and out of court 3. Distinguish from Declarations Against Interest – An admission will usually be against the declarant’s interest at the time it is made, but this is not a requirement. Even statements that seem neutral or self- serving at the time they are made may be introduced against the party who made them. Furthermore, the admissions doctrine applies even when a witness. B. Individual Admissions – The clearest kind of admission is defined under FRE 801(d)(2)(A): a party’s own statement, offered AGAINST him. 1. Broad Reach of Rule – There are very few limits (if any) to the reach of this rule. Therefore, most likely, admissions would be admissible even if made when party was drunk, severely injured, drugged, etc. i) Conduct as Admission of Guilt – Conduct by a party outside the courtroom (e.g. a criminal defendant’s flight after a crime, or his attempt to obstruct justice) is admissible against him in a criminal proceeding as admissions. Ex: Martin left his truck at C’s Auto Repair in Tupelo, MI, b/c the gas tank was breaking. C, himself, was in Oxford, MI, at the time. While the truck was being repaired, employee D lit the place on fire including M’s truck. M sues C to recover the loss of the truck. As proof that D’s negligence started the fire, M calls an insurance adjuster named E, who C had spoken to and admitted that the fire started when D dropped a welding torch. C raises the hearsay objection and M invokes admissions doctrine. Held: Anything that C says comes in as substantive evidence (even though that there is no personal knowledge, could be a pure guess or assumption, and could be out of self-interest). 2. Representative Capacity – A statement is admissible against its maker, regardless of whether the statement was made in an individual or representative capacity, and regardless of in which capacity suit is brought. Ex: If a trustee gossips to a friend about some property in the trust (a statement made in the trustee’s individual rather than representative capacity), it may be used by the other side in a suit involving the trust, where the trustee is sued in his representative rather than individual capacity. 3. Pleadings – The statements a party makes in his pleadings are treated as admissions for most purposes, and thus may be admitted as evidence against him. i) Guilty Pleas – A guilty peal that is not withdrawn is generally admissible as an admission. This is true both in the case where the plea is introduced as an admission and any subsequent civil or criminal trials. a. Withdrawn Guilty Pleas – FRE 410 excludes, from any civil or criminal proceeding, withdrawn guilty pleas, pleas of nolo contendrere, and any plea bargaining statements by the accused. 4. Multiparty Situations – A defendant may be severely prejudiced by an admission or confession made by a codefendant. Thus, the modern approach is to not allow admissions from codefendants to be admissible against the other parties to the litigation. i) Rationale – There is prejudice that is inherent in codefendant admissions. This cannot be dispelled by cross-examination if codefendant does not take the stand. Furthermore, there is risk that the jury will not, or cannot, follow limiting instructions and that the consequences of failure will be so vital to the defendant (the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are offered to the jury), that such admissions should not be admissible. Bruton v. United States (1968) – In trial of B and E for armed postal robbery, a postal inspector testified that E made an oral confession indicating in effect that “B and I committed the robbery.” This confession was obtained in the course of interrogating E while he was in jail on state charges. Held The confession was admitted as evidence against E, but the judge told the jury that it was hearsay against B and could not be considered “in any respect” against him. Ex: N works for Ace Building Supplies, where his duties include making deliveries in a pickup truck. While working one day, N negligently runs over OB. N has long been on thin ice at Ace, and a month later he loses his job for unrelated reasons. Six months later, N tells OB that the brakes failed and that he was speeding. OB sues both N and Ace for injuries. At trial, OB offers N’s statement in evidence. Ace objects for hearsay. Held: N’s statement regarding speeding is clearly admissible against N. However, under the substantive tort law of respondeat superior, liability will be imposed on Ace as well regardless of whether it is admitted as evidence against Ace. The statement regarding the failing of brakes, however, is not admissible to either party b/c (1) it has no bearing on whether N is liable (b/c Ace would be responsible for the brakes) and (2) it is hearsay to Ace. ii) Redaction as Alternative – Redacting a confession by one defendant to delete any reference to another is a permissible alternative technique of admitting the evidence. a. Limitation – However, the Supreme Court has ruled that simply replacing a name with an obvious blank space or a word such as deleted leaves statements that closely resemble un-redacted statements that the law must require exclusion. C. Adoptive Admissions – Under FRE 801(d)(2)(B), if a person adopts another’s statement, then the person becomes the “declarant” and the statement becomes his own. Thus, the statement, actually made by another, will be admissible as an admission against that person. The adoption may be done either expressly or implicitly. 1. Implied Adoptions – In situations regarding implied adoptions, the test is whether, taking into account all circumstances, defendant’s conduct justifies the conclusion that he knowingly agreed with the statement. i) Factors – The statement must have: been heard by the adopting party; been understood by him; the subject matter within his knowledge; impediments must not be present (e.g. confusion/injury); and the statement, if untrue, would call for a denial under the circumstances. 2. Silence – Where a party remains silent in the face of a statement, all courts agree that the mere fact that the party remained silent does not by itself amount to an adoption i) Test: Denial be Reasonably Expected – Under the total circumstances, whether probable human behavior would have been for the defendant promptly to deny the statement if it had not been true. U.S. v. Hoosier (1976) – D is charged with bank robbery. W testifies that: prior to the robbery, D told him he was going to rob a bank; three weeks after the robbery, he saw D with the money and diamond rights; and in the presence of D, D’s girlfriend said, regarding D’s sudden affluence, “that ain’t nothing…you should have seen the money we had in the hotel room.” P offers the girlfriend’s out-of-court statement as an admission by D, on the theory that D, by remaining silent when the statement was made, adopted it. Held: The statement was admissible. Under the total circumstances, the court believed that probable human behavior would have been for D promptly to deny his girlfriend’s statement if it had not been true. ii) Exception – In some circumstances, a person’s silence in the face of an inculpatory statement does not amount to an adoption. If a person was in custody, had been read Miranda rights, and knew that anything he said might be used against him, silence is ambiguous and thus not an adoptive admission. Doyle v. Ohio (1976) – Two D’s (D and W) were convicted of selling marijuana to B, a well-known street person acting as a narcotics informant. D’s contend at trial that, not only did the agents not see the transaction, but furthermore, that they were framed by B and that when D tried to tell him that they didn’t want the drugs, B threw them the case in the car. W testified that he didn’t say anything like this to agents and he remained silent after being read his rights. P tries to use this silence as proof. Held: Silence in the wake of Miranda warnings may be nothing more than the arrestee’s exercise of these rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. iii) Pre-Arrest Silence – This exception, however, does not apply to pre-arrest silence. Thus, a D’s decision to remain silent before being arrested under circumstances where a reasonable person would immediately deny involvement can be used as an adoptive admission to guilt. 3. Unsolicited Mail – Mail stating “failure to respond will be deemed acceptance” will not subject someone to “adoption” b/c (1) reasonable person would just throw out the mail, and (2) contract substantive law. D. Admissions by Speaking Agents – Under FRE 801(d)(2)(C), an admission is not hearsay if the statement is made by a person authorized by the party to make a statement concerning the subject. Principles of agency and notions of relevance indicate when and to what extent such words should be admissible. 1. Expressly Agreed – This subsection only allows admissions where the party has expressly agreed that his agent may make a statement on the particular subject. 2. Corporations – The most common application of this rule is where the party is a corporation that has designated one of its employees to speak for it on a certain matter. Ex: If X Corp’s plant explodes, and X appoints Employee to furnish the police with details about what caused the accident, anything Employee says will be admissible against X Corp. Ex: A gets out of a school bus in front of the farm where he lives. M, the bus driver, checks the traffic and, unaware that A is crossing, pulls forward and kills A. Parents of A sue M on negligence theory. Shortly before the statute of limitations was to run, parents file and amended complain including a second count of strict liability against Standard Bus Sales (alleging that the mirrors were positioned in such as was as to preclude full vision). However, parents have named the wrong seller and Standard wins summary judgment. Case goes to trial against M alone. Invoking FRE 801(d)(2)(C), M seeks and obtains permission to read to the jury the allegations about the mirrors. The jury returns a verdict for M and parents appeal. E. Admissions by Employees and Agents – Under FRE 801(d)(2)(D), an admission is not hearsay if the statement was made… (1) By the party's AGENT or servant (2) Concerning a matter within the SCOPE of the agency or employment, (3) Made DURING the existence of the relationship. 1. Agent Or Servant – There is not definition in the FRE or ACN concerning what constitutes an agent or servant. Rather, this is left up to the courts to resolve by applying agency principles. i) Rule Does Not work both ways – Although a statement by an employee will be admissible against its principal, a statement of the principal will not necessarily be admissible against the employee 2. Scope of Employment – The rule only applies to statements by agents or servants that are within the scope of their duties. This phrase does not mean that the exception reaches only statements made while the speaker is at work nor does it required that the speaker have decision-making authority with respect to the matters of which he speaks. Mahlandt v. Wild Canid Survival & Research Center (1978) – Civil action for damages arising out of an alleged attack by a wolf on a child. Daniel (child) was walking near Poo’s house when Sophie, a wolf that Poo was keeping b/c he was the Director of Education for the Wild Candid Survival and Research Center, purportedly attacked him. However, nobody actually saw the attack and witnesses only saw the wolf howling and straddling the boy. The boy did, though, have lacerations to his face and body. Poo went to his director and left a message that said “Sophie bit a boy.” Later he repeated the same. Finally, at a board meeting of Wild Candid, the legal ramifications of Sophie’s biting were discussed. Held: Poo’s statement would be admissible if offered against Poo personally. Furthermore, because the “scope of employment” criterion is very broad, even though not technically doing something for his job, the statement will likely be admissible against against Wild Candid as well. The board’s statements are admissible against Candid because the board is an agent for Candid. However, this statement would not be admissible against Poo (nonparticipating employee). If the admission was thus attempted to be introduced at a joint trial, there is a question of Bruton. 3. Termination of Relationship – Once an employee terminates the relationship, any subsequent statements are no longer admissible. F. Coconspirator Statements – Under FRE 801(d)(2)(E), an admission by one coconspirator will be admissible against all other coconspirators if… (1) The statement was made by a member of the SAME CONSPIRACY as the party against whom it is admitted is a member (2) The statement was made in DURING the course of the conspiracy (3) The statement was made in order to FURTHER the aims of the conspiracy. 1. Criminal & Civil; Conspiracy Charges Irrelevant – The coconspirator exception is available in civil and criminal cases and whether or not they involve charges of conspiracy. 2. Judge Determines Applicability – Existence of the conspiracy, and satisfaction of the other factual requirements, is to be decided by the judge. He must find that these requirements are satisfied by a preponderance of the evidence. i) Methods – The judge can use three different ways to ascertain enough facts to make this determination: (1) he can conduct a mini hearing outside the presence of the jury; (2) by the time the statement is offered, there may already be enough proof in the record to justify the judge in finding that a conspiracy existed; or (3) the judge can admit the statement subject to a requirement that later introduction of evidence will be sufficient to prove that the conspiracy existed. ii) Consider ALL EVIDENCE Including Hearsay Admission – In making a preliminary determination, a court may examine any purportedly hearsay statements sought to be admitted. This evidence, although unreliable in isolation, may become quite probative when corroborated by other evidence. Bourjaily v. United States (1987) – Case involved a drug deal and conspiracy to distribute. FBI informant arranged with Angelo Lonardo (co-D) for a meeting to buy drugs. Lonardo was supposed to arrange a buyer for the drugs. When the sale became imminent, Lonardo stated in a tape-recorded conversation that he had a “gentleman friend” who had some questions about the cocaine and the informant talked to this person. When the deal went down, Lonardo took the drugs from informant to an awaiting Bourjaily (co-D, i.e. the gentleman friend). Then both were arrested. The government introduced the taped conversation under the hearsay exception. Held: When the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence. In making a preliminary factual determination under Rule 801(d)(2)(E), a court may examine any purportedly hearsay statements sought to be admitted. This is because a piece of evidence, although unreliable in isolation, may become quite probative when corroborated by other evidence. A per se rule barring consideration of hearsay statements during preliminary fact-finding is not required. VII. UNRESTRICTED EXCEPTIONS (AVAILABILITY OF DECLARANT IRRELEVANT) A. Generally – FRE 803 sets out a list of exceptions that apply regardless of whether the declarant is available as a witness. 1. Rationale – The rational behind applying these exceptions is that these arise in situations where courts have felt that a witness’ account of an out-of-court statement was likely to be as probative of the issue in question as the declarant’s courtroom testimony, or where the difficulty of proving unavailability or subpoenaing available witnesses was likely to outweigh the incremental benefits of the courtroom testimony. B. Excited Utterances and Present Sense Impressions – The FRE include exceptions for present sense impressions and excited utterances under the theory that there was a connection between the event and the statement that was so close that the declarant had no time to lie or forget, and that he focused his attention on what he described. 1. Excited Utterances – All courts recognize a hearsay exception for certain statements made under the influence of a startling event. In order to find that this rule applies, though, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of recollection and deliberation. i) FRE 803(2) – 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 a. Startling Event – The event giving rise to the statement must be sufficiently startling to eliminate the declarant’s capacity to reflect before speaking. b. Still Under Effect – The statement must be made while the declarant is still under the influence of the startling event. Occasionally, the event may produce shock, memory loss, coma, or some other medical condition that delays the time for reflection. United States v. Iron Shell (1980) – Iron Shell (D) was drunk and pulled a 9-year-old girl into the bushes with the intent to rape her. She finally was able to break free after her pants had been pulled down. She was taken to the police station where she, 45 minutes after the assault had occurred and in a calm manner, told an officer about the event. The officer later testified to this in court and the D appealed claiming that the statements were not made under stress nor were they spontaneous b/c they were answers to the police’s questions. Held: In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statements were spontaneous, excited, or impulsive rather than the produce of reflection and deliberation. Here, (1) the single question “what happened” has been held not to destroy the excitement necessary to qualify under this exception to the hearsay rule, and (2) a lapse of about one hour has also been held not to remove the evidence from the FRE 803(2) exception, especially where the declarant is a young child. 2. Present Sense Impressions – Even if the event did not excite the speaker sufficiently to invoke the excited utterances exception, the FRE also permit statements describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. i) FRE 803(1) – A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. ii) Immediacy – In contrast to excited utterance exception, for present-sense impressions to be admissible, no material time may pass between the event being perceived and the declarant’s statement describing or explaining the event (i.e. “while” or “immediately thereafter”). iii) Rationale – Such a statement is sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There is no time for calculated statement. C. State of Mind – When people say what they think about something or say how they feel physically or emotionally, there are no perception or memory problems. Thus, the FRE provide a hearsay exception for statements of “then existing mental, emotional, or physical condition. 1. FRE 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 bodily health)… But NOT including a statement of memory or belief to prove the fact remembered or believed… UNLESS it relates to the execution, revocation, identification, or terms of declarant's will. 2. Then-Existing Physical Condition – This exception is regularly invoked for statements describing aches and pains present at the time of the statement. It matters not whether declarant speaks close in time to injury or onset of ailment, so long as his words describe how he feels as he talks. i) Broadly Admissible – These statements are admissible not only when spoken to treating physicians, but also when declarant talks to spouse or friend. 3. Then-Existing Mental or Emotional Condition – Often, a declarant will make statements that explicitly concern his own mental or emotional state. Thus, this exception covers statements regarding the present mental condition of both parties and nonparties. i) Present State of Mind – The exception applies only to statements about the declarant’s mental state existing at the time the statement was made Ex: What the declarant says on Wednesday about his mental state on Monday does not fit the exception. a. Fact-Laden Statements – Even though certain statements are laden with facts, they still may be admissible to prove the mental state of the declarant. Ex: A credit report is read over the phone by a bank officer to a potential lessee. Even though bank officer did not explicitly state “you’re a poor credit risk,” and was rather stating facts, the facts were disclosed to convey bank officer’s state-of-mind ii) Limitation: Past Actions or Events – The state-of-mind exception does not apply to statements of memory or belief about past actions or events, and courts are unwilling to allow statements of mental condition (especially statements of memory or belief) to be admitted as circumstantial evidence that a prior event caused the mental state. Shepard v. United States (1993) – A statement by a dying wife accusing her husband of trying to kill her (“Dr. Shepard has poisoned me.”) did not fit the dying declaration exception. Thus P then argues that it should be admitted to prove her state of mind, in refutation of D’s contention that she committed suicide. Held: Court rules statement is inadmissible b/c even though relevant (to refute suicidal state of mind) it is too prejudicial (jury wouldn’t understand that statement can only be used to prove that she didn’t kill herself and not used to prove that D killed her) Ex: P has evidence that D was shaking down Q, who was found dead of knife wounds. P thinks that D was trying to collect “protection” money. At trial, P calls a friend of Q to testify that Q was fearful of D. Held: Most courts would tend to rule that friend’s statement about Q’s state of mind is inadmissible to prove threats because it is backwards looking (i.e. to be “fearful” requires that there was something that happened in the past, e.g. previous threats by D). 4. Subsequent Conduct – Out-of-court statements which tend to prove a plan, design, or intention of the declarant are admissible to prove that the plan, design, or intention of the declarant was subsequently carried out by the declarant. Mutual Life Insurance Co. v. Hillmon (1982) – Involved a wife, SH, who sued her deceased husband’s insurance company to collect on three life insurance policies after, purportedly, her husband (JH) was shot and killed. Insurance company disputed the killing and said that the body found was actually not of JH but rather of AW. In order to prove this, the defense tried to introduce evidence that AW had written his family and wife that he intended to go to Colorado with JH. Held: Letters should have been admitted. There was an issue as to whether AW went with JH to Colorado. The letters were not directly evidence of whether AW went on the trip, but the letters were the best available proof of his intention to go, and specifically to go with JH. This intention made is more probably both that he did go and that he went with JH than if there had been no proof of such intention. i) Cooperation With other Parties – Courts are SPLIT about whether a statement of an intention to engage in some action with another is admissible to support an inference that the action was done with the other, and to support the inference that the other did the action with the declarant. a. Other Evidence Makes More Likely – Courts will be more likely to allow a declarant’s statement to serve as evidence that a third person cooperated in an activity if there is corroborative evidence that the declarant actually participated in the activity or that the third party actually participated. United States v. Pheaster (1979) – LA left a group of his friends one night and disappeared, never to be seen from again. He had told F (girlfriend) and D (Friend) that he intended to meet “Angelo” in the parking lot to pick up some free marijuana. However, after he disappeared, an anonymous person tried to elicit ransom money from LA’s family. AI was arrested and tried on federal charges of conspiracy to kidnap and related offenses. At trial, F and D were permitted to testify to LA’s description and what he planned to do. Held: Court allows the statement but this was before the rules were promulgated. 5. Facts About Declarant’s Will – A person’s statements relating to his own will are generally allowed, even if they are statements of memory or belief offered to prove the fact remembered or believed. This special exception applies to the testator’s statements that he has or has not made a will, that his will is intended to reach a certain result, or that he has or has not revoked a will. D. Statements to Physicians – There is good reason to believe that when seeking treatment by a physician, a person will be careful in describing his symptom to the doctor and telling him what he thinks caused them. Thus, the FRE recognize a hearsay exception for statements made to physicians for such purposes. 1. FRE 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. 2. Test – A commonly accepted test for determining whether statements are admissible requires that… (1) The declarant’s motive in making the statement was consistent with the purpose of PROMOTING DIAGNOSIS OR TREATMENT, and… (2) The content of the statement is REASONABLY RELIED on by physician in treatment or diagnosis 3. Treatment OR Diagnosis – A physician’s evaluation of a person is considered to be a diagnosis even if no treatment is expected. Thus a physician can evaluate a plaintiff patient in anticipation for litigation. 4. Statements of Fault or Identity – FRE allow statements about causation if they are reasonably pertinent to the medical worker’s diagnosis or treatment. Statements about fault, however, will ordinarily not qualify. Blake v. State (1997) – Blake was convicted on tow counts of second degree sexual assault of his stepdaughter. Evidence was presented at trial, over an objection by D, concerning what the victim stated to her doctor during the sexual assault examination, including the victim’s statement identifying Blake as the sexual assault perpetrator. Held Court acknowledged the general rule that statements attributing fault or identity usually are not admissible under FRE 803(4). However, in situations involving physical or sexual abuse of children, statements made by a child victim to a medical professional may be admitted. Statements of identification in child abuse cases are admitted b/c of the special character of diagnosis and treatment in sexual abuse cases. 5. Statements By or To Third Persons – The statement need not be one made by the patient. Rather the statement may be one made by a third person (e.g. friend, relative, Good Samaritan) so long as it is being made for the purpose of getting treatment or diagnosis for the patient. Furthermore, the statement may be made to other qualified third persons so long as being made for legitimate purposes (e.g. nurses, EMT’s). E. Past Recollection Recorded – The rule permitting introduction of past recollection recorded provides for an exception that allows the admission of a written record of an event made shortly after the event occurred. 1. FRE 803(5) – A memorandum 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 memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party Ex: W takes an inventory for the business which employs him, and writes down the inventory on a slip of paper; W is an insurance company accident investigator who investigates a car accident and writes down the information on a slip of paper; W is a police officer who wrote down the facts of an accident; W is an expert in math and had to write down calculations. 2. Four Requirements for Past Recollection Recorded… i) First-Hand Knowledge – The memorandum must relate to something of which the witness once had first-hand knowledge. ii) Made or Adopted when Fresh in Memory – The record must have been made when the matter was fresh in the witness’ memory. A record made several days after the events in question will be found to meet this requirement if the matters were still fresh. iii) Impaired Recollection – The witness must have suffered at least some impairment of his memory of the events recorded, but this impairment need not be total. iv) Accuracy when Written – The witness at trial must testify as to the accuracy of the record when made. This means that the witness must testify either that he remembers making an accurate recording when the event occurred or that he is confident he would not have written or adopted some description of the facts unless that description truly described the observations at the time. Ex: Civilian witness saw the license plate of the getaway car from a bank robbery and gives the information to the security guard to write down. Civilian, guard, and the written piece of paper are all in court. The civilian is not at trial. P wants to introduce the document. P claims past recollection recorded. Held: Here, this is a double hearsay problem: the guard’s hearsay (document) can be taken care of with past recollection recorded, but the civilian is not present and able to be cross- examined. However, the civilian statement could be admissible under the excited utterance exception. Thus, b/c both the hearsay problems are dealt with through exceptions, the evidence is admissible. 3. Adopted by Witness – It is not required that the witness at trial be the person who made the record. All that is required is that the witness have approved or adopted the record, after it was made, as being an accurate recollection of his knowledge. Ohio v. Scott (1972) – Scott was convicted of shooting a person and shooting at two police officers. Right after it happened, he stumbled into a local theater. There, a few minutes prior to his arrest, he had a conversation with Carol Tackett, D’s girlfriend, during which he admitted to wrecking a car and shooting a guy. Tackett conveyed this statement in signed written form to the police shortly thereafter. When she couldn’t recall this on the stand, the state introduced the written evidence. D appeals claiming hearsay. Held: The statement consisted of facts of which the witness had firsthand knowledge; the written statement was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words by Scott; and the witness stated that the memorandum was accurate. F. Business Records – The complexities of modern business transactions mean that an enterprise’s records, kept in the ordinary course of business, are often the best evidence of events that happen during the course of business. Thus, the FRE incorporations and exception allowing such documents over hearsay objections. 1. Business Records – FRE 803(6) provides “[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness… 2. Definition of a Business – The term “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. 3. Requirements – There are four major requirements of this exception… (1) Regular Entry – The entry must be made in the regular routine of a business (i.e. kept in the course of regularly conducted business activity). a. Litigious Documents – Where the record is of a sort that the business prepares only rarely and does not relate to its day-to-day operations (e.g. prepared for potential litigation purposes), the exception usually does not apply. Palmer v. Hoffman – Railroad accident reports are inadmissible under FRE 803(6) b/c their primary use was not for business, but rather for litigating. Furthermore, the same party (railroad) who conducted the investigation was involved in the accident (self-serving) and thus implicates the unreliable exception as well. (2) Personal Knowledge – The source of the information must be someone with personal knowledge. (3) Timeliness – The information needs to be recorded (or at least gathered) at or close to the time of the act or event, or when the condition was observed. (4) Foundation Testimony – The foundation witness need not have made the record nor observed its preparation or even have been employed by the business when the record was made. Whit is required is a witness (preferably the “custodian” of the records) with firsthand knowledge of the recordkeeping system who can describe the manner in which the records are prepared 4. Unreliability Exception – FRE 803(6) does not apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness” i) Self-Serving Motivation – Most courts will exclude a record where there is strong motive on the part of the business or the employee-declarant to behave in a self-serving manner. Petrocelli v. Gallison (1982) – Medical malpractice case involving multiple hernia surgeries. When P complained to doctor after first surgery, doctor claimed he had cut nerve completely. However, P got an expert to claim otherwise after looking at hospital records. P argues that the statements should have been admitted because they were contained in reports kept by the hospital in the regular course of business and that they were made by doctors with knowledge of P’s condition. Held: This exception encompasses only declarants – like nurses or doctors in the case of hospitals – who report to the record keeper as part of a regular business routine in which they are participants. Where the declarant is a hospital patent, his relating of his own history is not part of a “business” routine in which he is individually a regular patient. If the document was made by a doctor stating the diagnosis procedure, then it is clearly admissible. If, however, this information merely reflected the narrative of the patient reflecting his medical history, then it is inadmissible (b/c lacks the presumed credibility). G. Public Records – The FRE provide for an exception for public records because it is presumed that public servants go about their official tasks with care, without bias or corruption, and that the scrutiny and exposure surrounding government functions add assurance that public records are trustworthy. 1. FRE 803(8) – Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth… (A) The activities of the office or agency, or … (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, EXCLUDING, however, in criminal cases matters observed by police officers and other law enforcement personnel, or… (C) In civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, UNLESS the sources of information or other circumstances indicate lack of trustworthiness. 2. Activities of the Office – (A) Covers any reports used to show that certain activities occurred. Ex: Following an airplane crash, the FAA sends an inspector to the crash scene, who attempts to determine the cause of the crash. Under subsection (A), the FAA’s records may be used to show that the investigation took place. 3. Matters Observed Under Duty – (B) provides that written observations made by public officials are admissible if (1) observations were made in the line of duty; and (2) the official had a duty to report these observations. Ex: IRS auditor goes to Smith household to conduct a field audit of Smith’s tax return. Smith claims a business deduction for an office at home. The auditor finds no evidence of such an office, and says so in his report. In a civil case between Smith and a business partner, either side could use this report as proof that Smith did not maintain an office at home. i) Exception: Police Reports in Criminal Cases – (B) does not apply to matters observed by police officers and other law enforcement personnel to be used against a criminal defendant. United States v. Oates (1977) – Concerns a criminal case of possession of heroin w/ intent to distribute and conspiracy to distribute heroin. To determine whether a white powder was heroin, the police sent it to a United States Custom Service chemist. However, on the day of the trial, he was very sick and couldn’t come to court. Thus, the prosecutor tired to admit the reports from the chemist as substantive evidence. D appealed. Held: The chemist’s documents were inadmissible as evidence. FRE 803(8)(B) must be read broadly enough to prohibit the use of government generated reports in criminal cases. 4. Investigative Reports – (C) allows the admission in civil trials (and criminal trials against the government) of factual findings that result from investigations made pursuant to authority granted under law. i) Evaluative Reports – Most courts have viewed the “factual findings” requirement liberally and have accepted reports that include opinions, evaluations, and/or conclusions Baker v. Elcona Homes Corp. (1979) – Two cars collided at an intersection. This issue concerns which car had the green light and thus the right-of-way. The responding police officer testified about the accident, and then his police report, which included a finding of which car entered the intersection against a red light, was admitted over hearsay objection. Held: A police accident report is a public record and report within the meaning of FRE 803(8). Courts have been very liberal in determining the admissibility under FRE 803(8), and ACN accepts “evaluative” reports as being within the meaning of factual findings. Thus, here, the determination of whether light was red or green was a factual finding. ii) Lack of Trustworthiness – ACN lists four suggested factors for consideration when determining whether the judge exclude an otherwise admissible report. a. The timeliness of the investigation, b. The special skill or expertise of the official, c. Whether a hearing was held and the level at which it was conducted, and d. Possible motivational problems. Here, the police report was timely, done by an officer with special expertise, there was no hearing, and there was no reason to suspect ill motive H. Other Unrestricted Exceptions (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Marriage, baptismal, and similar certificates. 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. 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 of documents affecting an interest in property. 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. 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. Statements in a document in existence twenty years or more the authenticity of which is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. (18) Learned treatises. 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. (19) Reputation concerning personal or family history. 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. 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. (21) Reputation as to character. Reputation of a person's character among associates or in the community. (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgment as to personal, family, or general history, or boundaries. Judgments 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. VIII. EXCEPTIONS WHERE DECLARANT IS UNAVAILABLE A. Generally – FRE 804 recognizes hearsay exceptions that may be invoked only if the declarant is unavailable as a witness. Statements within these exceptions are thought to be good enough to be admitted, but not as good as live testimony by the declarant. 1. Unavailability Requirement – Unavailability does not mean that the declarant must be physically unobtainable. Rather, under FRE 804(a), the requirement is satisfied if his testimony is unobtainable. “Unavailability” includes situations where the declarant… I. Privileges – is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or II. Refuses to Testify – persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or III. Lack of Memory – testifies to a lack of memory of the subject matter of the declarant's statement; or IV. Death or Illness – is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or V. Unavoidable Absence – is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process or other reasonable means. 2. Exception: Procurement or Wrongdoing – A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying B. Former Testimony Exception – FRE 804(b)(1) provides that testimony given in an earlier proceeding is admissible if the witness is unavailable at trial. 1. FRE 804(b) – Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination 2. Four Requirements… i) Unavailability – The declarant must be unavailable. ii) Hearing, Proceeding, or Deposition – The former testimony must have been given under oath in a hearing, deposition, or proceeding (e.g. prior civil or criminal trial, preliminary hearing, grand jury investigation, suppression hearing, or deposition). iii) HAD Opportunity to Cross-Examine – The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony. iv) Similar Motive – The party against whom the prior testimony is now offered must have had a similar motive to develop the testimony in the prior proceeding by direct, cross, or redirect examination. There must have been substantial overlap in the issue that was at stake when the prior testimony was given and the issue at stake now. 3. Actual Cross-Examination Not Required – There is no requirement that the party against whom the evidence is now offered have actually cross-examined the declarant at the earlier proceeding. All that is required is that the opponent had a REASONABLE OPPORTUNITY to do so with similar motives. i) Predecessor In Interest (Civil Trials) – Requirement means that it is sufficient there was a different party in the earlier proceeding so long as that party had the same motive to cross-examine the declarant. 4. Change in Circumstances – Often the objecting party argues that differences between the prior and present proceedings show that on the earlier occasion there was less reason (or none) to go after the witness on cross: e.g. the charges or issues were different in the earlier proceedings, or parties were added or dropped since then, or the purpose of the earlier proceeding was narrower. Lloyd v. American Export Lines, Inc. (1978) – Case involves a fight that occurred on a ship while at sea. A claimed that L attacked him and alleged vicarious liability on behalf of American Export (vicarious). Key issue in the case was which party (L or A) attacked the other. L claimed that A attacked him during a Coast Guard hearing but subsequently L was unavailable to testify at trial (could not be found; at sea). Held: Here, Court finds that there was a sufficient community of interest shared by the Coast Guard in its hearing and Alvarez in the subsequent civil trial. Furthermore, the basic interest advanced by both A and Coast Guard was that of determining culpability and exacting a penalty of the same condemned behavior thought to have occurred. B. Dying Declarations – Where a person understands that death is imminent and speaks of his circumstances the hearsay doctrine has recognized an exception for his words. This is available in both civil and criminal trials. 1. FRE 804(b)(2) – In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death 2. Belief of Imminent Death – The declarant must have spoken with the consciousness of a swift and certain doom. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be a settled hopeless expectation that death is neat at hand, and what is said must have been spoken in the hush of its impending presence. Ex: In Shepard v. United States, case where a woman was poisoned by her husband but her condition was slightly improved for a while, statements were inadmissible because at the time she had no belief of certainty of death 3. Statement Must Relate to Cause and Circumstances – The exception embraces only statements concerning cause and circumstances of death. Thus, there must be a factual basis for the remarks and not mere speculation. However, this includes both the identity of an assailant as well as describing an accident. Ex: D, in anticipation of his death, says “X and I have been deadly enemies for 10 years.” This is not admissible because it is speculative and does not relate directly to cause of D’s death. However, if D had said, “X has been stalking me for two days,” this statement might be admissible. C. Statements Against Interest – Declarations against interest are thought to be trustworthy on ground that a person is unlikely to state facts (or make statements) harming his own interests unless they are true. 1. FRE 804(3) – A statement which was at the time of its making so far… CONTRARY to the declarant's pecuniary or proprietary interest, Or so far tended to subject the declarant to civil or criminal LIABILITY, Or to render INVALID a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 2. EXCULPATING Accused Requires Corroborating Evidence – 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. 3. Collateral Statements Not Admissible – Only those individual declarations that are specifically against the declarant’s interest can be admitted. The rule does not allow the admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. Williamson v. United States (1994) – Case involved the arrest of Harris after a search of his trunk revealed cocaine. Harris claimed that he had rented a car and drove to Ft. Lauderdale to meet Williamson where he met the Cuban who put the drugs in the car with an instruction note. Later, Harris changed his story and confessed that he was taking the drugs to Atlanta for Williamson, who had been driving in front in another car and that he had lied b/c he was afraid of Williamson. Other proof linked the two such as the rental agreement listed Williamson as an additional driver, the luggage bore his sister’s initials, and there was an envelope addressed to him in the glove compartment. At trial, Harris refused to testify and the court admitted against Williamson the statements made by Harris. Held: Some of Harris’ confession would clearly have been admissible, such as when he said he knew there was cocaine in the suitcase. But other parts of his confession, especially the parts in which he implicated Williamson, did little to subject Harris himself to criminal liability. Thus, these statements should not be admitted. D. Statements of Personal or Family History – On assumption that the pronouncements of this sort likely rest on adequate information, and in practice many are made before controversy arises and are thus untainted by the forces that generated the litigation, the FRE contain an exception for statements of personal or family history. 1. FRE 804(4) (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 2. Additional Information – When a statement is offered to prove facts about people other than the speaker, courts may required independent evidence that she belongs to the family. But when statements are offered to prove facts about herself, other proof is probably not required. 3. Exclusion of Self-Serving Statements – Courts applying the exception sometimes exclude self-serving statements and those motivated by greed, ill will, or other forces suggesting untruthfulness. E. Statements Admissible Because of Forfeiture by Misconduct – To discourage witness-interference (e.g. intimidating, threatening, bribing, murdering, etc.), the FRE created an exception that makes a witness’ prior statements admissible even in his absence when such interference is successful. 1. FRE 804(6) – A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness 2. Preponderance Of Evidence Burden of Proof – The proponent of the out-of-court declaration only needs to show by a preponderance of the evidence (not beyond reasonable doubt) that the party against whom the declaration would be used has intentionally committed the wrong-doing that made the declarant unavailable. IX. THE CATCHALL EXCEPTION A. Generally – The “catchall exception” allows courts to admit hearsay that does not fit any other categorical exceptions if it is nevertheless trustworthy and necessary. 1. FRE 807 – A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial GUARANTEES OF TRUSTWORTHINESS, is not excluded by the hearsay rule, if the court determines that … (A) The statement is offered as evidence of a material FACT; (B) The statement is MORE PROBATIVE on the point for which it is offered than ANY OTHER EVIDENCE which the proponent can procure through reasonable efforts; and (C) The general PURPOSES of these rules and the INTERESTS OF JUSTICE will best be served by admission of the statement into evidence. Ex: Dallas Clock Tower Case – Case involved a collapsing clock tower and resulting injuries. Plaintiff claimed that the collapse occurred b/c of a recent lightning strike. However, insurance company claimed structural deficiency b/c of a fire years before and thus they were not liable. Insurance company introduced a news paper article (decades prior) to prove the fire. Although the article could not come in under any other specific exception, it was extremely reliable and thus admissible. B. Notice Requirement – A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant C. Circumstantial Guarantees of Trustworthiness – The most important requirement for residual hearsay is that it possess guarantees of trustworthiness equivalent to those supporting the Rule 803 and 804 exceptions. No inclusive list of factors determining admissibility can be devised since admissibility hinges upon the peculiar factual context within which the statement was made. But some nondispositive generalizations can be made. 1. Factors – There are certain factors all courts consider in evaluating the trustworthiness of a declarant's statement under the residual exception. These include: i) The relationship between the declarant and the person to whom the statement was made. For example, a statement to a trusted confidante should be considered more reliable than a statement to a total stranger. ii) The capacity of the declarant at the time of the statement. For instance, if the declarant was drunk or on drugs at the time, that would cut against a finding of trustworthiness, and vice versa. iii) The personal truthfulness of the declarant. If the declarant is an inveterate liar, this cuts against admissibility, while an unimpeachable character for veracity cuts in favor of admitting the statement. iv) Whether the declarant recanted or repudiated the statement after it was made v) Whether the declarant has made other statements that were either consistent or inconsistent with the proffered statement. vi) Whether the behavior of the declarant was consistent with the truth of the statement. vii) Whether the declarant had personal knowledge of the event or condition described. viii) Whether the declarant's memory might have been impaired due to the lapse of time between the event and the statement. ix) Whether the statement was made under formal circumstances or pursuant to formal duties, such that the declarant would have been likely to consider the accuracy of the statement when making it. x) Whether the statement appears to have been made in anticipation of litigation and is favorable to the preparer. xi) Whether the declarant was cross-examined by one who had interests similar to those of the party against whom the statement is offered. xii) Whether the statement was given voluntarily or instead pursuant to a grant of immunity. xiii) Whether the declarant was a disinterested bystander or rather an interested party. State v. Weaver (1996) – Mary Weaver was charged with first degree murder and child endangerment. The child had died of respiratory arrest and there was evidence of a skull fracture, bleeding in the brain, and other injuries consistent with shaken baby syndrome. At trial, she was convicted of first degree murder. Weaver moved for a new trial on the basis that there was not admitted testimony from three different witnesses all saying that Mathes, the mother, had told them the baby had hit its head while putting on a snowsuit. Thus, this newly discovered evidence served to exonerate the defendant. None of these witnesses, however, could identify the date on which the incident occurred. Held: The statements were admissible hearsay evidence. The factors weigh in favor of the trustworthiness of the statements since the affiants did not socialize with Mathes, none had a personal vendetta against her, and none of them personally knew the defendant. D. The Catchall and Child Abuse Prosecutions – The catchall plays an important role in child abuse cases b/c courts often use it to admit statements by child victims describing their abuse. 1. Factors to Determine Truthfulness – Including…precocious knowledge and age-appropriate language, behavioral changes, general demeanor and affect, and particular indications of pain or emotional upset, spontaneity, the presence of absence of bias or other motives on the part of the speaker or the reporting witnesses, signs of tension or disagreement between the child and the person accused of abuse, the training and technique of people who talk to the children, the number and consistency of repetitions of a basic story, and the character of the child. I. CONFRONTATION CLAUSE (SIXTH AMENDMENT) AS A BAR TO HEARSAY A. Generally – The Confrontation Clause, which guarantees a criminal defendant the right “to be confronted with the witnesses against him,” to some extent, constitutionalizes the hearsay rule. 1. Sixth Amendment – The U.S. Constitution provides that… In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. 2. Confrontation Clause – Guarantees that the accused be there when a witness testifies against him, and to have the ability to cross-examine such witness. Confrontation only applies to defendants in criminal cases; it is intended to allow the defendant the right to cross-examine any accusing witnesses i) Scope and Breadth of Cross Examination – Just because the defendant has the right to cross examine the accuser doesn’t mean that he has carte blanch to ask anything. Rather, reasonable rules of evidence must be followed on the scope and breadth of cross examination permitted. ii) Procedures for Protection – The Court held that the Clause entitles the defendant not only to be present, and to see and hear the witnesses against him, but also to be in view of them. But the defendant may lose this right if he is misbehaving or if the court allows a youthful assault victim to testify from another room (via closed-circuit television) on the basis of a case-specific finding that it is necessary to protect the child. Or, the defendant is placed in another room while the child witness testifies. 3. Process of Analysis – (1) determine whether a hearsay rule excludes the evidence; (2) if the hearsay rule permits the evidence, then the defendant will have the backup argument of a constitutional impediment to admitting the statement B. Previously-Accepted “Two-Pronged” (Ohio v. Roberts) Test 1. Two Pronged Test – The Confrontation Clause imposed two separate requirements, each of which must be satisfied before hearsay may be admitted against the accused… (1) The prosecution must either produce the declarant at trial so that she can be cross-examined or it must demonstrate the declarant’s unavailability. (2) If the first prong is satisfied, the hearsay will be admitted only if it contains “indicia of reliability.” In the case of a “firmly rooted hearsay exception,” reliability will be inferred. But in the case of hearsay that does not fall within the firmly-rooted exception, then there must be particularized guarantees of trustworthiness arising out of the specific facts surrounding the statement. 2. “Firmly Rooted” Hearsay Exceptions – Coconspirator statements, excited utterances, statements for medical diagnosis or treatment, business records, dying declarations, agent’s admissions, and public records Ohio v. Roberts (1980) – Roberts (D) was on trial for possessing stolen credit cards and checks. Anita Isaacs had testified at the earlier hearing when called by the defense saying that she knew Roberts and let him use her apartment for several days but did not admit that she gave him the checks or credit cards. When the case went to trial, Isaacs could not be found (sent subpoena to last known address) and thus court admitted her statements from preliminary hearing. Roberts was convicted. Held: The defense questioning of Isaacs at preliminary hearing amounted to cross-examination since it was replete with leading questions and challenged the truth of her story. Further, Isaacs was unavailable in the constitutional sense. Thus, the state did not breach its duty to make a good faith effort to obtain Isaacs. C. Testimonial v. Nontestimonial (Crawford v. Washington) Test – Hearsay statements that are “testimonial” in nature may not be admitted unless the accused gets some chance to cross-examine the declarant (either at the time the out-of-court statement is made or at the accused’s later trial). Hearsay statements that are “not testimonial” (i.e. not intended for use at a later trial and not reasonably foreseeable to the speaker as being the sort of thing that would be used at trial), however, may be freely admitted 1. Test for Testimonial Statement Admissibility – If the statement is TESTIMONIAL, it may not be admitted against the accused – in the absence of the declarant’s presence and availability for cross- examination at trial – unless two requirements are met… (1) The declarant must be UNAVAILABLE to testify at trial (2) The accused must have had a PRIOR OPPORTUNITY to CROSS-EXAMINE the declarant about the statement. Crawford v. Washington (2004) – Involved an attempted murder and assault. D and his wife (Sylvia) went in search of Lee because D was upset about an earlier attempt by Lee to rape Sylvia. When he found Lee, a fight ensued. D claims that Lee pulled a knife and that he acted in self-defense. Sylvia, however, in a preliminary hearing, stated that Lee did not have a knife. During trial, Sylvia did not testify because of the state’s marital privilege. However, because this privilege did not reach to statements made during preliminary hearings, the state sought to introduce the statements made by Sylvia as evidence that the stabbing was not self-defense. Held: The Roberts framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations. Thus there must be a new standard. Here, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. 2. Definition of “Testimonial” – Intended, known, or having a reasonable expectation that the statement will be used as evidence to prove guilt in court against the defendant. i) Types of Testimonial Statements – The following will most likely be testimonial statements… a. Ex Parte In-Court Testimony or its Functional Equivalent – e.g. Materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine (e.g. grand jury testimony), or similar pretrial statements that declarants would reasonably expect to be used prosecutorially (e.g. police interrogations) b. Extrajudicial Statements contained in Formalized Testimonial Materials – such as affidavits, depositions, prior testimony, or confessions c. Objective Reasonable Belief – Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial (e.g. 911 calls describing criminal acts) ii) Police Involvement Not Dispositive – The fact that the government had a role in getting the evidence (i.e. wire-tapping, covert agent, etc.) is important but not dispositive Ex: Coconspirator statements where a coconspirator made statements about the conspiracy to the police. Government wants to use these statements against the other coconspirators which are not yet captured. D’s argue that the statements were collected for purpose of use during trial and thus not admissible b/c testimonial Held: Statements are not testimonial because they not accusatory and rather they merely describe the conspiracy. D. Statements Subject to Prior or Later Cross-Examination – Indications are that deferred cross-examination does suffice to meet requirement of cross-examinability under the Confrontation Clause, and that previous cross-examination may suffice, at least in some circumstances. 1. Prior Cross-Examination (i.e. PRIOR TO TRIAL) – Concerns whether it sufficient that the accused can cross-examine the declarant before trial on the statement that is offered against him. i) Satisfied if At the Time of Declaration – If the defendant’s attorney actually conducted a meaningful cross-examination of the declarant at the time of the declaration, in circumstances reasonably approximating a criminal trial (oath, etc.), the fact that the declarant is unavailable later is irrelevant. California v. Green (1970) – Porter testified in a preliminary hearing that John Green asked him to sell some marijuana and pick up a sack containing baggies of it in the bushes of Green’s parents. Porter did, and sold some to undercover officer (Wade). Counsel for Green extensively cross-examined P at the preliminary hearing. At trial, however, Porter because evasive claiming that he was on LSD at the time and could not remember what happened after Green called. Thus, the prosecutor read excerpts from Porters preliminary hearing testimony and Green was convicted. Held: Conviction is upheld. D had the opportunity to cross-examine Porter at the time of the preliminary hearing, and did so under circumstances approximating those that surround a criminal trial. ii) Unused Opportunity – It is unresolved whether an unused opportunity to cross-examine a witness will suffice to meet Confrontation Clause challenges. Under the language of Crawford, however, it is likely that the “prior opportunity for cross-examination,” even if unused, will be sufficient. 2. Deferred Cross-Examination (i.e. AT TRIAL) – Concerns whether it is sufficient that the accused can cross-examine the declarant at trial on a prior statement that is offered against him. i) Satisfies Cross-Examinability Requirement – The inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial. In sum, the Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. a. Lack of Memory Irrelevant – The opportunity to cross-examine is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such mattes as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and event (what is often a prime objective of cross-examination) the very fact that he has a bad memory. E. Forfeiture of Right to Confrontation – The general rule of forfeiture from hearsay also applies to the rights guaranteed under the confrontation clause. i) Dying Declarations Unresolved – It is especially troublesome when the act that makes the witness unavailable is the same act that is being tried in court (i.e. murder) and the government tries to bring in accusatory dying declarations of a victim/witness. There is debate whether dying declarations survived the Crawford case, but the Supreme Court has yet to rule on this. ii) Legal Privileges – It is not forfeiture when a legal privilege is asserted (i.e. if a wife asserts the marital privilege and thus does not testify in court) I. LAY OPINION TESTIMONY A. Generally – Ordinarily, non-experts (i.e. lay witnesses) may not testify to their opinions. However, an opinion by a non-expert is admissible if (1) the opinion is rationally based on the perception of the witness; and (2) the opinion will be helpful to clear understanding of the witness’ testimony or the determination of a fact in issue. 1. FRE 701: Opinion Testimony by a Lay Witness – If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are… (a) Rationally BASED on the PERCEPTION of the witness, (b) HELPFUL to a clear understanding of the WITNESS' TESTIMONY or the determination of a FACT IN ISSUE, and (c) NOT based on SCIENTIFIC, TECHNICAL, or other SPECIALIZED KNOWLEDGE… 2. Rationale – The process of making inferences from the underlying facts properly belongs to the trier of fact (i.e. the jury) and not the witnesses. 3. Trial Court has Very Broad Discretion – The trial court has a lot of discretion to determine what opinion statements are allowed by a lay witness. If too opinionated, the statement may be allowed by the judge with more leeway being given to the other side on cross to attack the opinion. Almost never will an appeal succeed based on challenging this aspect Ex: Questions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, and health; questions also concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character, and particular phases of character, and other conditions of things, both moral and physical Ex: In the trial for Cox for unlawful detonation of explosives, the prosecution calls D’s former girlfriend C. She testifies that Cox told her twice that he knew someone who would blow up cars for $50 and he showed her a newspaper account of one of the bombings. In the testimony, C says “it was my understanding by his mentioning that he had a friend and showing me the article that it was my impress when we were done talking that the was involved in having it blown up.” D objects. This crosses the line and is too subjective of an opinion, thus not permitted. She is not testifying on merely facts but making the inferential jump to essentially saying that the D was guilty B. Giving an Opinion: the “Collective Facts” Doctrine – Certain ideas within common experience can best be expressed by means of a shorthand word or phrase. If the witness uses such language or phrases to describe their first-hand knowledge, then this testimony will be permitted. Because it is sometimes difficult to describe various matters, witness may relate their opinions or conclusions of what they observed. 1. Limitation – If the jury can be put into a position of equal vantage with the witness for drawing an opinion from the facts, however, the witness may not give an opinion. Ex: Question of whether a person (after above auto accident) was intoxicated and the witness said “it appeared that the witness was drunk.” – This is probably too much of an opinion. A series of questions should have been asked (i.e. whether slurred speech, smelled, staggering, etc.) to support the eventual opinion of intoxication. Ex: D is on trial for murder and raises an insanity defense. W, his mother, testifies that he was “in such terrible shape” and was “mentally and physically ill.” W’s statements were admitted because W was not capable of describing D’s condition in facts that were more specific than this. The jury understood what W was saying and that she wasn’t expressing an expert opinion. II. EXPERT TESTIMONY A. Generally – Rule 702 establishes that an expert is essentially someone with specialized knowledge. 1. Source of Expertise – This includes any person with suitable training, education, or expertise even if he is not a specialist or is not renowned, even if he lacks a certification, even if he has no formal training, and even including “skilled” witnesses such as bankers or landowners testifying to land values 2. FRE 702: Testimony by Experts If scientific, technical, or other specialized knowledge will ASSIST the trier of fact to understand the evidence or to determine a fact in issue… a witness QUALIFIED as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) The testimony is BASED upon sufficient facts or data, (2) The testimony is the PRODUCT of reliable principles and methods, and (3) The witness has APPLIED the principles and methods reliably to the facts of the case B. Basis for Expert Testimony – FRE 703 lets an expert witness base his testimony on facts or data of three sorts, provided that they are “of a type reasonably relied upon by experts in the particular field,” even if not admitted nor even admissible in evidence. 1. Personal Knowledge – An expert can testify to facts or data that he learns by firsthand observation “before the hearing.” Where this happens, the expert may testify to his observations just as any non-expert would, and then he may go on to give his inferences and opinions from those facts as well. 2. Observation of Prior Evidence – Additionally, the expert can base his opinion on facts or data that he learns “at the hearing.” This means that the expert can testify about both (1) testimony heard by the expert while sitting in the courtroom listening to other testimony before taking the stand himself; and (2) information conveyed in hypothetical questions summing up evidence previously admitted. i) Hypothetical Questions – Common method of eliciting expert opinion because it enables proponent to use the expert without having him become intimately familiar with the facts of the case. However, 3. Other Outside Data – The expert can base his opinion on outside data, meaning information he obtains before trial by consulting other sources which are reasonably relied upon by other experts in the field i) FRE 703: Bases of Opinion Testimony by Experts – The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing… a. Underlying Facts or Data Need Not be Admissible – If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. b. Facts Otherwise Inadmissible – Facts or data that are otherwise inadmissible shall not be disclosed to the jury by … opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. C. Formal Limitations: Ultimate Issues, Legal Elements, and So Forth – By common law tradition, witnesses could not testify to ultimate issues in the case lest they invade the province of the jury. Rule 704 abolishes this. 1. FRE 704: Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone a. Limitation: Legal Standards – Modern courts continue to reject expert testimony concerning the proper application of legal standards. ACN suggests that courts ought to disallow questions phrased in terms of inadequately explored legal criteria but permit more specific questions apparently phrased in readily understood terms. b. Limitation: Mental Condition as Element of Claim or Defense – An expert in a criminal prosecution is also prohibited from stating an opinion that defendant had or lacked a mental state or condition “constituting an element of the crime charged or a defense.” This was intended to limit psychiatrists from presenting and explaining their diagnoses and to prevent them from being asked to speak in terms of legal or moral constructs. D. Presentation of Expert Testimony – Before a witness can testify to matters of substance, typically the calling party asks the court to “qualify the witness as an expert.” This includes question such as educational background, experience, and familiarity with the subject in suit. 1. Challenging Qualifications – Sometimes, the adverse party may think he has a shot at undercutting the credentials, perhaps even denying qualification. Hence the adverse party not only refuses to stipulate but request an opportunity to voir dire the witness – meaning essentially, to cross-examine him on his credentials and familiarity with the subject at hand. 2. Bringing Out Expert Testimony i) Ask Directly – Testimony by a lay witness would never come out directly and the proponent would be expected to first “lay foundation” to show that the witness has personal knowledge. This is not required with experts. This is because: (1) hypotheticals necessary to base testimony are often long and complex, and (2) there is little risk of lack of foundation considering that the witness is permitted/expected to rely on outside information. ii) Hypothetical Questions – Often, the hypothetical questions are so long and cumbersome that they generate objection and argument. So customary are such objections that typically the court instructs the witness to wait and not to answer until the other party has had a chance to object. iii) Importance of Cross-Examination & Discovery – Allowing the calling party to ask the expert directly for his opinion has greatly increased the importance of cross-examination as means of testing an expert’s opinion. However, the effectiveness of this approach depends upon the advance knowledge that can be acquired. Thus, the discovery process is very important, especially in taking depositions of experts to enable effective cross-examination. 3. No Need to Lay Foundation – The calling party may ask directly for the “opinion or inference” of the expert (and the underlying reasons) “without prior disclosure” of the basis. Of course, establishing the basis first is not prohibited either, and a party may well choose to do so. i) FRE 705: Disclosure of Facts or Data Underlying Expert Opinion – The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination III. SCIENTIFIC EVIDENCE & STANDARDS FOR RELIABILITY A. Generally – Since scientific evidence involves specialized knowledge that the jury is not necessarily equipped to evaluate on its own, there is a large risk that the jury will give such testimony more weight than it deserves. Thus, there have been special rules developed to insure the reliability of any offered scientific evidence. 1. Traditional “Generally Accepted” Approach – The standard developed in the Frye case stated that scientific evidence had to be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” B. Modern Approach: Preliminary Assessment by Trial Court – The Supreme Court in Daubert threw out the Frye “generally accepted” test entirely. Instead the Court held that scientific evidence must now meet two preliminary requirements before a trial judge should allow it to be admitted in federal courts. 1. Preliminary Assessment – The Daubert test entails a preliminary assessment by trial judge of whether… i) RELIABILITY – Whether reasoning or methodology underlying the testimony is scientifically valid. a. Analysis Factors – In assessing the validity of a reasoning or methodology, the Court developed a non-exhaustive list of factors that the trial judge should take into account, including… i. Whether the theory or technique can be (and has been) tested… ii. Whether it has been subjected to peer review and publication… iii. The technique’s known or potential rate of error, and… iv. Whether it is “generally accepted” in the scientific community. ii) RELEVANCE – Whether that reasoning or methodology can properly be applied to the facts in the case. This questions whether the evidence is relevant and whether it can be sufficiently tied to the facts of the facts of the case that it will aid the jury in resolving a factual dispute. 2. Judge Evaluates Methodology Only – The preliminary assessment must be solely on the principles and methodology, not on the conclusions they generate. i) Jury Evaluates Accuracy – If the evidence is allowed in, it’s up to the jury to fund whether the rsutls of the test or technique are accurate. Daubert v. Merrell Dow Pharmaceuticals (1993) – Cased involved the standard for admitting expert scientific testimony in a federal trial. Petitioner alleged that birth defects had been caused by the mothers’ ingestion of Bendectin. Respondent presented expert evidence based on 30 published studies that Bendectin did not cause risk factors for human birth defects. Petitioner introduced their own expert testimony based on test-tube and animal studies that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects. The District Court granted summary judgment b/c the petitioner’s evidence were not “generally accepted” as reliable (Frye Test) because they were not published or subjected to peer review. Petitioner claimed that the “generally accepted” test had been vacated by the FRE. Held: The “generally accepted” test is no longer the standard. Rather, under FRE 702, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable. 3. Policy Question: What difference did Daubert make? – When it was originally accepted, Daubert was believed to be a liberalization of the standards for experts. However, over time, the trial court judges have taken this “gate-keeping” role very seriously and it has really, arguably, restricted the standards for scientific experts C. Extension of Daubert to Non-Scientific Evidence – The standards from Daubert and the gatekeeping role of the trial judges were later extended in Kumho to apply to not only scientific evidence, but rather, to all expert testimony including non-scientific evidence. 1. Daubert Factors May Be Considered – The trial judge may – but need not – consider any given specific factor mentioned in Dauber. i) Judge Determines Applicable Factors – The Court in Kumho stressed that the trial judge has considerable discretion – not only in deciding whether any particular criterion is satisfied, but also in deciding what criteria or factors to apply in the first place. Kumho Tire Company, LTD v. Carmichael (1998) – Case involved a rear steel-belted radial tire of a minivan driven by Patrick Carmichael which blew out, causing an accident that killed one passenger and severely injured others. The Carmichaels sued Kumho Tire (maker and distributor). Carmichael relied on deposition testimony by an expert in tire failure analysis. The expert concluded after looking at various factors, that a defect caused the blowout. However, the trial court ruled the expert’s testimony inadmissible because his methodology failed the reliability requirement of FRE 702 and Daubert. Thus, summary judgment was awarded for the defense. Plaintiffs appealed, and the 11th Circuit reversed concluding that Daubert applies only to scientific evidence, not to expert testimony more generally. Held: The gatekeeping obligation of the federal trial court judges applies to ALL EXPERT TESTIMONY. Furthermore, the specific Daubert factors that should be used in the assessment are tied to the particular case and facts at issue. Finally, the trial court must have broad latitude in deciding how to test an expert’s reliability and to decide whether or when special briefing or other proceedings are needed to investigate reliability. 2. Don’t Look Broadly; Look at Case-Specific Application of Methodology – The focus should be particularly on the application in the case at issue and should not necessarily involve the broad and general applicability of scientific theory or methods. Ex: Kumho stresses this point where the question was not the reasonableness in general of a tire expert’s use of visual and tactile inspection (i.e. the test could be reliable under FRE 702), but the reasonableness of the method and approach regarding this particular case. The court agreed that that test could be reliable, but the plaintiff never proved that any other experts used the same methodology or 4-part test. D. Syndrome and Social Framework Evidence – Whenever the mental condition of a person is at issue, one or both sides are likely to use expert testimony bearing on the condition, syndrome, or social framework in the form of a psychiatrists’ opinion. Ex: Battered child syndrome (BCS), child sexual abuse accommodation syndrome (CSAAS), rape trauma syndrome (RTS), and battered woman syndrome (BWS) 1. Can’t Make Ultimate Validity Argument – Although expert can tell about the syndrome, and even if the person in issue was exhibiting symptoms of the syndrome, most courts will not allow experts to make the last logical step to say whether the person was telling the truth. Courts are generally very reluctant to allow experts to testify beyond what are general symptoms Ex: M is charged with sexual assault on his 14 year-old child S. S, however, later recanted her story saying that the accusations were made b/c S was angry at her dad for curfew. P calls an expert witness (psychologist) to tell about child sexual abuse and how children often exhibit similar behavior (i.e. change story, give untrue recanting of story b/c they feel guilty or pressure from family, etc.). D would argue that there is no reliability to the methodology (i.e. was not subject to peer review, very subjective, etc.). P would rebut that psychologists have studied this type of syndrome evidence extensively and thus you can determine whether something happened by their syndromes or behaviors. Sufficiently Reliable – The judge would have to determine whether this type of observation-type evidence is “sufficiently reliable.” In deciding this, the judge has to know whether there is good enough social science research and evidence (error rate, etc.). Linking to Facts of the Case – The second question that needs to be answered by the judge is whether this “sufficiently reliable” expert test can be tied to the facts of the case (i.e. whether the observations indicate child sexual abuse here). 2. Potential Problem in Criminal Cases – When such testimony describes the behavior of a crime victim or criminal defendant, the syndrome/social framework evidence sees to draw close to being character evidence of the sort regulated by FRE 404 and 405, or by FRE 608. 3. Limitations Provided in FRE 704(b) – Provides that “no expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” E. Standard of Review with Reliability Standards – General Electric Co. v. Joiner rejected the view that a decision excluding scientific evidence was subject to a “particularly stringent” standard of review. Instead, the Court held that an ordinary “abuse of discretion” standard applies. I. Authentication A. Generally – A basic requirement before exhibits and other forms of nontestimonial evidence may be received is that they be properly authenticated. That is, it must be shown to be “genuine.” In general, this means that the object must be what its proponent claims it to be. 1. FRE 901(a): General provision – The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. i) Applies to ALL Evidence – There is no presumption of authenticity and all evidence must be authenticated, including conversations and other intangible evidence. a. Real Evidence – Where the object is real evidence, the authentication normally consists of showing that the object is the object that was involved in the underlying event Ex: Proof that the object was the gun that was actually used by the D in robbing a bank, or proof that the document is actually signed by the P and D, or proof that the tape accurately reproduces a conversation in which D tried to bribe an official b. Demonstrative Evidence – Where the evidence is demonstrative, authentication basically involves a showing that the object fairly represents or illustrates what it is claimed to represent or illustrate. Ex: Proof that the diagram really shows the position of the parties and witnesses at the time of the murder; proof that this experiment on brake failures in a car accurately reproduced the conditions existing when P’s car malfunctioned ii) Issue of Conditional Relevancy – The requirement of authentication is a special case of the requirement that all evidence must be relevant. Under FRE 104(b), something offered in evidence becomes relevant only if the proponent proves that the thing is what he claims it to be. iii) Undue Prejudice – Where the evidence is real or demonstrative, it may, like any other evidence, be excluded on the grounds that it is likely to lead to unfair prejudice on the other side. 2. Judge v. Jury Determination of Authenticity – FRE 104(b) clearly contemplates that the trial judge will play only a screening function, passing the ultimate decision on authenticity to the jury. i) Thus the proponent must offer enough proof of authenticity to enable a jury to find an exhibit authentic. If he offers no proof (or not enough to support the necessary finding by a reasonable jury), the exhibit must be excluded. If he does offer enough proof, the exhibit will be received by the court and the jury makes the ultimate decision regarding its authenticity. B. Methods of Authenticating – The required preliminary showing of authentication is called “laying foundation.” Often a single item may be authenticated in many different ways, and Rule 901(b) sets out an illustrative list of methods of authentication that satisfy the basic standard of Rule 901(a). 1. Stipulation – In 99% of the cases, evidentiary issues are worked out during the pretrial stages (discovery, pretrial conferences, etc.). Thus, instead of going through the process of authenticating the evidence, the parties will stipulate to authenticity. 2. Three General Methods of Authentication – (1) Testimony from a person with personal knowledge; (2) testimony from an expert; and (3) circumstantial proof. i) FRE 901(b): Illustrations – By way of illustration only, and not by way of limitation (i.e. this is not an exhaustive list), the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority 3. Must be Otherwise Admissible – Whatever the means that are used, however, must be also otherwise admissible under the rules of evidence (i.e. not hearsay, qualified, etc.). 4. Refrain from Displaying to Jury until Authenticated – Until any exhibit has been ruled admissible, an attorney should not display it to the jury, read its contents or ask the authenticating witness to do so, or even describe the nature of the exhibit in too great detail when handing it to the authenticating witness. C. Real Evidence Authentication 1. Methods – There are two general methods of authenticating an item of real evidence… i) Readily Identifiable – If the item has a unique, one-of-a-kind characteristic, this method can be used. The sponsoring witness merely testifies that the object he originally saw has a specified unique characteristic and that the item shown to him in court bears that same unique identifier. This testimony is all that is needed for identification and authentication of the object. a. Wide Latitude of Discretion – Trial judges have wide latitude in allowing the admissibility of evidence, and an admission will not be overturned on appeal absent an abuse of discretion. Often, evidence will be admitted with the idea that the jury remains free to reject the assertion that the piece of evidence was used. b. Purpose of the Evidence – One of the most important questions to be asked is “for what purpose is the piece of evidence being offered?” i. Element of the Case – It could be to prove that the D possessed an illegal object (i.e. gun, drugs, etc.). Thus, because the object is an element of the case, a higher burden of proof will be required to authenticate the object. ii. Instrumentality – It could also be used to show the instrumentality (i.e. what was used to commit an illegal act). This has an intermediate standard (e.g. “pretty sure” is acceptable) iii. Similarity – Finally, it could be used to show something similar to the object used in the actual case. Here, the standard is the lowest. United States v. Johnson (1980) – Johnson was convicted of assault resulting in serious bodily injury for an attack with an ax on a victim named Papse. At trial, Papse was called as a witness. A long-handled ax was offered into evidence during his testimony. Pursuant to a search warrant, this ax had been seized at Johnson's residence after the assault. Papse identified the ax, apparently with some hesitancy, as the weapon used to commit the assault on him. Over Johnson's objection that there had been insufficient foundation or authentication, the ax was admitted into evidence. Held: Here, although the identification of the ax may not have been entirely free from doubt, the witness did state that he was "pretty sure" this was the weapon, that he saw the ax in Johnson's hand, and that he was personally familiar with this ax because he had used it in the past. Based on this, a reasonable juror could have found that his ax was the weapon allegedly used in the assault. ii) Chain of Custody – This method of authentication requires that every “link” in the chain of custody – every person who has handled or possessed the object since it was first recognized as being relevant to the case – must be present in court to explain what he did with it. a. Missing Link Not Fatal – The "chain of custody" is not an iron-clad requirement, however, and a missing link will not preclude authentication. Rather, it depends on where in the chain the missing person is whether the evidence will be authenticated United States v. Howard-Arias (1982) – Appellant was one of several crew members rescued when their ship sank. Approximately 240 bales of the marijuana from the ship were salvaged. Upon return to port, the seized material was turned to DEA investigators. One of the agents was unable to appear in court. D’s argued that the government failed to establish a continuous “chain of custody.” Held: The ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with. Precision in developing the "chain of custody" is not an iron-clad requirement, and the fact of a "missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect." D. Writings - Usually, authentication of a writing will consist of showing who its author is. The fact that a document bears a particular person’s signature does not by itself authenticate the document as being written by that person. 1. Signature/Handwriting Identification – Often, a document’s author can be established by showing that it was signed or written in the handwriting of a particular person. This can either be done by direct testimony by a witness with personal knowledge or by an expert. 2. “Reply” Doctrine – Under this method, a letter may be authenticated as coming from a person by showing that it replies to an earlier communication to that person, provided that the earlier communication has itself been authenticated. 3. Distinctive Characteristics or Circumstances – FRE 901(b)(4) allows the use of “appearance, contents, substance, internal patterns, or other distinctive characters, taken in conjunction with circumstances” to be used for authentication. Thus, if there were distinctive characteristics of the document or the circumstances surrounding it, this serves to authenticate the document. United States v. Bagaric (1983) – Defendant (Logarusic) was convicted of violations of Racketeer Influenced and Corrupt Organizations Act. Logarusic challenges the admission of additional evidence linking him to another defendant. This evidence was a letter discovered during a consent search of Logarusic's home on April 3, 1981, after his arrest. Appellant claims the letter was not properly authenticated. Held: Court disagrees. The requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” This finding may be based entirely on circumstantial evidence, including "appearance, contents, substance ... and other distinctive characteristics" of the writing. Here, the letter was addressed to Logarusic and postmarked Asuncion, Paraguay, where Baresic resided. It began with the salutation "Dear Vinko" and ended "your Miro Baresic ... your Miro Toni." "Toni Saric" was the alias Baresic had used in gaining entry into the United States….etc. 4. Letterhead Insufficient – With computer technology, it is very easy to reproduce letterheads. Thus, now, letterheads will not be sufficient to authenticate a piece of writing. 5. Emails and Electronic Communications – Same problem as letterhead. The question is whether the email address was secure enough to prove that others did not have the access to the account. E. Telephone Conversations – When the contents of a telephone conversation are sought to be proved, the proponent must authenticate the conversation by establishing the parties to it. i) FRE 901(b)(6): Telephone conversations – [OUTGOING] Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if… a. Call to Individual – (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or b. Call to Business – (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. ii) FRE 901(b)(5): Voice identification – Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. iii) When INCOMING Telephone Call, Self-Identification is Not Enough – Self-Identification by the caller is not sufficient for authentication because of the risks that someone may impersonate the caller or the callee may fabricate the entire conversation. United States v. Pool (1981) – Eight defendants were convicted of several charges arising from participation in a scheme to import approximately 225,000 lbs of marijuana. D (Loye) appealed his conviction for using a telephone to facilitate the illegal importation on the ground that the phone call alleged to be from him was insufficiently authenticated. This is because the call was only authenticated by the fact that the person who called the undercover agent identified themselves as “Chip,” a nickname used by Loye throughout the investigation. Held: A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X. Loye’s use of the nickname “Chip” does not make out a prima facie case that he was the caller. The possibility that someone else was using his nickname in this clandestine operation is too great to properly admit the statement of identification. F. Tape Recordings – A sound recording is properly authenticated only it is demonstrated that the recording is an accurate reproduction of relevant sounds previously audited by a witness. 1. Requirements – As a general rule, at least in the context of a criminal trial, this requires the prosecution to go forward with respect to the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers. i) FRE 901(b)(5): Voice identification – Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker ii) Government Has Burden of Proof – This burden properly falls to the government because it has access to such information in a way the criminal defendant does not. A defendant will often hear the tape recording for the first time in court iii) Judge has Broad Discretion – The trial judge has broad discretion in determining whether to allow a recording to be played before the jury. Strict compliance with test is not required, if the trial judge determines that the recording accurately reproduces the auditory evidence. United States v. Biggins (1977) – Ulysses Biggins appeals from his conviction for possessing and distributing heroin. Lydes was an informant for the DEA, and his apartment was monitored by means of electronic surveillance. From his vantage point in an apartment across the street, agents recorded the conversation where Lydes sold Wells heroin. At the appellant's trial, the government introduced the original tape recording of the conversation and a re-recording of the original tape, filtered for noise. The appellant objects that the government's foundation for the tape recordings was deficient because it failed to satisfy the test in several ways. First, appellant argues that the government failed to prove the competency of the operator. Second, the appellant contends that the government failed to establish the accuracy of the recording. Third, the appellant claims that the government's witness failed to identify a voice on the tape as that of the appellant. Held: Here, the evidence was property admitted.There was sufficient evidence that the tape recording was authentic outside the foundation testimony established by the agent. Lydes and Wells testified regarding the conversation in Lydes's apartment. The tape recording portrayed that conversation precisely as they described it. The record thus reveals a correspondence between the agents' accounts of the conversation and the version evidenced by the sound recording sufficiently close to lessen the importance of explicit testimony that the recording itself was accurate. Second, the appellant asserts that the government failed to identify Biggins's voice on the tape. This contention is meritless. Lydes, who participated in the conversation with defendant Biggins and thus was familiar with Biggins's voice, clearly identified the defendant's voice on the tape. FRE 901(b)(5) makes clear that the witness's familiarity with the voice sought to be identified, whether the familiarity developed before or after the time of the recording, is sufficient to ensure reliable voice identification. G. Photographs – If photographer is unavailable at trial, the party will need a witness who was there, had personal knowledge, and can state that the photographer was a fair and accurate depiction of the scene. 1. X-Rays – To introduce an x-ray into evidence as demonstrative evidence (i.e. to prove an injury), either the person who took the x-ray (e.g. doctor, technician) or an expert must testify of its fair depiction before the image will be authenticated. H. Self-Authenticating Exhibits – Some pieces of evidence are so inherently trustworthy that the proponent will not be required to authenticate. The proponent only has to present the actual piece of evidence. The opposing party, however, can nevertheless still challenge the piece of evidence. 1. FRE 902: Self-authentication – Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following. (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory… (2) Domestic public documents not under seal – [I]f having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine… (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position… (4) Certified copies of public records – A copy of an official record or report …including data compilations in any form, certified as correct by the custodian … (5) Official publications – Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and periodicals – Printed materials purporting to be newspapers or periodicals. (7) Trade inscriptions and the like – Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents – Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public… (9) Commercial paper and related documents – Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. (11) Certified Domestic Records of Regularly Conducted Activity – The original or a duplicate of a domestic record of regularly conducted activity [if certified that it] (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;(B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. (12) Certified Foreign Records of Regularly Conducted Activity.--In a civil case, the original or a duplicate of a foreign record of regularly conducted activity… [if similar requirements as (11)] II. Best Evidence Rule A. Generally – The Best Evidence Rule provides that in proving the terms of a piece of writing [or recording or photograph], where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. 1. FRE 1002: Requirement of Original – To prove the CONTENT of a writing, recording, or photograph, the ORIGINAL writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. B. Defining a “Writing, Recording, or Photograph” – It will not always be clear what constitutes a “writing, recording, or photograph.” This is especially true when letters appear on an object. 1. Chattels versus Writings – When the evidence is an object bearing a mark or inscription and is therefore a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing. In making this determination, the trial judge should consider the policy considerations behind the rule such as the fact it was adopted where there was a substantial hazard. of inaccuracy Ex: Similar question regarding the number on officer’s badge or a license plate, words on a tombstone or traffic sign, odometer reading, words on a certificate or sales receipt, or the serial number on a manufactured product i) Factors – In deciding whether the Best Evidence Rule should apply to inscribed chattel, the following are factors that the judge should consider… a. Relative importance of the communicative content of the inscribed object in the case b. Simplicity or complexity of that content and consequent risk of error in admitting other evidence; c. Strength of the proffered evidence, taking into account corroborative witnesses or evidence and the presence or absence of bias or self-interest on the part of the witnesses; d. Breadth of the margin for error within which mistake in any testimonial account or other proof would not undermine the point to be proved; e. Presence or absence of an actual dispute as to content; f. Ease or difficulty of producing the object itself; g. Reasons why the proponent of other evidence of content does not have or offer the object itself United States v. Duffy (1972) – Jury convicted D of transporting a motor vehicle in interstate commerce from FL to CA knowing it to have been stolen. D was employed in the body shop of an automobile dealership in FL. The stolen vehicle was taken by the dealership as a trade-in on the purchase of a new car. The vehicle was sent to the body shop for repair. The vehicle and D disappeared over the same weekend. D claimed that he had hitchhiked to CA and that although D did work on a stolen vehicle in the automobile dealership in FL (explaining the fingerprints on the rearview mirror), he had not stolen and transported it to CA. Government’s witnesses testified that the trunk of the stolen car contained 2 suitcases, and inside one of them was a white shirt imprinted w/ a laundry mark reading “D-U-F.” Should Gov’t have been required to produce the shirt at trial? Held: No. The admission of the W2 and W3’s testimony did not violate the Best Evidence Rule. The Best Evidence Rule only applies to proof of the contents of a writing. The shirt w/ a laundry mark does not constitute a writing and therefore does not fall under the Best Evidence Rule. Because the writing here was simply, the inscription “D-U-F,” there was little danger that the witness would inaccurately remember the terms of the “writing,” Additionally, the terms of the “writing” were by no means central or critical to the case against D. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice D. The shirt was collateral evidence of the crime. It was only one piece of evidence in a substantial case against D. C. Defining an “Original” 1. Originals – The definition of original writing, recording or photograph is set forth in FRE 1001(3)… i) Writing or Recording – An "original" of a writing or recording is the writing or recording itself OR any counterpart intended to have the same effect by a person executing or issuing it. ii) Photographs – An "original" of a photograph includes the negative or any print therefrom. iii) Computer Data – If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". 2. Use of Duplicates – A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original i) FRE 1003: Admissibility of Duplicates – A duplicate is admissible to the same extent as an original UNLESS (1) A genuine question is raised as to the AUTHENTICITY of the original or (2) In the circumstances it would be UNFAIR to admit the duplicate in lieu of the original. D. Proving Content & Applicability of the Best Evidence Rule – The Best Evidence Rule only applies where the evidence is introduced “to prove the content of a writing, recording, or photograph.” This means that if all that is proved is that a piece of evidence exists, was executed, or was delivered, the rule does not apply. 1. When Best Evidence Rule is Applicable – There are two situations in which content is indeed the point to be proved… i) Substantive Law Requires – When the substantive law forces the content of a writing into prominence and in effect simply requires one party or another to prove that content Ex. Contract Law & Parole Evidence Rule – When parties have integrated agreement into a writing, they may not later alter or vary the terms of that agreement by parole evidence (evidence of oral statements uttered during negotiation or signing) Ex: Contract Law & Statute of Frauds – To be invoked, writing must memorialize the agreement ii) Strategy Requiring Proof – When a party chooses to prove content, even though she might theoretically present an adequate claim or defense w/o such proof (i.e. party strategically forces the writing into prominence) Ex. Auto Accident Case – If there were no bystander witnesses, then no real option than to produce the police report itself 2. When the Best Evidence Rule is NOT Applicable – When the matter to be proved has been “incidentally recorded,” but in which neither substantive law nor party strategy actually forces the writing into prominence 3. Ambiguous: Lack of Content – If there is a lack of content contained in the writing, E. Exceptions to Best Evidence Rule – FRE 1004 provides that…The original is NOT required, and other evidence of the contents of a writing, recording, or photograph is admissible if… (1) Originals Lost or Destroyed – All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original Not Obtainable – No original can be obtained by any available judicial process or procedure; or (3) Original in Possession of Opponent – At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral Matters – The writing, recording, or photograph is not closely related to a controlling issue F. Judge v. Jury Determinations 1. FRE 1008: Functions of the Court and Jury i) Judge – When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact [i.e. conditional relevance], the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. ii) Jury – However, when an issue is raised… (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, …the issue is for the trier of fact (i.e. jury) to determine as in the case of other issues of fact Ex: Gretchen sues St. Anne’s Hospital and Dr. Mazo for negligence in an operation, suffered due to her vomiting in her oxygen mask while under a general anesthetic. Dr. Mazo admits that it would be negligent to place Gretchen under anesthesia if she had eaten only 1 hr earlier, but St. Anne’s introduces her admitting record, which shows that 9 hrs had elapsed since she last ate. During rebuttal, Gretchen calls Sally, a nurse who admitted Gretchen. Sally testifies that Gretchen had told her she had eaten a meal just one hour prior to coming to the hospital. Sally wrote the number “1” on the admitting form and testifies that after the failed surgery Dr. Mazo forced her (on threat of dismissal) to change the “1” to a “9.” Before altering the form, however, she made a photocopy showing her prior entry. Gretchen offers the photocopy, and the defendants raise objection to the copy and Sally’s testimony, arguing that the copy is a forgery that does not accurately reflect the contents of the original. Argument: D would argue that the duplicate is inadmissible b/c there is genuine question as to its authenticity, and that, given the circumstances, it would be unfair to admit the duplicate in lieu of the original. ACN notes that a duplicate will serve the ends of the original if it is the produce of a method which insures accuracy and genuineness. Here there is an issue of authenticity. Send the issue to the jury III. PRIVILEGES A. Generally – Privileges are intended to protect certain societal relationships and values, even though such protection may impose significant costs upon the litigation process. 1. Purpose – A primary goal of most privileges is to encourage the free flow of communication in various relationships. Some privileges are intended to prevent governmental interference with certain favored relationships, such as marriage. Others are designed to further the effective functioning of government by limiting the access of litigants to state secrets or confidential communications by public officials. i) Balance of Competing Interests – The scope of privilege law determines the balance struck between the interests of society in maintaining zones of privacy in human relationships and the right of litigants to obtain evidence need to prosecute claims or defend themselves in court. 2. Not Codified, Changes Require Congressional Approval – Privileges remain the most significant area of evidence law not codified by the FRE. Rather, FRE 501 and 28 USC § 2074(b) provide the only regulation on the subject, with the latter holding that “any rule creating, abolishing, or modifying an evidentiary privilege shall has no force or effect unless approved by an Act of Congress” i) FRE 501 – Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience…. ii) State Courts Vary – Most states with evidence codes modeled after the Federal Rules have codified their rules of privilege. There is considerable variation from state to state regarding what privileges are recognized and the scope of those privileges. iii) Look to Proposed FRE for Guidance – For guidance, the courts often look to the proposed rules of evidence. These are not binding, but provide court with reference to make their determination. a. Proposed FRE 503(b) – A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client… (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client 3. Different from Professional Ethical Obligations – A profession may adopt a code of ethics imposing a duty on its members to protect the confidentiality of disclosers by the client or patient, regardless of whether an evidentiary privilege is recognized for such disclosures. i) Professional Privilege IRRELEVANT in Court Setting – However, absent a evidentiary privilege, a professional person who is called as a witness may be judicially compelled to disclose confidential communications from a client or patient, regardless of the ethical standards of obligation adopted by the profession and regardless of what assurances were given to the client or patient. IV. ATTORNEY-CLIENT PRIVILEGE A. Generally – A client has the right not to disclose (and the right to prevent this lawyer from disclosing) any confidential communication between the two of them relating to the professional relationship. 1. Civil Context: Underlying Facts Not Protected – In civil cases, a plaintiff can call the defendant as a witness during the plaintiff’s case-in-chief and attempt to establish his case based on the defendant’s own testimony. Even if the defendant discussed the underlying facts with his attorney, he may not invoke the attorney-client privilege with respect to questions about the underlying facts 2. Policy Argument (Bentham): Protects Only the Guilty? – Argued that attorney-client privilege only protects guilty because if the attorney was forced to say everything that he had heard, the client would not be worried if he were innocent. The only consequence to not recognizing this privilege would be that the guilty would not be able to put on a false defense B. Confidential Communications – Only “confidential” communications are protected by this privilege. A disclosure is “confidential” if the client intends that it not be disclosed to person other than the lawyer and those working with lawyer. The client need not expressly state that he wants communication to be held confidential. 1. Non-Verbal Communication – When the client communication is made nonverbally, the communication is still covered by privilege and protected since it was intended as a disclosure and intended to remain secret. Ex: Client rolls up his sleeve to show a scar that proved he had been in a knife fight he had with the deceased 2. Physical Objects and Documents – The attorney-client privilege is not strictly limited to communications but extends to protect situations where the client turns over to the lawyer physical evidence or documents. i) If Only Knowledge, No Duty – If the lawyer never had custody of the item, there is no duty to disclose what he has learned about the item. He has not participated in the concealment of the evidence. ii) If Attorney Removes, Alters, Takes Custody, and/or Defendant Brings Evidence, Split Obligations a. If Decline to Take, No Duty – Attorney may decline to take possession of the evidence outright, leaving it with the client. There is no duty to disclose either the evidence or the source at this point. b. If Attorney Possesses for Reasonable Time Period, Must Disclose Evidence but NOT Source – If the usefulness of a piece of evidence cannot be gauged without taking possession, attorney may possess it for a reasonable time before turning it over to prosecution. Then the attorney is obligated to turn the evidence over but cannot be compelled to disclose how or where he obtained it. Ex: When a ballistics or fingerprint test is required; DNA testing, etc. c. If Attorney Removes or Alters Evidence, Must Disclose Evidence AND Source – Whenever an attorney removes or alters evidence, the privilege does not protect the disclosure of the original location or condition of the evidence. i. Reasoning – When the defense counsel alters or removes physical evidence, he deprives the prosecution of the opportunity to observe the evidence in its original condition or location. This permits the defense in effect to “destroy” critical information. To extend the attorney-client privilege might encourage defense counsel to race the police to seize critical evidence. People v. Meredith – D (Scott) is charged with murdering Wade. When Scott meets with his attorney in jail, he tells him that he saw a wallet near Wade’s body after the crime, picked it up, tried to burn it, and threw it into a burn barrel behind his house. The lawyer sends an investigator to find the wallet. The attorney then turns wallet over to the police, tells them that he believes the wallet belonged to Scott, but refuses to say how he came into possession of it. Held: Lawyer must reveal how he got the wallet. Had Lawyer left the wallets its original position and condition, the lawyer would have no obligation to disclose the fact that he new of its whereabouts. Once he chose to remove it or alter it, however, he necessarily deprived the prosecution of its opportunity to observe the evidence in its original condition or location. Once this happened, the original location and condition of the evidence “loses the protection of the privilege,” and the attorney must disclose the location and condition. 3. Presentation of Evidence – In offering evidence, prosecution should present the information in a manner which avoids revealing content of the attorney-client communication or original source of the information. i) Stipulation as Alternative Method – When it is not possible to elicit testimony without identifying the witness as the defendant’s attorney or investigator, the defendant may be willing to enter a stipulation which will simply inform the jury as to the relevant location or condition of the evidence in question. When such a stipulation is proffered, the prosecution should not be permitted to reject the stipulation in the hope by requiring defense counsel personally to testify to such facts, the jury might infer that counsel learned of those facts from defendant. Ex: In Meredith (supra), the prosecutor simply asked the investigator where he found the wallet; he did not identify the man as a defense investigator or trace the discovery of the wallet to an attorney-client communication. 4. Waiver of Privilege – The presence of a “nonessential” third person when the communication takes place, or its later disclosure to such a person, may indicate that the communication was not intended to be confidential. If so, the privilege will be treated as having been waived. Ex: If the communication takes place on a crowded elevator, where it is overheard by third person, this setting will indicate that the client could not reasonably have expected confidentiality. Similarly, if the client, following the conference with the lawyer, tells a friend about the conference, this is likely to be held to be an implied waiver of confidentiality. C. Legal v. Professional Services – The attorney-client privilege only applies to confidential communications made for the purpose of rendering professional legal services to the client. It does not apply to other professional services such as business, financial, or personal advice. 1. Not Covered – Examples of services not covered include: accounting, shipping agent, scrivener, investigator, business agent, negotiator, business partner, attesting witness, and sometimes tax consultant 2. Proposed FRE 503 – Would extend the attorney-client privilege to the provision of general legal services [i.e. “professional legal services”] rather than merely legal advice. D. Involving or Disclosing to Communicative Intermediaries – Cases by the Supreme Court have recognized a concern that other persons may be necessary to act as an interpreter or intermediary between the lawyer and client. Thus, privilege should be extended other these other people in limited circumstances. 1. General Rule – If a communication is between client and some third party, but the third party is assisting the lawyer in rendering legal services, then the privilege applies. However, if what is sought is not legal advice and rather only the professional services of the third party, then no privilege exists. Ex: Accounting concepts are a foreign language to some lawyers, and the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not destroy privilege. However, if what is sought is not legal advice but only accounting service or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists. United States v. Kovel (1961) – Involved the issue of whether the attorney-client privilege extends to a non-lawyer employed by a law firm. Kovel (D) was a former IRS agent that was employed by a law firm specializing in tax law. A grand jury was investigating federal tax violations by a client of the law firm. Kovel was subpoenaed to testify but the law firm maintained that since Kovel was an employee under the direct supervision of the partners, Kovel could not disclose any communications by the client or the result of any work done for the client unless the client consented. The US Attorney argued, however, that the privilege did not apply to one who was not an attorney. Held: What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. Accounting concepts are a foreign language to some lawyers, and the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not destroy the privilege. The presence of the accountant is necessary, or at least highly useful for the effective consultation between the client and the lawyer which the privilege is designed to permit. 2. Proposed FRE 503(b) – A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made… (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and the lawyer's representative… 3. Work Product Privilege May Also be Applicable – Even if the attorney-client privilege does not cover the information provided by a professional retained by an attorney, the work-product privilege may protect the information nonetheless (or at least any thoughts of the attorney that accompany reports of professional). E. Joint Clients and Pooled Defenses – If two or more clients retain the same attorney with respect to matters of common interest, the communications made between the joint clients and the attorney are privileged with respect to outsiders. Thus, a joint client can communicate with an attorney in the presence of another joint client without destroying confidentiality. 1. Common Interests, Separate Attorneys – Most courts also recognize a privilege if two clients retain separate attorneys but still have a common interest in the matter being litigated. Allowing such pooling of information among clients with overlapping interests is though to encourage better case preparation and to conserve time and expense. 2. Look to Time of Communication – In analyzing whether there an attorney-client privilege exists after joint clients have split and have different interests (i.e. litigating against each other), look to the time when the communication was made. 3. Exception – The privilege is not applicable when the interests of the party are no longer common. i) Proposed FRE 503(d)(5): Joint Clients – There is no privilege…As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients. F. Corporate Clients – Corporations are protected by the privilege of attorney-client. However, there has been considerable disagreement to the extent of this protection. 1. Must concern Employee’s Employment – The mere fact that one party to the communication is an employee is not sufficient; communication must relate to the employee’s performance of corporate duties. 2. Confidentiality – The privilege will apply only if the communication is treated confidentially. This means that disclosure should be limited to those persons, who because of the structure of the corporation, must know of the communication in order to ensure that the attorney is obtaining full and accurate information. 3. Routine Reports Not Covered – The communication must be primarily for the purpose of obtaining legal services. Thus, with a routine report generated in ordinary course of business, the privilege will not apply. i) Underlying Facts Never Covered – The attorney-client privilege does not protect the underlying facts of the case, only communications. Thus, the underlying facts disclosed through a questionnaire will not be covered. If this limitation was not recognized, there would be no discovery in civil cases. ii) Work Product Privilege – Even if information/report is not covered under the attorney-client privilege (e.g. spoke to someone outside of the company), it may nevertheless be protected under work-product. Upjohn Co. v. United States (1981) – An independent audit of Upjohn Co. revealed that a subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. In response, Upjohn (and its corporate counsel Thomas) decided to conduct an internal investigation. A letter was sent out indicating that the management needed full information concerning any questionable payments made by Upjohn. Managers were instructed to treat the investigation as highly confidential and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. All responses were to be sent to Thomas. After the information was collected, Upjohn voluntarily submitted preliminary reports to both the SEC and the IRS along with a list of all those interviewed or those who had responded to the questionnaire. The government subsequently demanded production of documents including “written questionnaires… [and] memoranda or notes of the interviews.” Upjohn refused claming that the documents were protected by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. Held: The Court held that the lower court was wrong in using the “control group” test (under which the questionnaire responses would not be privileged because the foreign managers were not sufficiently high rank to “personify” the corporation). Use of the control group test, the Court held, would frustrate the purposes of the attorney-client privilege because it would discourage the communication of relevant information by the corporation’s employees to attorneys seeking to render legal advice to the client corporation. Often, quite low- level employees will have the information by that the lawyers need, and the fact that these employees are not part of the control group is irrelevant. Similarly, it will often be low-level employees who need to carry out the lawyer’s advice. The Court also held that, to the extent that some of the foreign managers orally responded instead of by written questionnaire, the lawyer’s notes and recollections of the conversations were protected by work product immunity. G. Exceptions to Coverage of Attorney-Client Privilege – There are several exceptions to the attorney-client privilege, where the privilege is deemed not to exist even thought the standard requirements are met. 1. Future Crime or Fraud – When the client a client seeks assistance in carrying out or defending against future crimes or wrongs, the attorney-client privilege does not apply. i) Timing – The relevant period for the future crimes exception is the time the assistance was sought, not when the testimony of the attorney is eventually sought. State v. Phelps (1976) – D was charged with a DUI. He advised his attorney that he could produce several witnesses who would testify falsely that he was not driving at the time of the alleged offense. Upon receiving assurances that perjured testimony would not be used in the case, the attorney refused to represent D and subsequently D retained another attorney who used the evidence to successfully defend against the charges. State appeals. Held: Privilege is not available. At the time of the attorney-client discussion, the crime of perjury had not been committed. The privilege is not meant to protect discussion of future crime or fraud designed to conceal past wrongdoing. 2. Deceased Client – In general, the attorney-client privilege survives the death of the client. There is one exception: if the suit is a will contest or other case in which the issue concerns who will receive the deceased client’ property, the privilege does not apply. Ex: Cliff dies, leaving an ostensibly valid will that gives his entire estate to Son and that completely disinherits Daughter. D sues to have the will declared invalid on the grounds that Client was incompetent when he made it. Son may call Lawyer, who prepared the will, to testify as to the conversations between Client and Lawyer leading up to the will, to show that Client had control of his faculties. Similarly, Daughter can also call Lawyer to prove her theory as well. 3. Attorney-Client Dispute – If the lawyer and client become involved in a dispute between themselves concerning the services provided by the lawyer (e.g. malpractice or ineffective counsel), the privilege does not apply to any communications concerning their dispute. Ex: If lawyer sues client for a fee, the lawyer may testify as to communication between them that would be otherwise privileged. The lawyer may similarly disclose otherwise-privileged confidences as part of his defense of a malpractice action by the client. 4. Joint Clients – The privilege may be inapplicable to a dispute between multiple clients who were originally on the same side of the transaction or litigation. Ex: Driver is sued by Passenger for injuries arising out of an auto accident. Insurer, who insures Driver, hires Lawyer for the case. Driver makes confidential communications with Lawyer. Later, Driver and Insurer have a dispute about the policy limits. In that dispute, most courts would hold that Insurer may compel Lawyer to testify about otherwise-privileged communications between Driver and Lawyer, since Lawyer represented both Driver and Insurer. 5. Client Identity – Generally, basic facts about the attorney-client relationship are not privileged, even though the attorney may know such facts only through his confidential association with the client. Thus, the identity of the client, the fee arrangement with the attorney, and sometimes, the address, location or whereabouts of the client, is not privileged. i) Exception – Under the “legal advice” exception, it is incumbent upon the attorney to show that a strong possibility exists that disclosure of the information would implicate the client in the very matter for which legal advice is sought. This covers any potential suit including both criminal and civil cases. ii) Ex Parte Hearing – A well recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex parte hearing. In re Grand Jury Investigation (Durant) (1983) – The FBI was investigating theft and checks that had been made payable to “IBM.” One of these checks had been received and endorsed by an attorney’s firm for services rendered for a client on two cases, one which was “finished” and one that was “open.” Durant (attorney) refused to disclose the identity of his client at a grand jury to whose credit the proceeds had been applied, asserting the attorney-client privilege and claiming that the identity could incriminate that client in criminal activity. Held: The focus of the inquiry is whether disclosure of the identity would adversely implicate the confidentiality of communication. Seeking to invoke this privilege, it was incumbent upon Durant to show a strong possibility existed that disclosure of the information would implicate the client in the very matter for which legal advice had been sought in the first case. Here, because Durant failed to satisfy his burden of demonstrating a strong possibility that discloser of the identity of his client would implicate that client in the very matter for which legal advice had been initially sought, privilege denied. 6. Proposed FRE 503(d): Exceptions – There is no privilege under this rule: i) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or ii) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or iv) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or v) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients. V. PSYCHOTHERAPIST-PATIENT (& PHYSICIAN-PATIENT) PRIVILEGE A. Generally – Nearly all states, and some federal courts, recognize a psychotherapist-patient privilege. It is actually more widely accepted than a physician-patient privilege. 1. Rationale – There are three recognized reasons why this privilege exists… i) Serves Public Interest – The privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of the citizenry, no less than its physical health, is a public good of importance. ii) Necessary for Treatment – Effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. The mere possibility of disclosure may impede the development of a confidential relationship necessary for effective treatment. iii) No Evidentiary Loss – Not recognizing the privilege would not cause a significant loss of evidence, because without the privilege patients would not make many litigation-relevant statements anyway. 2. Mental or Emotional Condition – The privilege extends only to the communications made for the purpose of obtaining treatment or diagnosis of the patient’s mental or emotional condition. This means that things like marriage counseling are covered (heavily emotional) but educational or vocational counseling are not. B. Waiver because Specific Threat – If a therapist believes that his patient may be immediately dangerous to others, courts may allow or require (depends on jurisdiction) the therapist to disregard privilege and give warning to authorities or to any person he identifies as a likely victim. 1. Duty of the Professional Responsibility v. Evidentiary Privilege – The 9th and 6th Circuits have held that merely because a code of professional responsibility imposes a duty of the psychologist to warn another about potential harm does not necessarily mean that the evidentiary privilege is waived to the extent that the psychologist will be forced to testify about those threats. U.S. v. Chase (2003) – Defendant, during therapy sessions, made specific threats against the FBI. The therapist disclosed the threats to the FBI and the FBI asks her to continue reporting. The threats continued to be made and eventually the FBI to arrest the defendant. D argues, regardless whether the therapist was required to disclose the threats under professional responsibility code, it was still covered by privilege and thus cannot be used as evidence against the defense. Held: There were two different issues. The first had to do with the immediate harm to a party b/c of threats and duty under professional responsibility. The second had to do with the evidentiary issue. The second (i.e. privilege) was broader and prohibited the therapist from testifying (rather than merely reporting) about the threats. Court rules that the government may prosecute the D, but therapist cannot testify. C. Broadly Applicable to Professionals – The privilege not only extends to medical doctors (psychiatrists) and psychologists, but it also covers conversations between patients and a licensed social worker as well. 1. Criticism – The dissent in Jaffee makes the point that this broad application is troublesome because a similar privilege does not exist for other people that confidential disclosures are made to such as mothers, fathers, close friends, or even bartenders. Jaffee v. Redmond (1996) – P, the administrator of decedent Allen's estate, filed this action alleging that Allen's constitutional rights were violated when he was killed by respondent Redmond, an on-duty police officer employed by respondent village. The court ordered respondents to give P notes made by Karen Beyer, a licensed clinical social worker, during counseling sessions with Redmond after the shooting, rejecting their argument that a psychotherapist-patient privilege protected the contents of the conversations. Neither Beyer nor Redmond complied with the order. Held: The confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure. Furthermore, this privilege extends beyond psychiatrists and psychologists to include social workers as well. VI. SPOUSAL PRIVILEGES A. Generally – Two distinct privileges exist to protect he marital relationship: (1) the privilege against adverse spousal testimony, and (2) the privilege protecting confidential communications. 1. Rationale – Both privileges have historically been justified because they promote marital harmony. The adverse testimony privilege does so because requiring one spouse to testify against the other will inevitably break up the marriage. The confidential communications privilege promotes marital harmony by encouraging the exchange of confidential information between spouses. B. Adverse Testimony Privilege – The adverse testimony privilege (sometimes called spousal immunity) gives a spouse complete protection from adverse testimony by the other spouse. 1. Only by Testifying Spouse – In federal cases, the adverse testimony privilege belongs only to the testifying spouse, not the party spouse. Thus, a defendant in a criminal trial may not block spouse’s testimony. Trammel v. United States (1980) – W, D’s wife, was arrested for narcotics smuggling during a routine airport customs search. In return for not being prosecuted, she agreed to cooperate with the government in its case against D. She testified in detail about the roles she and D played in a heroin distribution conspiracy. D, however, asserted claim to a spousal privilege to prevent her from testifying against him. Held: Traditional spousal immunity privilege swept more broadly than any other similar privileges. When invoked, it excluded not only private communications but also evidence of criminal acts and communications made in the presence of third parties. The foundation for such a rule has been eroded over time and even the modern justification is weak because when one spouse is willing to testify against the other in a criminal proceeding, their relationship is almost certainly in disrepair. Thus, the existing rule is modified so that the witness-spouse alone has privilege to refuse to testify adversely. 2. Third Party Testimony – Courts are split concerning whether a spousal communication admissible under a hearsay objection can be used against the other spouse. Ex: Drunken husband hits old man on the way home from party. When wife enters the house she is panicking and says to babysitter that H hit the old man. Court admits W’s statement through B’s testimony under excited utterance hearsay exception. H objects saying covered by spousal privilege. Courts are split in whether this statement should be admissible. C. Confidential Communications Privilege – The confidential communications privilege protects only against the disclosure of confidential communications made by one spouse to the other during the marriage. 1. Acts as Communication – In rare instances, the privilege will cover not only utterances but also conduct that was intended to convey a confidential message from the actor to the observer. Ex: H comes home from robbing a bank and shows the money to his wife. Asks W what he should do with the money. Government wants to admit the conduct, but not the statement. Held: The conduct was too intertwined with the utterance and was intended to be confidential communication. Probably covered United States v. Estes (1986) – D stole money from a bank and brought it home. He showed it to his wife, who then helped him launder the money and bury a substantial portion of it. This was done because the wife knew they were poor and could not adequately provide for any children. Eventually, however, the two were divorced. Wife went to the FBI and, obtaining immunity, she agreed to “willingly” testify before a grand jury about the money, her husband’s confession, their activities, and her acts. D was convicted but appealed on the grounds that the testimony involved disclosure of confidential communications. Held: The admission of the bank robbery was a communication what was a necessary precursor to any involvement as an accessory after the fact. Thus, this part of the communication should not have been admitted. However, the balance of the testimony dealing with the handling and disposition of the stolen money was properly admitted. This is because many courts recognize the “partnership in crime” exception to confidential communication privilege. 2. Exceptions where Privilege NOT Applicable – Confidential communications privilege is not applicable if: (1) spousal suits, such as divorce or child custody litigation, (2) spousal communications in the presence of others, and (3) joint-participation in a crime by both spouses.