EVIDENCE

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					                                      EVIDENCE

The Trial
    Jury Selection  Voir dire
    Opening Statements
          o Party who has burden of proof goes first
                 Civil trial  plaintiff
                 Criminal  prosecution
    Presentation of Evidence
          o Plaintiff‟s case-in-chief
                 [after plaintiff rests, defendant will usually move for directed
                    verdict  plaintiff‟s case insufficient, judgment as a matter of law,
                    even if everything plaintiff said is true, they still cannot prevail]
          o Defendant‟s case-in-chief
                 Defense material & affirmative defenses
                 [after defense rests, both sides will seek judgment as a matter of
                    law (usually rejected)]
          o Plaintiff‟s rebuttal
                 Can attack anything new brought out in defendant‟s case-in-chief
          o Defendant‟s rejoinder
                 Can attack anything new brought out in rebuttal
    Closing Arguments
          o Prosecution/Plaintiff gets the last word
          o Can only reference evidence that was properly admissible
    Jury Charge
          o Who has the burden of proof, what standard, presumptions, judicial notice,
            credibility factors/problems, impeachment
    Deliberation & Verdict

Judge  decides questions of law
    Decides whether evidence is admissible
    If there is no jury (bench trial or equity)  judge decides questions of fact
    Decides questions of fact upon which admissibility of evidence depends
          o Rule 104(a)  Preliminary Questions – Questions of Admissibility
              Generally
                   Preliminary questions concerning the qualification of a person to
                      be a witness, the existence of a privilege, or the admissibility of
                      evidence shall be determined by the court . . .
                   Judicial application of Rule 104  party wishing to introduce
                      evidence has burden of establishing the relevancy & admissibility
                      of the evidence in question
Why have a trial? Purpose of a trial?
    Ascertain what happened
          o Evidence  means to that end
                   To prove facts that are in issue
                     Proof  the end result

Two types of evidence
   Testimonial  comes from witness viva voce (by voice)
   Real  physical, tangible evidence  the thing itself

Direct v. Circumstantial Evidence
    If you believe evidence  direct
           o Direct evidence proves a fact (generally material) without requiring a
               inferences
    Circumstantial  indirect, collateral facts
           o Does not itself address a fact in issue
           o Produces inferences that bear on a fact in issue
    Credibility
    No correlation between the type of evidence and its quality

Rules of evidence  rules of omission & exclusion
    What is appropriate to go to jury? What can they handle?

Federal Rules of Evidence (1975)
    Governs all proceedings in federal court
          o Civil & criminal
    Does not matter how case got into federal court
          o Ex. Diversity  state substantive law, but federal rules of evidence
                   State rules of evidence irrelevant (with some exceptions)
    ¾ of the states have adopted the FRE
          o NY  no code of evidence (still uses common law, but there are some
              statutes concerning evidence) [VA also has no code of evidence]

Relevancy
    The judge determines whether evidence is relevant
    All evidence, without exception, must be relevant to be admissible
           o However, not all relevant evidence is admissible (relevant evidence must
               still comply with other exclusionary rules)
    Relevance is not an inherent characteristic of a piece of evidence, but depends on
       the facts of the case (exists only as a relation between an item of evidence and a
       matter properly provable in a case)
           o Key to relevance  it describes how one thing relates to another thing, if
               at all
           o The relationship indicates that there is some connection between 2 things,
               based on inferences
Rule 402  Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
    All relevant evidence is admissible, except as otherwise provided by the
       Constitution of the US, by Act of Congress, by these rules, or by other rules
       prescribed by the Supreme Court pursuant to statutory authority
      Evidence which is not relevant is not admissible
           o If relevant  rational bearing on what happened
           o Essence of 402  irrelevant evidence is inadmissible & all relevant
               evidence will be admitted, subject to exclusionary rules
           o Opponent of relevant evidence must advance a specific exclusionary rule
               or principle in order to obstruct the admissibility of evidence
Rule 401  Definition of “Relevant Evidence”
    “Relevant evidence” means evidence having any tendency to make the existence
       of any fact that is of consequence to the determination of the action more
       probable or less probable than it would be without the evidence
    401 is a very minimal standard  “any tendency”
    experience, common sense, science & logic  draw upon these to determine if
       probability that something happened is increased or decreased
    Material  has consequence or bearing on the case under the applicable
       substantive law
           o Rule 401 includes the concept of materiality  “of consequence”
           o Irrelevant includes non-materiality
    Under 401  evidence is relevant if it is (1) probative of (2) a fact of
       consequence to the determination of the action
           o Probative  means that it makes something more or less likely
           o Fact of consequence to the determination of the action  a fact that is
               properly provable in a case
                    This describes facts that relate to elements of a claim, cause of
                       action, or defense, to the credibility of a witness, or to helpful
                       background information
    AC Note of 401  the fact to which evidence is directed need not be in dispute
           o Evidence which is essentially background in nature can scarcely be said to
               be involving disputed matter, yet it is universally offered & admitted as an
               aid to understanding

Inferences v. Counter-inferences
     Multiple inferences don‟t detract from conclusion that evidence is relevant
     Only need one (rational) inference
           o Counter-inferences do not make evidence irrelevant
     Numerous inferences/probabilities may be drawn from a single premise
     A piece of evidence gives rise to an inference if the existence of the existence of
       the evidence logically makes the existence of another thing or fact more or less
       likely
Evidence can be relevant, but insufficient (standing alone)
     “A brick is not a wall”  McCormick (p.75)
Competent Evidence = Admissible (satisfies relevance & no exclusion)

Knapp v. State (Supreme Court of Indiana 1907)
    Defendant appeals a murder conviction, claimed self-defense
    Defendant had heard story that victim killed an old man
          o Relevant, defendant had reason to believe
      Prosecutor wants to prove that defendant heard nothing/hadn‟t heard that story
          o Tries to prove the non-existence of the fact
          o By showing evidence that the old man died of other causes
                   Relevant  decreases the likelihood that someone spread the story
                     & decreases likelihood that defendant heard such story
      Evidence was relevant  Conviction affirmed

Rule 403  Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time
    Although relevant, evidence may be excluded if its probative value is substantially
       outweighed by the danger of unfair prejudice, confusion of the issues, or
       misleading the jury, or by consideration of undue delay, waste of time, or needless
       presentation of cumulative evidence
    (some) grounds for excluding relevant evidence
    “may”  discretionary  judge makes the determination
    probative value  relative strength of evidence
    Grounds include : (all are discretionary factors
           o Unfair prejudice  may lead jury to decide based on irrational grounds,
              emotional reaction may displace their rational reaction
                    All evidence is offered by a party to influence/persuade the jury to
                      decide in that party‟s favor
                    evidence that has an undue tendency to suggest decision on an
                      improper basis, commonly, but not necessarily, an emotional one
                    risk of unfair prejudice is that the jury may not be able to properly
                      assess or evaluate the evidence
                    not all evidence that may be unfairly prejudicial is excluded,
                      because so evidence that is highly prejudicial is also highly
                      probative of a fact in issue  that is why the danger of unfair
                      prejudice must “substantially outweigh” the probative value
           o Confusion, misleading the jury
                    Often when jury is likely to ascribe excessive, unwarranted weight
                      to the evidence
           o Time consumption, needless presentation of cumulative evidence
                    Rule 403 may be the basis for limiting the number of witnesses to
                      prove a fact, repetitious evidence, evidence that represents an
                      inefficient use of the court‟s time compared to its probative value
    Under the FRE, need for relevant information often is considered greater than the
       potential harm from admitting the evidence
    Balancing of factors  Court must administer a weighted balancing test & decide
       whether the probative value of the evidence is substantially outweighed by one or
       more of these forms of prejudice
Rule 404 & on  concrete rules regarding exclusions of relevant evidence
    As a matter of law, must be excluded
Rule 403  like most exclusionary rules of evidence may be authority for objection at
trial or an in limine motion
      Premise  certain relevant evidence should not be admitted to the trier of fact
         where the admission would result in an adverse effect upon the effectiveness or
         integrity of the fact finding process
      The trial judge must determine whether the adverse effect substantially outweighs
         the probative value of the evidence
              o Trial judge has broad discretion (on appeal, will only be overturned upon a
                  showing of abuse of discretion)
                       Trial judge should also consider alternate means by which the fact
                         sought to be proven can be established
      Rule 403 calls for a balancing test & no evidence is inadmissible simply because
         it is sensational o prejudicial
Pursuant to Rule 105  evidence is not rendered inadmissible simply because it is
admissible for one purpose, but not another  court may admit the evidence subject to a
limiting instruction to jury

Old Chief v. US (US Supreme Court 1997)
    Defendant charge with possession of a firearm by a convicted felon & assault
    Prosecution  must prove every element of an offense beyond a reasonable doubt
           o They enter into evidence the record of defendant‟s previous felony
                   This meets the relevance standard of 401
                   The record says that defendant was convicted of a prior assault
           o General rule  prosecutors are entitled to prove their case the way they
              see fit
    Defendant argues this evidence is unfairly prejudicial
           o Will admit he was a convicted felon, period (stipulate)  there will be no
              mention of assault
           o Prosecution rejects defendant‟s concession
    SC holding  the evidence is unfairly prejudicial to defendant
           o There is alternative evidence available
                   Courts in some cases should opt for the non-prejudicial alternative
           o “by a convicted felon”  just a status element
           o Trial judge abused his discretion
                   The probative weight was substantially outweighed by unfair
                       prejudice
           o AC Note of 403  excluding evidence because it is unfairly prejudicial &
              should be a last resort, & should only occur after judge has determined
              that a limiting instruction to the jury will not be sufficient to offset any
              prejudice

General rule  person‟s financial status in a crime involving financial matters is unfairly
prejudicial & inadmissible
     Exceptions  a change in financial status after crime, a specific need matched by
       the crime
Crime scene photos
    Most courts do let in crime scene photos, even though it is duplicative (because
       they have the police/coroner reports already)
    If a verbal description is admissible, generally allowed to be illustrated (by photo,
       etc.) to the jury
    NY favors allowing in crime scene photos
           o Court of Appeals  any probative value  allowed
                     If only purpose is to inflame the jury  not allowed
                           Ex. Allowing in a wedding photo (to show that party killed
                              was alive) has weak probative value & serves to inflame
                              the jury  would probably be inadmissible
    1993 WTC bombing  US v. Salameh
           o gruesome photos & defendants wanted to stipulate
                     Court  probative & admissible
    Federal courts also favor allowing crime scene photos
Day in the Life Films
    Problems  no control, no cross-examinations, editing
    Potential for unfair prejudice
           o Often the adversary can view before jury
    Has to be a typical day
Courtroom demonstration
    Probably not unfairly prejudicial
    Problem  exaggeration (more so when it is more subjective)

Mistrials
    Not highly favored  would have to be pretty serious
    If inadmissible evidence is shown to jury  mistrial is a last resort
          o Judge will tell jury to ignore what they have just seen
          o Presumption of curative instructions

Objections to admissibility
    Lawyers have the responsibility to object (not the judge)
    Judges have discretion to intervene if they feel appropriate, but this is seldom
       done

Rule 103 – Rulings on Evidence
    (a) Effect on erroneous ruling – Error may not be predicated upon a ruling which
       admits or excludes evidence unless a substantial right of the party is affected, and
          o (1) Objection – In case the ruling is one admitting evidence, a timely
              objection or motion to strike appears on the record, stating the specific
              ground of objection, if the specific ground was not apparent from the
              context; or
          o (2) Offer of proof – In case the ruling is one excluding evidence, the
              substance of the evidence was made known to the court by offer or was
              apparent from the context within which questions were asked
           o Once the court makes a definitive ruling on the record admitting or
             excluding evidence, either at or before trial, a party need not renew an
             objection or offer of proof to preserve a claim of error for appeal

Rule 103  if no timely objection made at the trial, waiver of a right to appeal on that
issue (“making the record”)
     Under 103(a)  there must be a “specific ground of objection”
            o The “fix-it now” rule  gives other side the chance to counter the grounds
                to objection
            o Ex. Problem 2-3 there was not enough to preserve a Rule 403 objection
                (did not object on grounds of unfair prejudice) & therefore, has waived the
                unfair prejudice objection
                     An objection without a stated basis will not serve as the basis for
                        appeal unless the basis is apparent from the context
                     When a party advance a specific ground for objection  that party
                        will have forfeited all other grounds not so specified
     No exceptions to judge‟s ruling needed  the timely objection is sufficient to
        preserve the record
     Timely objections
            o Generally, as soon as inappropriate question asked
            o Generally, as soon as inappropriate answer is given
                     Stricken from the record
            o Prevailing view  an objection must be made as soon as the ground of
                objection becomes apparent
     “Proffer” – Offer of Proof
            o Explain to judge what evidence would be if it was allowed (done outside
                of jury‟s hearing)
            o By offer of proof you:
                     1. Give judge an opportunity to correct his/herself
                     2. Preserve the record for appeal
            o Some offers of proof require witness testimony (outside of jury) & if judge
                decides it is admissible  testimony has to be given again in presence of
                jury (very time-consuming)
Exceptions
     103(d) Plain error – Nothing in this rule precludes taking notice of plain errors
        affecting substantial rights although they were not brought to the attention of the
        court.
            o Plain error  a mitigating doctrine
            o Most often occurs in criminal cases & also involving constitutional rights
            o If obvious from context what the objection was made for
            o Not objected to at trial, but is so prejudicial & egregious as to require
                rectification on appeal  must also affect a substantial right of a party
            o Threshold for plain error appears to be higher in civil than in criminal

In limine motion (“at the threshold”)  before the trial begins
      A motion for an advance ruling on the admissibility of evidence
      Problem  the question of admissibility often turns on the context & timing of
       the presentation of evidence
      If a ruling is made & opposition brings it again  must object again
            o If you get a definitive ruling before trial  need not raise it again
      In limine motions can be made by either party seeking admission or exclusion of
       evidence & are usually (although not always) made before trial

Assume record is preserved, you lose & appeal
    Appellate court standard  Abuse of discretion [for discretionary standards of
     evidence]
    If judge applies wrong elements/factors  error of law & not an abuse of
     discretion
    Must make a difference in the outcome of the case
          o “Harmless Error” Doctrine
                   Implicit in 103(a)  “a substantial right of the party is affected”
                          This means error was not harmless
                   Involves an incorrect ruling (whether admitting excludable
                     evidence or excluding admissible evidence) but does not a
                     substantial right of a party
                   Harmless error won‟t serve as grounds for reversal on appeal

Rule 103(b)  the court may comment for the record on the circumstances surrounding
its ruling
Rule 103(c)  whenever practicable, discussions concerning rulings on evidence should
be conducted outside the hearing of the jury

Similar Occurrences
    May have relevance, but problems of confusion of issues, time-consuming, unfair
       prejudice
    Sometimes they may be sufficiently relevant & have high probative value to
       outweigh confusing issues, time-consumption, etc.
           o Ex. Time factors tend to diminish the probative value (as time passes,
              probative value tends to decrease)

Rule 105 – Limited Admissibility
    When evidence which is admissible as to one party or for one purpose but not
       admissible as to another party or for another purpose is admitted, the court, upon
       request, shall restrict the evidence to its proper scope & instruct the jury
       accordingly
    When evidence is offered for a limited purpose, the evidence should not be
       considered broadly as it relates to any party or issue, but should be considered
       only for the narrow purpose for which the FRE allow its admission
          o Evidence may be admissible for one purpose while simultaneously
              remaining inadmissible for another
      Limiting Instructions  trial judge will educate the jury as to the permissible use
       of the evidence it has heard or seen & thus control the use to which the trier of
       fact will put the admitted evidence
           o Allows judge to instruct jury as to the permissible scope of the evidence
           o Judge has discretion to craft what he/she feels to be an appropriate limiting
               instruction
           o Failure to request a limiting instruction generally means that the proffered
               evidence can be used for any purpose
           o Rule 105 places the burden of requesting a limiting instruction on the
               party who wishes, but nothing prevents the trial judge from providing one
               sua sponte in the absence of a request by a party
           o Although it is preferable to provide the limiting instruction at time
               challenged evidence is admitted, the actual timing is left to trial court‟s
               discretion
      Function of 105 must be considered in light of 403
           o Where evidence would cause unfair prejudice/confusion of the issues,
               such evidence may be excluded under 403
           o Part of a court‟s consideration in deciding whether to exclude evidence
               under 403 should address an evaluation of the effectiveness of a limiting
               instruction under 105 if it were admitted
           o Limiting instructions may not be used in a criminal trial where a
               defendant's constitutional rights would be jeopardized by the admission of
               evidence for a limited purpose

Categorical Exclusions
           o Exclusions as a rule of law
           o For policy reasons, etc.

Rule 407 - Subsequent Remedial Measures
   o 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. 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
Rule 407 does not allow in evidence as :
   o Admission of fault  suggests negligent behavior
   o Existence of a defect or dangerous condition
           o Not allowed in for policy reasons
                     Don‟t want to discourage repairs
                     In the interest of future safety
   o Disallows repairs subsequent to the accident as evidence
           o Can go in to prove ownership (and other 407 exceptions)
                   If defendant is not controverting their ownership  could not
                    admit subsequent repairs
   o Keep exceptions to the exclusions narrow
   o Has low probative value in establishing negligence  subsequent remedial
     actions need not be admissions of culpability
   o When a subsequent remedial action is only minimally probative of an issue other
     than negligence/culpability, trial judge possesses discretion to exclude the
     evidence on basis of unfair prejudice, confusion of issues, or misleading the jury

States may vary
    o CA - Rule 407 not applicable in products liability
    o NY - messy
           o Manufacturing defect - strict liability  subsequent remedial acts are
              admissible
           o Design defect  subsequent remedial acts not admissible (not dealing
              with strict liability)

Rule 408 - Compromises and Offers to Compromise
   o Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or
       offering or promising to accept, a valuable consideration in compromising or
       attempting to compromise a claim which was disputed as to either validity or
       amount, is not admissible to prove liability for or invalidity of the claim or its
       amount. Evidence of conduct or statements made in compromise negotiations is
       like wise not admissible. This rule does not require the exclusion of any evidence
       otherwise discoverable merely because it is presented in the course of
       compromise negotiations. This rule also does not require exclusion when the
       evidence is offered for another purpose, such as proving bias or prejudice of a
       witness, negativing a contention of undue delay, or proving an effort to obstruct a
       criminal investigation or prosecution.
   o Offers to settle do not mean the party is at fault (may simply be for peace)
           o Weak probative value
           o Policy  to promote settlement & avoid litigation (minimize litigation)
                     Want to foster negotiations, otherwise free & open discussion will
                        be chilled
                     May indicate desire for resolution rather than admission of
                        culpability or weakness of position
   o NY legislature adopted 408 (CPLR 4547)
   o Some courts conclude 408 does not apply in criminal proceedings & some take it
       on a case by case basis
   o Exclusionary principle of 408 is inapplicable where a dispute does not exist as to
       liability or the amount of the claim

Rule 403 is still in play for the exceptions to the exclusions

Bias  important in jury‟s weighing credibility of witness
HYPO  A, B, & C are in a car accident
  o A & B sue C, claiming C is at fault
  o B & C discuss settlement & B accepts a $200k as a compromise
  o B testifies for C  A cross exams about the settlement
        o Shows a (potential) bias in the witness
        o Goes towards B‟s credibility, not C‟s liability
  o Exception in Rule 408  proving a bias
  o C‟s lawyer would ask for a limiting instruction

Rule 409 - Payment of Medical & Similar Expenses
   o 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
   o Policy  encourage people to be charitable and benevolent
   o

Rule 411 - Liability Insurance
   o 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
   o Fact that a person was/was not insured against liability is not admissible in order
       to establish negligent or wrongful conduct by the individual
   o Policy  minimize unfair prejudice relating to the consideration of liability
       insurance (low probative value, but risks of prejudice are extremely high
   o Knowledge by the trier of fact of insurance coverage possesses the prejudicial risk
       of inflating damage awards
   o Also includes the non-existence of insurance where such evidence is offered to
       establish negligence or wrongful conduct
   o Exclusionary principle of 411 applies only where liability insurance is offered to
       establish negligence or wrongful conduct - where liability insurance is offered to
       establish other consequential controverted issues, the exclusionary principle of
       411 will not foreclose the admissibility of the evidence
Character Evidence
          If a fact in issue is a party‟s conduct  character as circumstantial
             evidence
          “conduct in conformity with character”
          Character  a person‟s propensity
                  Is the character going to manifest itself in a certain situation?
                  Is it admissible in a court?
          Is it admissible as circumstantial evidence to proof conduct?
                  General rule  not admissible, except by a criminal defendant

People v. Zackowitz (NY 1930)
            Defendant killed V  not in dispute
            Intent is at issue  did defendant act with intent (malice aforethought) or
              heat of passion?
            Evidence that defendant had other weapons in his home (he did not use
              any of them) was admitted
                  Arguably relevant  more likely defendant intended to kill with
                      intent
                  Not Admissible  danger: the jury will take evidence of his
                      general character and use this
                  Reversible error
            Character evidence used circumstantially to show character in conformity
              with conduct  presents a serious risk of jury confusion, misuse, &/or
              unfairly prejudicial
            “The principle back of the exclusion is one, not of logic, but of policy
                  “natural & inevitable tendency of the tribunal . . . is to give
                      excessive weight to the vicious record of crime thus exhibited, &
                      either to allow it to bear too strongly on the present charge, or to
                      take the proof of it as justifying a condemnation irrespective of
                      guilt of the present charge”

Rule 404(a) Character Evidence generally
           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) Character of accused . . .
                  (2) Character of alleged victim . . .
                  (3) Character of witness . . .
           404(a)(1) exception  character of accused
          o Evidence of a pertinent trait of character offered by an accused, or by the
             prosecution to rebut the same, or, if evidence of a trait of character of the
             alleged victim of the crime is offered by an accused & admitted under
             404(a)(2), evidence of the same trait of character of the accused offered by
             the prosecution
                  only in criminal case (“accused”), not allowed in a civil action
                   Policy consideration  stakes are high in criminal cases &
                    defendant‟s liberty is at stake [arguable prejudice to prosecution]
             How to introduce character evidence in a criminal defense?
                 Character witnesses
                 Character trait must be relevant to the crime charged
                          Ex. if truthfulness is not implicated in crime  character
                            evidence about accused‟s truthfulness is not admissible/not
                            pertinent

How do we prove character? (if it is admissible)
           Reputation (basically hearsay)
           Opinion
           Specific Acts
Which of these methods are allowed?
           Reputation  universally allowed
                  Rule 405(a)  in all cases in which evidence of character or trait
                    of character of a person is admissible, proof may be made by
                    testimony as to reputation . . .
                  Community  broadly defined
                  No requirement that witness personally knows defendant
                  Exception to hearsay
           Specific Acts  no one allows this into evidence
                  It is arguably more persuasive, but countervailing factors
                                 o Time, confusion, distraction
                                 o Every act  other side can attack/contradict
                  Rule 405(b)  in cases in which character or a trait of character of
                    a person is an essential element of a charge, claim, or defense,
                    proof may also be made of specific instances of that person‟s
                    conduct
           Opinion  admissible under 405(a)
                  Rule 405(a)  in all cases in which evidence of character or trait
                    of character of a person is admissible, proof may be made by
                    testimony . . . in the form of opinion . . .
                  Not allowed at common law (incredibly subjective)
                         NY does not allow opinion evidence (NY only allows
                             reputational evidence)
                  Sometimes a party may not have a reputation, may not be well
                    known in a community
                  Cannot show the basis of the opinion if the basis is based on
                    specific acts

Issue  what can prosecution introduce by rebuttal?
          Prosecution entitled to rebut evidence of good character (if defendant
              brings it in)
          If defendant opens the door during the defense  prosecution can rebut
Michaelson v. US (1948)  (at time, only reputational evidence was allowed)
             Honesty implicated in bribery
             Defendant brought in evidence of his character
             Rebuttal evidence of defendant‟s prior arrests
             Is it permissible to ask character witness about bad acts that defendant
               alleged committed?
             Purpose  to test sufficiency of witness‟ testimony  Credibility
            o Hazard  his own witness‟ credibility can be tested
                    Inference  they really do not know him
                    Arrests affect one‟s reputation
             Prosecution needs a good faith basis for asking the question
             Defendant will want limiting instructions
Can ask about convictions, arrests, the underlying acts on cross exam that reflect badly on
the reputation
             You can ask the question, but if witness says NO  inquiry stops &
               prosecution cannot ask more
             See 405(a)  “on cross exam, inquiry is allowable into relevant specific
               instances of conduct”
                    Says “inquiry”, not proof
Impeachment of character of witness
             Prosecution can rebut the character evidence of the defense (404(a)(1))
             Rebuttal witnesses
             To neutralize the defendant‟s evidence

NY CPL 60.40(2)  unique to NY (no FRE like this)
         If a defendant in a criminal proceeding, through the testimony of a witness
            called by him, offers evidence of his good character, the people may
            independently prove any previous conviction of the defendant for an
            offense the commission of which would tend to negate any character trait
            or quality attributed to the defendant in such witness‟ testimony
         If defendant opens the door, prosecution can introduce convictions of
            crimes that tend to negate any character trait attributed to defendant
         Conviction must implicate the relevant character trait

HYPO  defendant takes the stand (& is the only witness)
         “I did not start the brawl”
         during rebuttal, can prosecution introduce character evidence?
               NO  defendant did not open the door, did not use character, he
                   only talked about the incident
               Defendant‟s credibility as a witness can be impeached

Is the character of a victim relevant in a criminal case?
             Usually not
             Self-defense  conduct of victim becomes relevant  Did victim attack
                defendant first? Was victim the first aggressor?
             Are we going to allow defendant to bring in character evidence of the
              victim? Yes (Rule 404(a)(2))  prosecutors don‟t like this
             Rule 404(a)(2)  Character of alleged victim
                   Evidence of a pertinent trait of character of the alleged victim of
                     the crime offered by an accused, or by the prosecution to rebut the
                     same, or evidence of a character trait of peacefulness of the
                     alleged victim offered by the prosecution in a homicide case to
                     rebut evidence that the alleged victim was the first aggressor
             Prosecution can offer character evidence (of victim‟s peacefulness) in a
              homicide to rebut contention that victim was the first aggressor
             Once evidence is introduced about victim‟s violent character, the
              prosecution can offer evidence rebutting the same or evidence of
              defendant‟s violent (same trait of) character  see 404(a)(1)

HYPO  OJ‟s civil case & he claims self-defense, that Nicole struck first
      Can he introduce character evidence?  NO, 404(a)(2) only applies in
       criminal cases

NY & self-defense
       Does not allow either party to introduce evidence of victim‟s character for
          purposes of showing whether victim was the first aggressor
       Exception  defendant must know about beforehand & it is only used on
          state of mind of defendant (reputation &/or prior acts)

Rape Cases
       Consent issues
       To what extent will we allow evidence of rape victim‟s character to prove
          consent?
              Common law rule  allowed in most evidence
       Rule 412  Sex Offense Cases; Relevance of Alleged Victim‟s Past Sexual
          Behavior or Alleged Sexual Predisposition
       (a) evidence generally inadmissible  the following evidence is not
          admissible in any civil or criminal proceeding involving alleged sexual
          misconduct except as provided in (b) & (c)
              (1) evidence offered to prove that any alleged victim engaged in other
                 sexual behavior
              (2) Evidence offered to prove any alleged victim’s sexual
                 predisposition
       (b) Exceptions
              (1) in a criminal case, the following evidence is admissible, if
                 otherwise admissible under these rules:
                     o (A) evidence of specific instances of sexual behavior by the
                         alleged victim offered to prove that a person other than the
                         accused was the source of the semen, injury or other physical
                         evidence;
                                  [identification case, not consent cases, where defendant
                                   says it was not me]
                       o (B) evidence of specific instances of sexual behavior by the
                           alleged victim with respect to the person accused of the sexual
                           misconduct offered by the accused to prove consent or by the
                           prosecution; and
                                [we consider this more probative  instances between
                                   the defendant & victim allowed to prove consent]
                       o (C) evidence the exclusion of which would violate the
                           constitutional rights of the defendant
                (2) in a civil case, evidence offered to prove the sexual behavior or
                   sexual predisposition of any alleged victim is admissible if it is
                   otherwise admissible under these rules and its probative value
                   substantially outweighs the danger of harm to any victim & of unfair
                   prejudice to any party. Evidence of an alleged victim’s reputation is
                   admissible only if it has been placed into controversy by the alleged
                   victim
          (c) procedure to determine admissibility
                pre-trial hearings on admissibility of evidence in rape cases
          Rule 412 a/k/a “Rape Shield Law”
                disallows evidence of victim‟s reputation, opinions of them or specific
                   acts (subject to exceptions)

Character as an Essential Element of a Cause of Action or Defense
       very rare cases, there are limited circumstances where character will be an
         essential element
              negligent hiring
              negligent entrustment
              defamation
                     o these are usually the only 3 civil causes of action where
                         character is an essential element
       Rule 405(b)  specific instances of conduct
              In cases in which character or a trait of character is an essential
                 element of a charge, claim, or defense, proof may also be made of
                 specific instances of that person’s conduct
              [opinion & reputation are also admissible]
                     o specific acts are allowed in now because it is now worth doing
                         so
       both sides can introduce evidence when character is an essential element
       Criminal
              Homicide  no mention of defendant‟s character in definitions of
                 homicide offenses
              Usually only comes up in the defense of entrapment

Rule 404(b)  other crimes, wrongs, or acts
          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. It may,
           however, be admissible for other purposes, such as proof of motive,
           opportunity, intent, preparation, plan, knowledge, identity, or absence of
           mistake or accident, provided that upon request by the accused, the
           prosecution in a criminal case shall provide reasonable notice in advance of
           trial, or during trial if the court excuses pretrial notice on good cause shown,
           of the general nature of any such evidence it intends to introduce at trial
                KIPPOMIA
                       o Knowledge, Intent, Preparation, Plan, Opportunity, Motive,
                           Identity, Absence of mistake or Accident
                If bad acts show something specific about the crime charge  have
                    higher probative value
                       o Show something more than mere propensity

US v. Beecham (5th Cir. 1978)
        Defendant, substitute mail carrier, charged with possession of item stolen
           from mail  he claims he was going to return it
        Evidence that he was in possession of 2 stolen credit cards at time of arrest
           (was brought in on rebuttal)
                Bears (circumstantially) on state of mind  intent (& shows more
                  than mere propensity)
                Admissible
People v. Molineaux (NY 1901)
        MIMIC  Motive, Intent, Mistake (absence therefore), Identity, Common
           plan/scheme
KIPPOMIA, MIMIC  these are illustrations, not a closed door

Problems 5-17,5-19,5-20

OJ  evidence allowed in of prior assaults of Nicole  allowed in for motive
       He claimed he did not do it  identity is at issue

Huddleston v. US (1988)
       Charged with selling stolen goods & possessing stolen property
       Defendant put intent in issue  he claims he did not know they were stolen
       Issue of proof  How do we know the acts really occurred?
               He was not convicted of them, but if they happened, they become
                 relevant
       SC  proper procedure governed by Rule 104(b)
               Relevancy conditioned on fact  when the relevancy of evidence
                 depends upon the fulfillment of a condition of fact, the court shall
                 admit upon, or subject to, the introduction of evidence sufficient to
                 support a finding of the fulfillment of the condition
                     o Other crimes are relevant if they happened
                     o Judge admits it if there is enough to support a finding
                                Jury finds whether the other crimes occurred
                                Judge does not have to be convinced the other crimes
                                 occurred

Other crimes, acts, or wrongs
        Defendant need not have been convicted of the similar acts
        Judge  if they happened do they show something specific about the crime in
          issue?
        Prosecutor‟s standard of proof with respect to other acts  preponderance of
          the evidence
        [each item of evidence allowed does not have to meet the beyond a reasonable
          doubt standard (need only a preponderance)
        Some states say if you are acquitted, for policy reasons, cannot allow in the
          other acts
        NY  People v. Ventimiglia (1981)
               o The trial court must hold a hearing prior to the introduction of prior
                   uncharged crimes evidence to evaluate the relevance, probative value,
                   & prejudicial effect of the evidence. The burden is on the prosecution
                   to establish a basis for the evidence
               o People v. Robinson (NY 1986)
                        Where prior uncharged crimes are introduced on the issue of
                           identity, the defendant‟s commission of the prior crimes must
                           be proved by clear & convincing evidence
        Preponderance  more likely
        Clear & convincing  very likely

“Doctrine of Chances”  [problem 5-22}
        Absence of mistake or accident (diminished the likelihood)
        What if defendant is being prosecuted for the 1st murder?
               Does not matter if they came before or after

Rules 413, 414, 415  Propensity Evidence
        Congress decided to allow in propensity evidence concerning molestation &
           sexual assault (purpose  to increase convictions for sex offenders, because
           studies show high rate of recidivism)
        Under these rules, has to be similar acts (not reputation or opinion)
        NY has not adopted similar statues yet
        Rule 413  Evidence of Similar Crimes in Sexual Assault Cases
        Rule 414  Evidence of Similar Crimes in Child Molestation Cases
        Rule 415  Evidence of Similar Acts in Civil Cases Concerning Sexual
           Assault or Child Molestation
        How do you prove prior sex crimes?
                Need not be convicted
                Testimony of witness
Habit Evidence
       Admissible to prove conduct on a particular occasion
       More specific (character  tends to be more general)
       Has higher probative value (more reliable)
       ACN  character is a generalized description of one‟s disposition, or of one‟s
          disposition in respect to a general trait, such as honesty, temperance, or
          peacefulness. Habit, in modern usage, both lay & psychological, is more
          specific. It describes one‟s regular response to a repeated specific situation
               Need frequency
       Take it “subject to connection”
               Rule 104(b)  conditional relevance
               Judge  lets it in conditionally (does not make a fact finding)
               Jury  decides whether or not habit exists
       If objecting to a habit  ex. where is the specific stimulus?

Rule 406  Habit; Routine Practice
        Evidence of the habit of a person or of the routine practice of an organization,
          whether corroborated or not & 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.
NY  habit evidence is developing
        Business routine well accepted (was the common law rule)
        Personal habit????  no real cases on point

Real Evidence (tangible) & Authentication
To get an item of real evidence admitted:
        (1) need basic relevance
        (2) authentication
                is this the real McCoy? Has it been sufficiently
                   identified/authenticated?
Procedure:
        has to be tagged as an exhibit for identification? (not in evidence yet)
        to witness:
                do you recognize that?
                What is it?
                How do you know that it is/was the thing in issue?
        Chain of Custody
                May sometimes need multiple witnesses
                Usually if the item is not unique/not recognizable as the specific item
                   in issue
                        [chain of custody need not be perfect]
        Is it in substantially the same condition as it was when the incident occurred?
                If altered, changed, tampered  diminishes it relevance
        1. recognition
        2. in substantially the same condition
                   “laying the foundation”
                         if met  move to put the item into evidence
                         opponent  may object on insufficient foundation
                                voir dire  cross-exam with respect to laying the
                                   foundation
                 if judge finds sufficient foundation  admitted into evidence
                         conditional relevance
                         jury makes the ultimate determination
                 once admitted  then published to jury
          Is that a fair & accurate representation of . . .?
          Demonstrative Evidence/illustrative (of the witness‟ testimony)
                 Not the real thing/representational
                         Must be fair & accurate
                         Must be helpful to the jury
          Chalkboards  bad idea/can be erased
                 Exhibits need to be preserved, in case of appeal
          Photo of accident scene
                 Need a witness who can testify to the scene (familiar with the scene)
                         Usually your client
                 Mark photo for identification
                         Is it a fair & accurate representation?
                 Relevance turns on its purpose
                         That which is represents must be relevant
                 Witness need not be the photographer

HYPO  ATM robbery, there is a surveillance tape
      No witness to testify that the tape depicts what occurred
      Silent Witness Theory
           o If you have photographic process that is reliable
           o Equipment  installed properly & working properly
           o Chain of custody
                   [theory began with X-rays]

Authentication of Writings
       lawyers can stipulate that it is authentic
              o this does not mean that it is necessarily admissible

Rule 901  Requirement of Authentication or Identification
        (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
              o codifies common law principles
              o (b) illustrations – some ways to satisfy requirement
Handwriting (3 ways to authenticate)
        Rule 901(b)(2)  nonexpert opinion on handwriting
              o Nonexpert opinion as to the genuineness of handwriting, based upon
                  familiarity not acquired for purposed of the litigation
                      Witness can testify as to familiarity of one‟s handwriting (need
                         not be expert)
                      “I saw him sign the K”  direct evidence
                               this is sufficient to get it admitted, whether it is
                                  believed is up to the jury
                      nonexpert cannot acquire familiarity for purposes of this
                         litigation
          Exemplar/specimen of handwriting
              o Jury can compare it with the document in evidence
          Expert Comparison

Writing, blood, lineups, physical characteristics  all real evidence
        A criminal defendant can be forced to give these without violating the 5th
           Amend. (which only deals with testimony)
Rule 901(b)(4)  Distinctive Characteristics and the like
        Appearance, contents, substance, internal patterns, or other distinctive
           characteristics, taken in conjunction with circumstances
              o Circumstantial evidence of authentication

Solicited Reply Doctrine
         Send something expecting a reply & that what party got back is circumstantial
           evidence

Rule 901(b)(3)  Comparison by trier or expert witness
        Comparison by the trier or by expert witness with specimens which have been
          authenticated

Rule 901(b)(8)  Ancient documents or data compilation
        Evidence that a document or data compilation, in any form,
              o (A) is in such condition as to create no suspicion concerning its
                 authenticity,
              o (B) was in a place where it, if authentic, would likely be, and
              o (C) has been in existence 20 years or more at the time it is offered

These only go towards authenticity  there are still hearsay issues that must be satisfied

Rule 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
Rule 901(b)(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
               o (A) in the case of a person, circumstances, including self-
                 identification, show the person answering to be the one called, or
               o (B) in the case of business, the call was made to a place of business
                 and the conversation related to business reasonably transacted over
                 the telephone
                      under (A) calls to the number, getting calls from someone not
                         sufficient under 901(b)(6)

HYPO  A tort action v. B (A alleges B knocked him down in store)
      Problem  A did not see who did it
      Only evidence that it was B  A heard a voice
           o A hears the voice later that day  sufficient under 901(b)(5)  jury
                may still believe
           o A could theoretically use B‟s testimony as the comparison for voice
                identification

Rule 901(b)(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 where items of
          this nature are kept
              o Includes private records filed in public
              o Ex. deeds, marriage licenses, tax records, etc.
              o Having a document like a deed filed  sufficient evidence of your
                  signature

Rule 902  Self-Authentication
        Require no foundation evidence
        Document speaks for itself
        Prima facie genuine (can be rebutted)
Rule 902 (1)  Domestic Public Documents under Seal
        Not likely that they are forged
        Likelihood of falsifying low  often have criminal penalties if forged
Rule 902(2)  Domestic public documents not under Seal
        If official does not have seal, official with seal must certify the signature of
           the party without a seal
Rule 902(8)  Acknowledged documents
        Notary public certifies that author acknowledged/Acknowledgment
Rule 902(4)  Certified copies of public records
        Copies of public records must be certified
Rule 902(5)  Official Publications
        Books, pamphlets, or other publications purporting to be issued by public
           authority
Rule 902(6)  Newspapers & periodicals
        Printed materials purporting to be newspapers or periodicals
Rule 902(7)  Trade Inscriptions & the like
        Inscriptions, signs, tags, or labels purporting to have been affixed in the
          course of business & indicating ownership, control, or origin
Rule 902(9)  Commercial Paper & Related documents
        Promissory notes

Competency of Witnesses
      Means witness has necessary/sufficient testimonial qualifications
      Sufficient powers of perception, memory & communication
      Has to know difference between truth & falsity and willingness to testify to
        the truth

Rule 601  General Rule of Competency
    Every person is competent to be a witness except as otherwise provided in these
       rules. However, in civil actions & 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
           o Presumes competence (until it is shown to the contrary)
           o Judge has a lot of discretion
           o Rule 601  does not set any age limits
                   For child, may need to use a line of questioning (like p.159) to
                      establish whether they can distinguish between truth & lying
                           If judge is persuaded  allow it in
                           Under 603  even children must take an oath or
                              affirmation

Rule 603  Oath of Affirmation
    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 & impress the witness’ mind with a duty to do so
    Either form (oath or affirmation) is acceptable

NY CPL 60.20  testimony by children in criminal proceeding
   [in civil, all child must be sworn]
   a child under 9 may testify without oath or affirmation (unsworn testimony), but
     this cannot be the sole basis for conviction (there must be corroborating evidence)
   creates a presumption that any one under 9 is incapable of giving an oath or
     affirmation  must be affirmatively demonstrated
         o judge conducts voir dire of child witness
   if child is under 9 & can give an oath/affirmation  do not need corroboration

Competency
   being intoxicated affects your credibility, can still testify
   hating the defendant affects credibility, can still testify
   done on a case-by-case, witness-by-witness basis
   Testimony under Hypnosis  not allowed
      Helped to recall the facts thru hypnosis
          o Issue  when one‟s memory is recalled solely by hypnosis
          o Problem: leading questions under hypnosis
                   Confabulation  the witness will fill in the gaps (make up facts)
          o Videotaped session with qualified hypnotist
                   Some states allow witnesses to testify on memories jarred from
                      hypnosis (refreshed memories)  ex. NJ
                           Need procedural safeguards
          o NY  restoring memory thru hypnosis is inherently unreliable
                   Had law like Arkansas (per se impermissible)
                   Will allow things he remembered prior to hypnosis

Rock v. Arkansas (1987)
    Defendant killed husband, but claimed it was an accident
    Problem: she did not remember where her finger was
           o Goes under hypnosis  remembers where her finger was
    She wants to testify on her own behalf
           o Objection: hypnosis refreshed testimony  per se impermissible
    SC  Constitutional Issues
           o Due process  criminal defendants can testify on their own behalf
           o VI Amend.  can call witness on her own behalf (compulsory process)
                   Trial judge must handle it on a case-by-case basis
                   Cannot have a per se restriction
                   Remanded to trial court
    Rock v. Arkansas  does not apply to prosecution witnesses (only applies to
       criminal defendants)
           o What if criminal defendant‟s witness underwent hypnosis?
                   Has not been a case on it  not decided in Rock
Most federal court tend to follow NJ  case-by-case analysis

Dead Man’s Statute
    At common law, anyone with an interest in the proceeding could not testify
      (incompetent)
    Today  not the case (fact that party is interested affects their credibility)
    If you have interest & are testifying against decedent‟s estate  not allowed
      under Dead Man‟s Statute
          o Adversarial equality (dead person cannot affirm/refute the other side‟s
             testimony)
          o Such testimony is considered rife with potential for perjury because it can
             be given without fear of contradiction by the other party
    CPLR 4519 consists of essentially 3 elements
          o 1. any person “interested in the event,” or a predecessor in interest of such
             person, may not testify in his/her own behalf or that of a successor in
             interest against
           o 2. certain protected person with a specified relationship to a decedent or
               mentally ill person
           o 3. concerning a transaction/communication with the decedent or mentally
               ill person
      1. who is disqualified?
           o 1. party interested in the event
           o 2. person interested in the event (this has to do with res judicata)
                     direct legal stake in the outcome  to be interest in the event  is
                        to have such an interest that the witness will either gain or lose by
                        the direct legal operation & effect of the judgment or, the record
                        will be legal evidence for or against him in some other action.
                     It must be a present, certain, & vested interest, it cannot be
                        uncertain, remote or contingent
                     Need not be a party the action to be interested in the event
           o 3. person from, thru, or under whom party/person interested in the event
               got their interest
      merely being a relative does not disqualify one from testifying (standing alone)
      have to look at the person‟s status & the nature of the testimony
      Beneficiary  incompetent
      Beneficiary can, however, renounce their bequest & therefore, no longer
       interested in transaction  would then be competent
      Statute only applies to testimony
           o Not violating dead man‟s statute by proving your side with documentary
               evidence
      Statute  only applies to certain witnesses
           o Document & other (non-interested) witnesses allowed

Common use of dead man‟s statue  Probate disputes
     Beneficiaries are usually incompetent to testify in support of the will to
         transactions/communications with the decedent
     Conversely, statutory distributes are incompetent to testify to their dealing with
         the decedent for purposes of defeating the will
     Executors not disqualified from testifying to a transaction with the decedent in
         support of the will unless they are also beneficiaries
Another person interested in the event is a shareholder of any non-banking corp. who
seeks to testify on behalf of corp. to a transaction/communication with a decedent whose
estate is suing or being sued by the corp.
     Officers, directors & employees of corp. are not incompetent to testify unless they
         also happen to be shareholders

Time Frame for the disqualifying interest
    To be disqualified, the witness‟ interest in the event must exist at the time the
      testimony is offered into evidence
    A potential witness‟ divestiture of his/her interest prior to testifying generally will
      restore the witness‟ competency
            o On the other hand, incompetency will persist if the witness, after having
                divested the interest, is a person “from, through or under whom” some
                other interested person derives his/her interest
            o Just as divesting one‟s interest prior to testifying may serve to qualify a
                previously incompetent witness, acquiring the interest after the transaction
                in question may serve to invoke the incompetency
Self-Defeating Testimony
     Statute only applies when the potentially disqualified witness is testifying in his
       own behalf or that of his successor in interest
     Testimony that is injurious to the witness‟ interest or that of the successor,
       therefore, will be permitted
     Also, if a potentially disqualified witness is called by a party with an adverse
       interest, the witness is not testifying in his own behalf
Protected persons
     An interest witness under 4519 will not be disqualified from testifying unless
       his/her testimony about a transaction/communication with a decedent/mentally ill
       person is offered against someone with standing to invoke the statute
            o 1. executor/administrator of a decedent‟s estate [who may invoke the
                statute regardless of whether the fiduciary is defending a claim against
                estate or prosecuting a claim on behalf of the estate] or the committee of
                the mentally ill person
            o 2. a “survivor” of the decedent
                     this does not mean a relative who outlives the decedent
                     the surviving member of a partnership or joint venture where the
                        decedent was a member/also surviving debtor of a joint debt
            o 3. person deriving his/her title or interest from, through or under the
                decedent/mentally ill person
                     limit on from, thru or under  in disputes concerning life
                        insurance proceeds, the beneficiaries named in the policy do not
                        derive their title from the decedent & therefore lack standing to
                        invoke 4519 against adverse claimants (since decedent himself
                        doesn‟t own the proceeds during his life, nothing passed thru him)
Exceptions
     1. stockholders of a banking corp.
     2. potential for the award of imposition of costs is not a disqualifying interest
     3. interested witnesses may testify against representatives of a decedent/mentally
       ill person with respect to “the facts of an accident” involving negligence arising
       out of the operation or ownership of a car, aircraft or vessel in NY
     witness is entitled to introduce his own prior testimony given at a former trial
       which involved the same subject matter & the same parties or their representatives
            o limited  deposition not qualified  not a “trial”

Waiver
   when one who has standing to object & fails to do so
   Protected party testifies on his behalf concerning the particular
       transaction/communication with the decedent/mentally ill person
           o Only triggered when (1) the protected party testifies and (2) his/her
               testimony concerns a transaction/communication with the decedent
           o Testimony elicited from the protected party by an adversary does not open
               the door
                    Cross-exam  not being examined in your own behalf
                    Does not act as a waiver if the info comes out in cross-examination
      Testimony about the transaction/communication by the decedent/mentally ill
       person given on a prior occasion is introduced into evidence at trial
      Protected party examines the disqualified witness concerning the
       transaction/communication
           o Once part of the transaction has been elicited, the witness must be
               permitted to testify to the whole of the transaction

When does Dead Man‟s Statute apply?
    Only in civil trials, does not apply in criminal cases
    Does not apply in pre-trial discovery
    Party asserting its protection has the burden of proving its applicability
There is no federal dead man‟s statute
    Exception  in federal court for diversity & state law supplies the rule of
       decision, have to use state law regarding competency (last sentence Rule 601)
           o So if in diversity in NY for common-law fraud, dead man statute applies
    May also be applicable in supplemental jurisdiction
           o Could lead to separate trials & separate juries

Generally  when if Federal Court use the FRE
    Three Exceptions
          o 1. 601  when state substantive law  use state laws of competency
          o 2. privileged communications  Rule 501
          o 3. Rule 301  presumptions

Form of Examining Witnesses
    Question & Answer Format
    Narrative
         o Both are allowed
         o Comes down to the lawyer‟s or judge‟s discretion
    Rule 611(a)  Control by Court
         o The Court shall exercise reasonable control over the mode & order of
            interrogating witnesses & presenting evidence so as to
                 (1) make the interrogation & presentation effective for the
                   ascertainment of truth,
                 (2) avoid needles consumption of time, and
                 (3) protect witnesses from harassment or undue embarrassment


Leading Questions  suggests the answer
    not allowed in direct examination
      have to rephrase the question (in neutral terms)
      allowed on cross exam
           o tests the truth of what the witness says
           o less likely for the witness to be lead on cross
      can lead “hostile” witness on direct exam
      can lead to jog one‟s memory
      can lead adverse witness
      can lead children, elderly, mentally ill
      can lead at outset to set the stage
      Rule 611(c)  Leading Questions
           o Leading questions should not be used on the direct examination of a
              witness except as may be necessary to develop the witness’ testimony.
              Ordinarily leading questions should be permitted on cross-examination.
              When a party calls a hostile witness, an adverse party, or a witness
              identified with an adverse party, interrogation may be by leading
              questions

Objections
    “Asked & answered”  repetitious
    “Compound question”
    “assuming facts not in evidence”
           o the last 2 apply to both direct & cross
           o object & rephrase
    Irrelevant

To refresh his recollection & he would then testify
            Must read it silently & cannot read it to jury (hearsay)
                   o Can rely on the notes
            Notes are laid aside, do not come into evidence, the evidence is the
                witness‟ current memory
            Do not have to authenticate  not coming into evidence
            Risk  adversary has right to see it & use it on cross-exam
            Can use just about anything to jog one‟s memory

See § 612.5  Product of the Writing used to Refresh Recollection

Pre-trial refreshing  used documents, can other side see this?
     612(2)  before testifying, if the court in its discretion determines it is necessary
        in the interests of justice
             o there are issues of waste of time, attorney-client privilege, access issues
             o no right of other side to see the documents
     Jencks Act  concerns criminal cases
             o Defendant has a right to see statements made by prosecution witness
                     Regardless of whether they were used to refresh/recollect
                     Works both ways, prosecution can see prior statements given by
                        defendant‟s witness
                 Also overrides attorney-work product
      NY Rosario material  same rule in criminal cases as Jencks

Rule 803(5)  Recorded Recollections
     Not hearsay, even though declarant is available as witness
     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 & accurately, shown to have been made or adopted by the witness when the
       matter was fresh in the witness’ memory & 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
           o When you want to use 803(5) as exception, must establish a sufficient
                foundation
           o It can be read into evidence, but only the adverse party can use it as
                exhibit
                     Substitute for witness‟ testimony
                            [juries cannot look at transcript of testimony]
                            [NY allows jury to look at document]
     Reasons for the exception
           o May even be more accurate than witness‟ testimony
           o Witness can verify it (under oath)
           o Can be cross-examined right now (at trial)
     Federal courts tend to be more liberal  has allowed the recorded document to
       be up to 1 month later
           o NY  in case law has not gone beyond 1-2 days
     “made or adopted by the witness”  witness need not have written down the
       information himself, if he has adopted it
           o jointly prepared past recollection recorded

Cross-Examination
    Testing what the witness said/balances the record
    May affect a witness‟ credibility in the eyes of the jury
    Have a common-law right to cross-exam
    If criminal defendant  have a Constitutional right to cross-exam
         o VI Amend.  “confront witnesses against you”
    Rule 611(b)  Scope of cross-examination
         o Cross-examination should be limited to the subject matter of the direct
             examination & matters affecting the credibility of the witness. The court
             may, in the exercise of its discretion, permit inquiry into additional
             matters as if on direct examination
                  Cross-exam limited to subject matter of direct exam & matters
                     affecting credibility
                  Do not want other side to prove its case through cross-exam
                  Last sentence  gives judges some discretion/wiggle room
                  [some states, not NY  use the “wide open” rule of cross-exam]
                  matters affecting credibility of witness
                             ex. matters of impeachment can be brought up on cross,
                              even if they go beyond the scope of the direct

Impeachment
    any witness that testifies
        o 1. Honesty  Are they being truthful?
        o 2. Memory  How good is their recollection?
        o 3. Perception  How well did they perceive?
    Impeachment  calls into doubt one of these three (by contradiction)
        o Thru intrinsic evidence  witness contradicts self
        o Thru extrinsic evidence  another witness or document that raises doubt
            about target witness‟ credibility

Problem 7-5
Examples of Impeachment Devices
    Prior inconsistent statements of the witness (self-contradiction)
    Impeachment by conviction of the witness
    Impeachment by prior bad acts
          o Rule 404(a)(3) allows in character evidence of witness

Collateral Matter of Credibility
    Too much distraction to bring in extrinsic evidence
    Collateral contradiction  can ask on cross, but cannot prove extrinsically
    [non-collateral matter  is a fact in issue, this is what case is all about; important
       to the case/substance of the case]

Bias  any factor that gives motive to testify for/against a particular party
    example  in criminal cases, bias of prosecution witness has to do with cutting a
      deal with prosecution in exchange for testimony
    bias  a non-collateral form of impeachment
          o if witness denies source of bias, you can prove it thru extrinsic evidence
          o when it comes to bias  can bring in extrinsic evidence
          o probative value of bias outweighs the prejudice to defendant
    NY allows for sneak attack, need not confront
          o Federal courts divided  courts discretion
                   If it was something he said (as basis for bias)  confront the
                      witness
                   If it is just a fact  just go ahead & prove it

US v. Abel (1984)
    Extrinsic evidence testimony revealing witness‟ membership in organization
       having tent to “commit perjury” admitted to show bias

Sensory Impairment
    Non-collateral  can establish an impairment by extrinsic evidence
      Merely being addicted  too general, too broad
          o As an inference of destruction of brain cells  may be allowed
   
p.131  example  stop questioning here, do not give witness chance to rehabilitate
themselves
problem 7-14

Prior Inconsistent Statements by Witness
     self-contradiction
     does this violate hearsay? [see example p.142]
           o Depends on purpose & identity of person on stand
           o If not used to prove a fact in issue  not hearsay
           o Can be used to create the inference that someone is not worthy of belief
     To impeach credibility  not hearsay  fact of an inconsistency
     Omitting details on one occasion & describing them on later occasion 
        permissible inconsistency

Rule 613(b) Extrinsic Evidence of prior inconsistent statement of witness
    Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
       unless the witness is afforded an opportunity to explain or deny the same & the
       opposite party is afforded an opportunity to interrogate the witness thereon, or
       the interests of justice otherwise require. This provision does not apply to
       admissions of a party-opponents defined in Rule 802(d)(2)
    Does not require confrontation, provided witness is given chance to explain/deny
           o Witness may have to be recalled
    Changed the common law which required confrontation
           o NY still requires confrontation
           o Rationale  if they admit it, no need to introduce extrinsic evidence
    Federal judges have a lot of discretion here & often will make the attorneys
       confront the witness

Rule 801(d)(1)(A)
     A statement is not hearsay if . . . the declarant testifies at the trial or hearing and
       is subject to cross-examination concerning the statement, and the statement is
       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
     If a prior inconsistent meets this rule, it can be used for both impeachment & for
       the truth of the matter asserted
     Sometimes can be allowed in to prove the truth of the statement
           o Must be given on prior occasion, under oath, at trial/hearing/some other
               proceeding/deposition
     NY does not follow this, can only be used to impeach, can‟t be introduced for the
       truth of the matter asserted

What if the prior inconsistent was made by a party?
   Can be used to impeach testimony
      Can be used to help prove your case  A party admission (even though not under
       oath)
           o Exception to hearsay
      Any prior statement of party can come in to show the truth of the matter
      No requirement of confronting the adverse party
           o Can use the prior party admission even if the party doesn‟t testify
      The opportunity for explanation requirement of 613(b) does not apply to out-of-
       court statements of a party-opponent admissible as substantive evidence under
       801(d)(2)

Bad Character for Truth & Veracity of Witness
    1. Bad reputation/opinion
    2. convictions
    3. bad acts
    Rule 404(a)(3)  character for impeaching a witness
         o Can be any witness
         o Reputation & opinion [NY limits it to reputation]

Rule 608 Evidence of Character and Conduct of Witness
    (a) Opinion & reputation evidence of character
          o 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
    (b) Specific Instances of Conduct
          o specific instances of the conduct of a witness, for the purpose of attacking
              or supporting the witness’ credibility, other than a conviction of crime as
              provided in Rule 609, may not be proved by extrinsic evidence. 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.
          o The giving of testimony, whether by an accused or by any other witness,
              does not operate as a waiver of the accused’s or the witness privilege
              against self-incrimination when examined with respect to matters which
              relate only to credibility
    Any witness includes criminal defendant who chooses to take the stand
          o Limiting instructions
    Cannot impeach a witness‟ credibility until they actually testify
    General common law rule  could use any type of conviction to impeach
           o States vary concerning allowing in convictions to impeach credibility

Rule 609  Impeachment by Evidence of Conviction of Crime
    (a) General rule  for the purposes of attacking the credibility of a witness
          o (1) evidence that a witness other than an accused has been convicted of a
              crime shall be admitted, subject to Rule 403, if the crime was punishable
              by death or imprisonment in excess of one year under the law under which
              the witness was convicted, & evidence that an accused has been convicted
              of such a crime shall be admitted if the court determines that the probative
              value of admitting this evidence outweighs its prejudicial effect to the
              accused; and
          o (2) evidence that any witness has been convicted of a crime shall be
              admitted if it involved dishonesty or false statement, regardless of the
              punishment
    court has some discretion to exclude if Rule 403 says so
          o presumption is in favor of admissibility
    felonies  subject to a balancing of probative value v. prejudicial effect
          o higher threshold when witness is the accused (criminal effect)
    test under (a)(1)  do not look at the actual sentence, but what was punishable
       (what the offender could have received)
    what if witness is the accused – the criminal defendant?
          o Probative value must outweigh the prejudicial effect
          o Dangers
                   Priors might be used impermissibly by jury as propensity evidence
                   Do not want to deter defendants from taking the stand
          o Factors court should consider in balancing
                   Length of time since the conviction or release from prison
                      (independent from the 10 year limit under 609(b))
                   May depend on importance of assessing the credibility of the
                      accused as a witness (can cut both ways)
                   Type of crime
                   Is the prior conviction & current charge similar  greater risk jury
                      will ignore limiting instructions & use it as propensity
                           May allow in fact of a conviction, but not the type of crime
                   Number of prior convictions (court may not allow in all of them
          o These decisions should be made before trial (in limine motions)
    609(a)(2)  crimes involving dishonesty
          o says nothing about 403 balancing or any balancing test
                   no balancing of probative value
          o admissibility is automatic if within the 10 year limit of 609(b)
          o can be a misdemeanor or felony
          o includes the criminal defendant as witness
          o ex. perjury, fraud, bribery, embezzlement
          o is statutorily interpreted narrowly
          o Some courts will take burglary & theft & look at the M.O.  to see how
              they obtained access (to determine if it is a crime involving dishonesty
Rule 609(b)  Time Limit
    Evidence of a conviction under this rule is not admissible if a period of more than
       10 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, unless the court determines, in the interests of justice, that the probative
       value of the conviction supported by specific facts & circumstances substantially
       outweighs its prejudicial effect. . .
           o 10 year time frame
           o if convicted 15 years ago & released from prison 9 years ago  can still
               use the conviction
           o can still use older convictions if there is advance notice & in court‟s
               discretion

Cree v. Hatcher (3d Cir. 1992)
    willful failure to file federal tax return held not to be a crime of dishonesty or
       false statement (does not necessarily involve the making of a false statement)

Rule 609(d)  Juvenile Adjudications
    evidence of juvenile adjudications is generally not admissible under this rule.
       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 & the court is satisfied that
       admission in evidence is necessary for a fair determination of the issue of guilt or
       innocence
           o juvenile adjudications  go by the local law
           o Davis v. Alaska (1974)  right of confrontation is paramount to the
              state‟s policy of protecting a juvenile offender especially where juvenile
              adjudication is relevant as evidence of bias & motive to lie, & not as a
              general attack on the character of the witness
                   Prosecution witness was juvenile offender out on parole &
                      evidence was allowed in to show bias

NY law  any witness who takes the stand is subject to impeachment by conviction
(misdemeanors or felony)
    NY  open season on any witness, except the criminal defendant
    No balancing test as a general rule
         o Exception: People v. Sandoval
                  Criminal defendant is allowed to make a motion (pretrial ruling)
                     which of his priors prosecution intends to introduce as
                     impeachment
                  Criminal defendant entitled to a balancing test
                  Sandoval ruling  also includes bad acts without convictions

Cannot bring out witness‟ or defendant‟s convictions until they actually testify
People v. Hayes (NY 2002)
    Rape case where defendant argued consent
    Defendants priors included sexual assault, aggravated sexual assault, assault,
       battery
           o 4 of defendants priors were allowed in
           o Defendant decided not to testify, was convicted (was upheld)
    Trial court did not abuse discretion in allowing in priors
           o It was a he said, she said case  credibility is critical

If witness was not convicted of anything
Rule 608(b)  Specific Instances of Conduct
     Specific instances of the conduct of a witness, for the purpose of attacking or
        supporting the witness’ credibility, other than a conviction as provided in Rule
        609, may not be proved by extrinsic evidence. They may, however, in the
        discretion of the court, if probative of truthfulness or untruthfulness, be inquired
        into on cross-examination of the witness
            o (1) concerning the witness’ character for truthfulness or untruthfulness, or
            o (2) concerning the character for truthfulness or untruthfulness of another
                witness as to which character the witness being cross-examined has
                testified
     bad acts without convictions
            o under (b)(1), acts of violence do not fall under this
            o no time limit per se under 608(b), but could fall under court‟s discretion
            o some states (including NY) allow in any acts of immorality, viciousness or
                criminality
     Can make inquiry, but if witness denies, you cannot use extrinsic evidence to
        prove the act happened
            o Stuck with the witness‟ answer
            o Considered collateral
            o Can subtly use a document to refresh his memory
            o Can press the witness a little bit
     Courts have discretion
     Cross-examiner needs a good faith basis that the acts occurred
            o Can be challenged outside the presence of the jury
     Arrest  not a bad act, just an accusation of a bad act
            o Could ask about the act underlying the arrest  the bad act itself
                     Cannot mention the arrest, indictment, civil judgment, etc.
     HYPO  Defendant is accused of drug trafficking
            o Prosecution witness
                     Can you ask him: were you arrested for pot possession two months
                         ago & are now awaiting trial? YES  can show bias
                             He may be trying to cut a deal
                             If he denies this  can use extrinsic evidence to prove bias
     Rule 609(a) does not authorize the use of arrests or indictments
            o However, Rule does not preclude use of a pending indictment against a
                witness for an impeachment purpose other than that regulated by 609.
           o A pending indictment or arrest may be probative in showing bias,
             prejudice, interest, or coercion
           o Under 609, a guilty plea or nolo contendere resulting in a judgment of
             conviction may be used for impeachment

Can you impeach your own witness?
    Not under common law – Voucher Rule  you are vouching for your witness
    Can still prove your case, even if it indirectly impeaches your witness
          o Not bound by your own witness‟ testimony
          o Can contradict your own witness
    Modern justification against impeaching your own witness  fairness

NY  still uses the Voucher Rule (general rule)
     Exceptions in NY
            o CPL 60.35 & CPLR 4514
                      Can impeach your own witness by prior inconsistent statements
                      Written & signed statement or oral statement given under oath
                      Reasons  witness thought about statement, case-specific, not
                        attack on character, relatively easy to prove
            o Testimony at trial affirmatively harms your case ??????
Federal Rule on Impeaching your own Witness
     Rule 607  Who May Impeach
            o The credibility of a witness may be attacked by any party, including the
                party calling the witness
     Rationale  fact that party calls a witness does not mean that the party has
        exercised complete freedom in selecting the witness to testify
     When a court is asked to disallow a party‟s impeachment of a witness under 403,
        the court will consider the reliability & relevancy of the offered evidence & to
        some degree the motivation of the party in impeaching his witness
            o Relevancy should be assessed in 2 ways
                      1. extent to which the evidence is probative of witness‟ credibility
                      2. probity of evidence if used prejudicially as substantive evidence
                      effectiveness of limiting instructions
     Whether the party wishing to impeach his witness was surprised or damaged by
        the direct testimony may be considered in a Rule 403 balancing analysis

Rehabilitation
    If character has not yet been attacked, must take a “wait & see” approach
          o Can bolster up a little bit
          o “taking out the sting” of other side‟s cross-exam

Ohler v. US (2000)
    waived the ability to appeal on the issue of error that the conviction was allowed
    in limine  prosecution allowed to bring in evidence of prior conviction (to
       impeach defendant)
          o does not mean that prosecutor will actually use or introduce the prior
              conviction
    defendant brought out the felony on direct (anticipating the prosecution was going
      to introduce it)  “taking out the sting”
    Convicted & defendant appeals  claims judge erred by allowing the conviction
      in the pre-trial motion
    SC  witness testified as to the conviction on direct & therefore, waived her right
      to appeal
          o General Rule  Party introducing evidence cannot complain on appeal
              that the evidence was admitted erroneously
          o Takes away the prosecutor‟s prerogative (he may not use it)
          o Rehnquist  we do not want to allow defendant‟s to build in an automatic
              ground for appeal
Reasons for not using a conviction that was allowed in limine
    1. it might not be needed
    2. do not want to risk a reversal on appeal

Rehabilitation Techniques
    1. if damaging facts comes out during cross-exam
           o explain the circumstances/mitigating factors on redirect
           o explain the impeaching testimony on redirect
    2. coming out with a character witness to rebut the character evidence that
       attacked the witness‟ character
           o Rule 608(a)(2)  the credibility of a witness may be . . . supported by
               evidence in the form of opinion or reputation, but subject to these
               limitations: 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
           o Can do the same in NY, but only through reputation
           o Truthfulness must be subject of impeachment
    3. prior consistent statements [this is the toughest rehab technique]
           o not allowed as general matter because:
                    1. hearsay
                    2. not very relevant (multiple statements of a lie do not increase its
                        truthfulness)
           o cross-exam suggests recent fabrication for trial  improper
               motive/influence, but he said the same thing before the motive/influence
               existed
                    any cross that suggests improper influence/motive may be (on
                        redirect) rehabilitated by showing prior consistent statement before
                        the motive/influence
           o Rule 801(d)(1)(B)  A statement is not hearsay if the declarant testifies
               at the trial or hearing & is subject to cross-examination concerning the
               statement, & the statement is . . . consistent with the declarant’s testimony
               & is offered to rebut an express or implied charge against the declarant of
               recent fabrication or improper influence or motive
                      Only on redirect
                      Timing is everything

There is a difference between lying & being mistaken
    Being mistaken not an attack on witness‟ character for truthfulness

Hearsay

Rule 801
   (a) Statement  a “statement” is (1) an oral or written assertion or (2) non-verbal
        conduct of a person, if it is intended by the person as an assertion
   (b) Declarant  A “declarant” is a person who makes a statement
   (c) Hearsay  “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
Requirements to be excluded as hearsay (801(c))
             Must be out-of-court
             Must be a statement
             Made by a declarant
             Offered for the truth of the matter asserted
Declarant  person who makes the out-of-court statement
Witness  person on stand testifying
         These two roles can overlap sometimes
Inability to cross-exam makes hearsay unreliable

Unless all the elements of hearsay definition as satisfied, the evidence will not be
considered hearsay
        Out of court statement  is made outside of this court proceeding
        Statement  oral or written assertion or non-verbal conduct intended by
            declarant to be a communication to others (i.e., assertive)
                 The key to understanding assertion is that they are intentional or
                   purposeful
        Declarant  source of the out-of-court statement
                 Declarant must be a human being
        Offered for the truth of the matter asserted  if it is offered to show its factual
            content is true
                 Statements not offered for the truth of the matter asserted are relevant
                   simply because they have been said, without regard to whether they
                   are true
                 Statements not offered for the truth of the matter asserted include:
                         State of mind
                         Impeachment
                         Res gestae
                         Operative
                            facts
                         Verbal acts
Ways to overcome a hearsay objection:
       Not hearsay  does not come under the hearsay definition (801(c))
       Find an exception
              Evidence that is labeled “not hearsay”  Rule 801(d)
              Evidence that is labeled “hearsay exception”  Rules 803, 804
Relevance Question  what purpose is the [out of court] statement being introduced for?
       Assertion of Fact A is the statement
              If used to try & prove Fact A  it is hearsay
              If used to try & prove Fact B  not hearsay (not trying to prove the
                 fact of the matter asserted, but another Fact
                      Circumstantial evidence

Rule 802  Hearsay Rule
        Hearsay is not admissible except as provided by these rules or by other rules
          prescribed by the Supreme Court pursuant to statutory authority or by Act of
          Congress
        Hearsay is excluded from evidence, primarily because it is deemed not
          trustworthy
               Trier of fact is deemed to be unable to properly evaluate & weigh
                 hearsay evidence

Affidavits  still hearsay (no cross-exam when affidavit is signed)

Verbal Acts
    Words relevant without regards to their truth
    They have independent legal consequences
          o Ex. K law  words of acceptance (does not if the words are true or not,
            just that they were spoken)
          o Ex. slander  the words of slander are not used to prove their truth, are
            actually trying to prove the opposite of what was said
                 The mere fact that they were spoken
          o Ex. fraud/false representation
                 Legal obligations are attached to false words
          o Ex. Verbal part of an act
    Without regards to the credibility

Circumstantial Evidence of Listener‟s State of Mind
     Don‟t care whether speaker was being honest, had credible perception
     Just because the statements were made/relevant just because they were made

Circumstantial Evidence of the Speaker‟s (Declarant‟s) State of Mind

Conduct as Hearsay
       Purposeful assertion of fact
       Conduct intended as an assertion of fact
Implied Assertion

Rule 801(a)
        If it is non-verbal conduct not intended as an assertion  not hearsay
        Non-assertive conduct  not hearsay
        Tatham  the actor didn‟t intend to make an assertion by his conduct, &
          therefore the hearsay risk of insincerity is minimized
              o Really drawing inferences from non-assertive conduct
              o Can come in a circumstantial evidence
        Test  Was the conduct intended as an assertion of fact?
              o If yes  it is hearsay

People v. Salco (NY)  act which is not intended to serve as an assertion is not hearsay
Some states still treat implied assertions of conduct as hearsay

Machines & dogs  cannot be hearsay
       Must be a person in order to be hearsay
       With machines & dogs, may still have accuracy issues & may need expert
         witnesses

Witness & Declarant are one & the same  can still be hearsay
       No cross-exam when the statement was made

Prior Consistent Statement
        A lie is a lie no matter how many times you say it

Problems 10-18,19

US v. Day (6th Cir. 1986)
        Defendant convicted of preparing false income tax returns
        Government introduced at trial a prior sworn recorded statement made by
          defendant from an interview with government agents
              o Not sure if agent had legal authority to administer an oath that would
                  invoke a penalty of perjury
        Interrogation  not a deposition
              o Not what 801(d)(1)(A) means by a proceeding

Rule 801(d)(1)(B)  A statement is not hearsay if – declarant testifies at the trial or
hearing & is subject to cross-exam concerning the statement, & the statement is (B)
consistent with the declarant’s testimony & is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive
         Prior consistent statement  must be before there was a motive to lie
               o A recent charge of fabrication, improper influence
         Applies on re-direct only
               o Comes in to prove the truth of the matter asserted
         No requirement of oath or at a proceeding
              o Can be made under any circumstance
          Rehabilitation purposes & for its truth
          NY  allows in prior consistent statements for rehabilitation only, not to
           prove truth of the matter
              o NY & FRE same with respect to the circumstances

Rule 801(d)(1)(C)
    A statement is not hearsay if – declarant testifies at the trial or hearing & is
       subject to cross-exam concerning the statement, & the statement is . . . (C) one of
       identification of a person made after perceiving the person
           o Prior identification of a person made on a prior occasion (ex. at a lineup)
               would be hearsay without 801(d)(1)(C)
                    Closer in time to the event
                    The declarant is now under oath & can be crossed

NY CPL 60.30  Identification by means of previous recognition, in addition to present
identification
     Hearsay exception, limited to criminal proceedings
     Such testimony constitutes evidence-in-chief
     No bolstering allowed if witness is able to ID the defendant under 60.30 (where
        there is present ID)
            o [no such restriction under FRE, but there are rules against cumulative
                evidence in general]

NY CPL 60.25

Problem 10-21
Problem 10-22  Blind Man
        cop is testifying to blind man‟s out-of-court statement
        under 801(d)(1)  prior statement by a witness
              o here, declarant [the blind man] is not testifying
              o hearsay

problem 10-23
        not hearsay under FRE
        would be hearsay under NY court‟s interpretation of NY CPL 60.30  must
          be an ID of the “body”, cannot use photos


Party Admissions
Rule 801(d)(2)  Admission by party opponent
        A statement is not hearsay if –
        The 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 or 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 made a coconspirator of a party during the course and in
          furtherance of the conspiracy
        the contents of the statements shall be considered but are not alone sufficient
          to establish the declarant’s authority under (C), the agency or employment
          relationship & scope thereof under (D), or the existence of the conspiracy &
          the participation therein of the declarant & the party against whom the
          statement is offered under (E)
Party Admission  considered “Not Hearsay”
        A party admission need not be a confession, any statement made by the party
          (if relevant) can be used against the party
        Statement by a party offered against that party
        If it hurts a party‟s position at trial, it can be used against that party
                Must be used against that party
        Personal knowledge is not part of the definition of party admission
        It may be express, or it may be inferred from his conduct where he intended to
          make an assertion
        Rationale  you said it, not explain it
                Remedy  explain yourself to the jury
                Not admissible because they are inherently more reliable than hearsay
                   generally, but because of the nature of the adversary process
        Party admission  evidence, not conclusive, not binding
                Can explain, rebut, deny, offer contradicting/conflicting evidence
        Party admissions are the most common of the hearsay exceptions

Is testimony given by the witness on the stand binding? NO (it is simply evidence)
What about something said in the pleadings? Binding
         General rule  statements in pleadings are binding
         Prior admission in pleading loses its binding effect if it is later amended
                Can still be used as evidence against the party
         Can use pleadings from one case in another
What about on the criminal side?
         Ex. X pled guilty to arson & later sues insurer for money from the fire
                Insurer can use the prior plea as a party admission
         X ran red light & allegedly hit a pedestrian & X pleads guilty to running red
           light in traffic court
                Plea in traffic court can be used against X in pedestrian‟s tort case v. X
                Courts/States go both ways
                         NY allows prior pleas of traffic infraction s in later civil
                            proceedings
          X pleads guilty to assault & later withdraws it
               Can prosecutor use the original plea as evidence?
               NO  intrudes upon 5th & 6th Amendments
                       Policy reasons
                       Withdrawn pleas are out of the case  Rule 410(1)
          X pleads guilty, then withdraws it & Y later brings a civil suit v. X
               Y cannot use the original guilty plea against X in later civil suit 
                  Rule 410
               Some states (like NY) allow prior guilty pleas to be used against
                  defendant in civil suit based on the same facts

Adoptive Party Admissions (rule 801(d)(2)(B))
       To apply, statement must be offered against the adopting party & it must be
          shown that a declarant made an out-of-court statement of which the party was
          apprised or had knowledge
               Party must have comprehended the statement & either expressly
                 acknowledged the truth of the statement or remained silent where a
                 reasonable person would have denied the statement
       To avoid this, speak out that you do not concur with the other‟s words
       Silence in the face of an accusatory statement
       A arrested  must be read his rights (Miranda  prerequisite to questioning)
               Includes the Constitutional right to remain silent
               If he does not answer accusations made by the cops  silence, after
                 arrest, cannot be used against defendant
                      Silence inadmissible for constitutional reasons & question of
                          adoptive admissions is not reached
       Where are adoptive admission is advanced  the burden is on the proponent
          of such evidence to demonstrate that the adoption was intended

US v. Flecha (2d Cir. 1976)
        Defendant convicting of importing & possessing marijuana with intent to
           distribute & conspiracy to do the same
        Co-conspirator said “if we are caught, we are caught” & Customs agent
           offered testimony about this statement
                Inadmissible as “a statement by a co-conspirator of a party during the
                   course & in furtherance of the conspiracy” because the conspiracy was
                   over & the statement was not in furtherance of it
                Insufficient also as an adoptive admission
                        Too much ambiguity when staying silent in presence of the
                          police
NY says you do not have to be under arrest for silence to not be an adoptive admission
        Just being in the presence of police

Vicarious Admissions  Rule 801(d)(2)(C)&(D)
        Agents & employees
          (C)  the common law view  statements of agent can be used against
           employer only if the agent was authorized to make a statement concerning the
           subject  speaking authority required
                need foundational evidence that declarant had “speaking authority” to
                   make the declaration on behalf of party opponent
          do not need personal knowledge & the statement can even be conclusory
           (problem 10-37)
       
          NY courts  “speaking authority” (this is as far as NY goers)
       



Mahlandt v. Wild Canid Survival & Research Center (8th Cir. 1978)
        Wolf allegedly bit a child
        Employee wrote a note to superior saying the wolf bit the child
801(d)(2)(D)  goes beyond (C)
               must be made while the employment relationship exists (however, not
                 limited to when employee is on the job)
               here, employee made a statement concerning a matter within the scope
                 of the agency/employment
        you hired the person, you live with what they do, what they say
               they also are closer in time to the incident
               if not within the scope of the employment  not admissible
               does not matter to whom the person is speaking
        proponent of the vicarious admission must establish a foundation which
          demonstrates that the declarant at the time of the making of the statement was
          an employee/agent of the party against whom the statement is offered
        Under 801(d)(2)(D)  the statement of the agent/employee need only
          “concern” a matter within the scope of the agency/employment
        The statement need only concern a matter within the scope of the
          agency/employment, & as long as the statement is made while the
          agency/employment continues, the agent‟s statement is admissible against the
          principal

Conspirators  Rule 801(d)(2)(E)
       statement by a co-conspirator of a party during the course & in furtherance of
         the conspiracy
       Foundational Requirements
              1. existence of a conspiracy
              2. conspiracy includes the party (defendant)
              3. must be in furtherance of the conspiracy
                     confessing  not in furtherance of conspiracy
                     in furtherance includes”
                           o trying to solicit new members
                           o explaining it to new members
                 4. statement must be made while the conspiracy existed
                        defendant can join the conspiracy later
               no requirement of speaking authority
               does not have to be made to a co-conspirator
               Rationale  reliable
          Does not have to a criminal proceeding (can be civil  ex. fraud)
          No requirement that conspiracy be a charge
          Declarant need not to be a party in action
          SC  when main object of conspiracy has been completed  conspiracy
           ends for this hearsay exception
          Even if a statement does not satisfy the conspirator exception  it still may be
           admissible as non-hearsay or under another exception to the hearsay rule

Bruton v. US (1968)
        Joint trial resulted in convictions from both defendants on federal charge of
           armed postal armed robbery
                Postal inspector testified that one party orally confessed that he & the
                   present defendant committed the crime
                The other party‟s conviction overturned because the oral confessions
                   should not have been admitted into evidence against him
                        Defendant‟s conviction was upheld because trial judge
                           instructed jury that although party‟s confession was competent
                           against that party, it was inadmissible hearsay against
                           defendant & had to be disregarded in determining defendant‟s
                           guilt or innocence
        SC  because of the substantial risk that the jury, despite limiting instructions
           to contrary, looked to the incriminating out of court statement in determining
           defendant‟s guilt, defendant‟s right of cross-exam under 6th Amend.
        Limiting instructions are ineffective as to the co-defendants
        Confrontation Clause v. Parties right to remain silent
                Did not have opportunity to cross exam his co-defendant
Sometimes these confessions can be redacted so that the other parties are not mentioned
        Separate trials
        If joint, must exclude it totally or redact it (the parts that implicates the other
           defendants
Bruton  only applicable in criminal proceeding
        No 6th Amend. issues in civil proceedings
        Civil defendants will have to argue rule 403 (unfair prejudice, etc.)

Bourjaily v. US (1987)
        Interpretation of the co-conspirator rule
        Conspiracy to distribute cocaine
                Co-conspirator referred to defendant as a “friend”
        Judge decides whether the 4 requirements are satisfied by a preponderance of
           the evidence
        Rule 104(a)
                  What evidence can the judge rely upon in determining whether the 4
                   requirements are met?
                      o See last sentence of 104(a)  “in making its determination it is
                          not bound by the rules of evidence except those with respect to
                          privileges (plain meaning)
                801(d)(2)  amended after Bourjaily  see last sentence
                      o has to be some other evidence, judge cannot rely on the
                          statement itself
                      o contents of the statement “are not alone sufficient” to establish
                          the conspiracy
          SC  trial court may consider the offered hearsay statement itself in making
           the preliminary factual determination of whether the conspiracy existed &
           whether the statement was made in furtherance of the conspiracy
     
Common law had disallowed any bootstrapping
      had to decide entirely by independent evidence
      Still the NY rule  more protective of criminal defendants

Party admissions  essentially an estoppel doctrine
        First-hand knowledge requirement is relaxed
        General rule  party admission will not be excluded because it expresses an
          opinion or conclusion
        Because an admission is substantive evidence, its admissibility does not
          depend upon whether the party testified as a witness

Former Testimony
      3 requirements
             1. declarant must be unavailable
             2. on prior occasion, was testifying to the same issues as the current
               one
                   o if issues are the same
                   o civil  same subject matter
             3. party had opportunity to cross-exam declarant
      Codified in NY CPLR 4517 & CPL 6070.10

Rule 804(a) Definition of unavailability

Rule 804(b)(1) Hearsay exception for former testimony
        Not excluded by the hearsay rule if the declarant is unavailable as a witness:
        Former testimony  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 & similar motive to develop the
          testimony by direct, cross, or redirect examination
              o Did the party on prior occasion have similar motive & opportunity to
                cross . . . ?
              o Grand jury testimony  no opportunity to cross
                     Not admissible against defendant because of no opportunity to
                         cross
                     Could potentially be used against the government
                               Evidence given in favor of defendant, can it later be
                                used against prosecutor?  resembles cross-exam
              o The functional equivalent of cross-exam
              o Has to be a similar motive

NY CPL 670.10
      Prior testimony relates to exact same criminal charges
            o Only 3 types of prior proceedings:
                    1. prior trial
                    2. hearing upon a felony complaint
                    3. like a pre-trial deposition
            o protects the criminal defendant
      what about exculpatory evidence in grand jury proceeding?
            o People v. Robinson (NY 1997)
                    Defendant could use evidence in a grand jury proceeding
                      against prosecution
                    Not in CPL 670.10, but used due process to introduce evidence
                    1. material to defendant
                    2. exculpatory
                    3. sufficiently reliable (if prosecutor engaged in functional
                      equivalent of cross-exam)
                    4. witness is unavailable & cannot be obtained thru due
                      diligence

US v. DiNapoli (2d Cir. 1993)
        Court determined government did not have a motive to examine a witness
          during grand jury testimony similar to what it would have had if the witness
          had testified at trial

Rule 804(a)  grounds for unavailability
        1. privilege
             o declarant is exempted by ruling of the court on the grounds of
                 privilege from testifying concerning the subject matter of the
                 declarant’s statement
        2. refusal to testify
             o declarant persists in refusing to testify concerning the subject matter
                 of the declarant’s statement despite an order of the court to do so
        3. lack of memory (testifies as to a lack of memory)
             o declarant testifies to a lack of memory of the subject matter of the
                 declarant’s statement
          4. death
               o declarant is unable to be present or to testify at the hearing because of
                   death or then existing physical or mental illness or infirmity
          5. absent & presence cannot be reasonably obtained
               o declarant is absent from the hearing & the proponent of a statement
                   has been unable to procure the declarant’s attendance (or in the case
                   of a hearsay exception under (b)(2),(3), or (4), the declarant’s
                   attendance or testimony) by process or other reasonable means
          A declarant is not unavailable as a witness if his exemption, refusal, claim of
           lack of memory, inability, or absence is due to procurement or wrongdoing of
           the proponent of a statement for the purpose of preventing the witness from
           attending or testifying
          In NY, unavailability does not include a current lack of memory
          Only need an opportunity & a motive to cross
               o It is irrelevant that the party did not actually cross

HYPO
   Criminal trial  W testified for defendant (supplied an alibi)
       o Can defendant introduce W‟s testimony against insurer?
                Insurer had no opportunity to cross W
       o What about a “predecessor in interest” in civil action/proceeding?
                Would have to argue prosecutor was predecessor
                Would not work in NY

Horne v. Owens-Corning (4th Cir. 1993)
    Civil; products liability action
    Prior litigation against Owens
          o Expert testified for Owens
    In Horne, that expert is dead & Owens seeks to introduce it as former testimony
          o Horne claims no opportunity to cross
          o Court  it is admissible because the 1st plaintiffs had the same motive as
              Horne
                   1st plaintiff  predecessors in interest to Horne
    Would never be a result like Horne at common law?
          o Common-law  privity (interests in the same property)
                   NY follows the common law
          o Argument  predecessor in interest means privity

Ohio v. Roberts (1980)
    Defense witness at preliminary hearing – testimony actually aids prosecution
          o Prosecution wants to introduce her testimony, she was subpoenaed &
              unavailable
    Defendant argues hearsay & constitutional violation (Confrontation Clause –VI
       Amend.)
          o VI Amend. right to Confrontation  not absolute
                   Expresses a preference for face-to-face confrontation
                    Reliability of the evidence
      Defendant had an opportunity to cross (functional equivalent)
      Unavailability + Reliability
          o Since there was an adequate opportunity to cross-examine the witness, &
              counsel availed himself of that opportunity, the transcript bore sufficient
              “indicia of reliability” & afforded the trier of fact a satisfactory basis for
              evaluating the truth of the prior statement
      Reliability inferred when a firmly rooted hearsay exception
          o Constitutional framework
          o Need to make a separate constitutional objection to preserve it for appeal
          o Court findings as to deeply rooted hearsay exceptions
                    Former testimony                                   Excited utterances
                    Dying                                              Statements about
                       declarations                                        medical records
                    Co-conspirators                                    Business records

US v. Inadi (1985)
    Defendant convicted of conspiracy to make & sell drugs
    No real showing of unavailability
    Unavailability is not always required (backs off Roberts a little bit)
    Co-conspirator statements  unique evidentiary value
           o Probably more reliable than actual testimony
           o Unnecessary burden
    Unavailability is not always constitutionally required (is required before former
       testimony)

Rule 804(b)(2) Dying Declarations
   o Statement under belief of impending death
   o Exception to hearsay rule if the declarant is unavailable as a witness
   o 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
According to SC  firmly rooted hearsay exception
   o Original rationale  someone about to die would tell the truth, would not want to
       die with a lie on their lips
   o Have to be convinced that you are about to die
Elements
   o Homicide prosecution (or civil action) where identity of killer is at issue
   o Declarant believes death is imminent & certain
   o Statement relates to the killer or the immediate surrounding circumstances
   o Declarant needs personal knowledge

Shepard v. US (1933)
   o Defendant allegedly poisoned wife, wife tells nurse defendant poisoned her
   o Trial court allowed the dying declaration in
   o SC (Cardozo)  should not have allowed it in as a dying declaration
           o State of mind of dying declarant important
           o Must have given up all hope & spoken with consciousness of a swift &
               certain doom
Judge makes the determination as a matter of fact as to whether the requirements of a
dying declaration were met

Dying Declarations
   o If there is a glimmer of hope  not a dying declaration
   o Need a total sense of hopelessness
   o Hope can be regained later  still can be a dying declaration if you had no hope
      at time of statement
   o Defendant can even use it as exculpatory evidence
   o In a criminal proceeding, must be a homicide, other crimes, like robbery, cannot
      use a dying declaration
   o Requires declarant to be unavailable
   o Allowed in for civil actions because might as well, it is allowed in for homicides
      (which carry a higher burden of proof)
   o Rests in part on the necessity principle
   o The standard for dying declarations is SUBJECTIVE
   o The fact that the statement was solicited does not per se, preclude use of this
      exception

Rule 804(b)(3) Statement against interest
    o Not excluded by hearsay rule if declarant is unavailable
    o 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
    o 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
Statements against interest
    o Declarant must be unavailable
    o Pecuniary  financial interests
    o Proprietary  property/ownership interests
    o Rationale  you would not make a statement like this unless it was probably true
    o Very context-oriented
    o Was it self-serving or against an interest?
    o NY law on statements against interest  essentially same as FRE
Differences from Party Admissions
    o Party admissions  no requirement that it be against your interest when it was
       made or that declarant was unavailable
    o For statement against interest  must be against declarant‟s interest when it was
       made
         o Need first-hand knowledge
         o Need not be a party to the action (only needs to be relevant)
   o Must be something that exposes declarant to civil or criminal liability (this is true
     even in NY)
   o Reasonable person standard (in declarant‟s position)
   o Statement not admissible if it was against a social interest
         o Social interest  not a factor

Williamson v. US (1994)
   o Argues that part of the out-of-court statement relating to him was collateral
   o Prosecutors argue  it was all one statement (aggregate)
   o Defendant argues “statement” should be narrowly defined (singular)
   o SC rules that it should be narrowly defined  consistent with the rationale for the
       hearsay exception
   o Some aspects of the whole statement are self-serving
          o Nothing in mentioning Williamson was self-inculpatory towards Harris
   o See p. 293(B) for examples

US v. MacDonald (1982)
   o Trial court excluded the statement against interest because it was not trustworthy
   o Declarant  had serious drug problem, could not testify
   o Lack of corroborating circumstances that clearly indicate the trustworthiness

Chambers
   o SC held that the Due Process Clause affords criminal defendants the right to
     introduce into evidence third parties‟ declarations against penal interest - their
     confessions - when the circumstances surrounding the statements “provide
     considerable assurance of their reliability”

NY law on statements against interest  essentially the same as FRE
Rule 803  availability of declarant immaterial
   o (1)  (4)  in early common law - res gestae (“the thing done”)

Rule 803(2) Excited Utterance
   o a statement relating to a startling event or condition made while the declarant was
       under the stress of excitement caused by the event or condition
   o startling event  generates the stress/excitement
   o Elements
          o 1. Startling event
          o 2. Statement must relate to the startling event
          o 3. Need personal knowledge
          o 4. Declarant must still be under influence of the startling event
                   (don‟t want it to be product of reflective thought)
          o Judge makes the preliminary determination
   o Subjective inquiry (not objective)
         o Time is a factor (the longer time after event  less likely it will be an
            excited utterance
         o How startling was the event
                  Depends upon the impact on the declarant (case-by-case)
         o Was the declarant a victim or a bystander?
   o Under this rule, declarant‟s hearsay statement in reaction to a startling external
     stimulus is admissible for the truth of the substance contained in the statement
     where the statement relates to the external event & is uttered under the stress of
     excitement occasioned by the event
   o Differences from Present Sense Impressions (803(1))
         o Excited utterances must be in response to some startling occurrence, no
            such requirement for present sense impression
         o Excited utterances need only to “relate” to event, whereas present sense
            impressions must describe/explain the event
   o Rationale
         o A spontaneous statement to a startling event has sufficient trustworthiness
         o Stimulus makes declarant incapable of fabrication
         o Impression is made while still fresh & intense
         o Less susceptible to memory lapses or dangers of insincerity

US v. Iron Shell (8th Cir. 1980)
   o Victim was assaulted by defendant who intended to rape victim and spoke to cop
       about 1 hour after the assault
   o The statements were admitted at trial as an excited utterance
   o 8th Cir.  not an abuse of discretion to admit statements made up to 75 minutes
       after the fact to be excited utterances
           o the statements had “sufficient reliability in order to provide the trier of fact
               a satisfactory basis for evaluating the truth of the prior statements”
Miller v. Keating (3rd Cir. 1985)
   o statement made by unknown declarant offered at trial concerning a car accident
           o was allegedly an excited utterance
   o statement was properly excluded
           o was not sure if declarant had first hand knowledge
           o “direct proof of perception, or proof that forecloses all speculation is not
               required. On the other hand, circumstantial evidence of the declarant‟s
               personal perception must not be so scanty as to forfeit the „guarantees of
               trustworthiness‟ which form the hallmark of all exceptions to the hearsay
               rule”

Rule 803(1) - Present Sense Impression
   o a statement describing or explaining an event or condition made while the
       declarant was perceiving the event or condition, or immediately thereafter
   o need not be a startling event
   o no time to fabricate (excited utterances  no capacity to fabricate)
   o present sense impression includes “immediately thereafter” and judge must
     consider whether there has been too much time between event and the present
     sense impression
   o merely requires a contemporaneous report of sense impressions
   o a statement prompted by an event, but not descriptive or explanatory of it, is
     inadmissible under this exception

Some common law courts require corroboration of the event
   o this is not in FRE 803(1)
   o NY - People v. Brown (1993)
         o First recognition of present sense impression, but Court of Appeals said as
              a prerequisite  corroborating evidence (independent) of the event
         o In case, the corroboration  defendant fit the description given by the
              anonymous 911 caller
         o Defense lawyer did not raise a Confrontation Clause objection at trial
   o If criminal defendant  have problem with Confrontation Clause
         o Present sense impression  not a firmly rooted hearsay exception
                   Although SDNY recently said it was firmly rooted
         o If not firmly rooted  case specific analysis for indicias of
              trustworthiness

Rule 803(4) - Statements for purposes of medical diagnosis or treatment
   o 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 thereafter insofar as
       reasonably pertinent to diagnosis or treatment
   o There is a motivation to be honest & truthful
   o Need not be made to an MD, just as long as in furtherance of seeking diagnosis &
       treatment
           o Don‟t have to be seeking medical treatment from a physician
   o Motivating purpose must be medical treatment. diagnosis  “reasonably
       pertinent”
   o Allows one to identify the general cause, if it is pertinent
           o Fault & guilt  not pertinent
                   Ex. identity of the tortfeasor  beyond scope of doctor‟s diagnosis
   o Under FRE, no requirement that declarant be the one experiencing the condition
   o
   o 3 months later  she is describing it to Dr. expert witness
           o in issue is how she felt
           o at common-law  not allowed in
           o FRE  allows it in, diagnosis includes diagnosis given for purposes of
              testimony at trial
                   Rationale  can cross-exam doctor, can corroborate & at common
                      law, it was allowed in to show basis for doctor‟s diagnosis
           o NY  skeptical
                   Doesn‟t allow in statements made to experts
                     Last time it was considered 100 years ago
                     Treating physician for purposes of treatment & only ones that
                      concern current symptoms
                     AD‟s are developing body of case law
                     Won‟t let in basis for expert‟s opinion

Rule 803(3) - Then existing mental, emotional, or physical condition
   o 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
   o Does not matter who you are talking to & doesn‟t matter what the motive is
   o Goes beyond physical condition, includes then existing state of mind, emotion,
       sensation, etc. . . .
   o People can always testify as to their past conditions/how they felt on a prior
       occasion  direct testimony (not hearsay)

HYPO - Issue - Did Bo like Vince?
  o Statement - “Vince is a generous, friendly, sincere person”
          o Tends to show he likes Vince
          o Circumstantial evidence of declarant‟s state of mind
          o Do not care about the truth of the matter (was Vince actually generous,
             etc?)
          o Not hearsay, not trying to prove truth of the matter asserted
  o Belief  not a state of mind
          o Belief about something that happened in the past  excluded under
             803(3)
  o Forward-looking statements (of intent, plan) are allowed
          o Relevant circumstantial evidence

Mutual Life Insurance v. Hillmon (1892)
  o Plaintiff is trying to recover on husband‟s life insurance policy
  o Insurer claims scheme to defraud insurance company
  o Evidence  letters from Walters to his sister & fiancé say he was going
      somewhere with Hillmon
          o Out-of-court statement about Walter‟s intent/state of mind
          o Issue  Did Walters go to Crooked Creek?
  o Case inspired FFRE 803(3) with respect to intent

HYPO  Issue - Did Hillmon go to Crooked Creek?
  o To prove this, we use Walter‟s statement
  o Hillmon‟s state of mind is at issue
        o SC suggests it could be used to show Hillmon also went
People v. James (NY 1999)
   o Plan to cheat on a transit police promotion test
           o Phone calls were inadvertently recorded
   o Defendant was called into grand jury & given immunity
           o He is prosecuted in this action for perjury during grand jury proceeding
   o Prosecution has to prove defendant was at the meeting (where cheating occurred)
           o Tape recorded conversations between 2 other parties in their evidence
   o Is the tape admissible over hearsay objection?
           o NY Court of Appeals  tape is admissible
   o 4 part test
           o 1. declarant must be unavailable
                   here, declarant pled the 5th  makes him unavailable
           o 2. Must clearly be a joint participation
           o 3. has to be an inference that a meeting of minds occurred in the recent
              past
           o 4. independent evidence of reliability
   o Declarant as the boss  made it more likely/circumstantial

Only used in state-of-mind, Hillmon used to prove state of mind of a non-declarant
defendant
State of mind - Intent
    o Intent that includes participation of another person
           o Hillmon and People v. James

HYPO (problem 10-44)
  o William is testifying about Bo‟s assertion of fact  what Vince told him (Bo)
  o Would be inadmissible  2 layers of hearsay
         o Bo‟s assertion  no hearsay exception; very self-serving
         o Vince‟s assertion  about his state of mind
         o Bo (criminal defendant) would have to take the stand
  o Each layer must be satisfied when there is multiple hearsay

People v. James  Declaration against penal interest
   o 1. unavailability
   o 2. awareness that statement is against penal interest
   o 3. personal knowledge of the matter
   o circumstances suggest trustworthiness
   o naming an accomplice (James) different from Williamson (not arrested, talking to
       girlfriend, not speaking to cops under custody)
People v. James  Confrontation Clause
   o Court of Appeals  ruled against defendant
   o Not firmly rooted, but sufficiently reliable
           o Found sufficient reliability & trustworthiness
                    No reason to lie                          Relationship
                    Not under arrest                             between the
                    Close in time
Firmly rooted v. Not firmly rooted hearsay exceptions
           o If not firmly rooted  court must analyze on the facts whether there are
              guarantees of trustworthiness
           o If firmly rooted  very reliable presumptively admissible

Business Records
Rule 803(6)  Records of regularly conducted activity
    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 info
       transmitted by, a person with knowledge, if kept in the course of a regularly
       conducted business activity, & 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, or by
       certification that complies with 902(11), 902(12), or a statute permitting
       certification, unless the source of information or the method or circumstances of
       preparation indicate lack of trustworthiness.
    The term “business” as used in this paragraph includes business, institution,
       association, profession, occupation, & calling of every kind, whether or not
       conducted for profit
    NY CPLR 4518
           o 4518 & 803(6)  both interpreted & applied in (essentially) the same way
    In business, self-interest to keep accurate, timely records  reliable
    Foundational requirements
           o 1. must be made in the regular course of business (any type, need not be
               legal)
           o 2. must be the regular course of the business to make this record; Routine
           o 3. has to be made at or near time of event, act  Contemporaneous
    Party making the foundation need not be the party making the record
           o Custodian or some other qualified person
           o Someone who shows sufficient familiarity with record-keeping practices
           o Is she/he familiar with the way they were prepared?
           o No requirement that the party making the record be identified as long as
               the group making it can be identified
    803(6)  need to lay a foundation
           o sponsoring witness  one familiar with the record keeping
                    need not be established as trial  must be under oath & written
                            rule 902(11)  certified domestic records of regularly
                               conducted activity
           o in NY, only government & hospital records can be introduced by self-
               authentication
                    CPLR 3122(a) (effective 9/1/03)
                            Any business records in civil actions can be self-
                               authenticating if produced pursuant to a subpoena
    All people in the chain work for the same company
           o Rule only requires one person with personal knowledge
           o Under a business duty to be accurate (would get fired otherwise)
           o If a bystander is in the chain  not within the business
                   Would not have a business duty (a civic duty is insufficient)
           o Sources of info presented no substantial problem with ordinary business
             records. All participants, including the observer or participant furnishing
             the info to be recorded, were acting routinely, under a duty of accuracy,
             with employer reliance on the result, or in short “in the regular course of
             business.” If, however, the supplier of the info does not act in the regular
             course, an essential link is broken; the assurance of accuracy does not
             extend to the info itself, & the fact that it may be recorded with scrupulous
             accuracy is of no avail
                   Ex. police report incorporating info obtained from a bystander: the
                     officer qualifies as acting in the regular course but the informant
                     does not
                          Dealing with multiple levels of hearsay
                                 o Each level has to be looked at separately & satisfied

Absence of a record  Rule 803(7)  Absence of entry in records kept in accordance
with the provisions of (6) [business records]
   o Evidence that a matter is not included in the memoranda reports, records, or data
       compilations, in any form, kept in accordance with the provisions of (6), to prove
       nonoccurrence or nonexistence of the matter, if the mater was of a kind of which a
       memorandum, report, record, or data compilation was regularly made &
       preserved, unless the sources of information or other circumstances indicate lack
       of trustworthiness
           o Not in NY
           o Argument  this is not hearsay (not making a statement)

Palmer v. Hoffman
   o Accident report  not part of railroading, but in anticipation of litigation/a report
       prepared for litigation
   o 2d Cir.  it is “dripping with motives to misrepresent”
   o routine office visit v. visit gearing up for trial  expert testimony
           o Palmer suggests may not be admissible
   o The Palmer Doctrine  see 803(6)  “unless the source of info or the method or
       circumstances of preparation indicate lack of trustworthiness”

Business Records (first level/level one)
   o 1. made in the regular course of business
   o 2. routine
   o 3. timeliness
Level Two – Contents/source
   o 1. ex. employee‟s observation
   o 2. ex. one observes something & another records the observation
          o both under the same business enterprise
          o business duty
   o 3. an independent hearsay exception
         o ex. patient speaks to nurse about his pain & nurse records it
         o level one – business record satisfied
         o level two – patient not part of the enterprise, but still admissible because
             of another (independent) hearsay exception  here, 803(4)
   o ex. patient talks to nurse about something unrelated to treatment/diagnosis
         o defendant could get it in thru nurse‟s testimony as party admission
         o can‟t use business records  level one problem
                  not part of business of hospital to record statements of fault
                  have to subpoena nurse to get the statement in as a party admission
   o Business Records  are not all-or-nothing, some parts may be admissible, but not
     others

Public Records
Rule 803(8)  public records & reports
   o Records, reports, statements, or data compilations, in any form, of public offices
       or agencies, setting forth
           o (A) the activities of the office or agency, or
           o (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 & other law enforcement personnel, or
           o (C) in civil actions & 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
           o (A)  usually internal records of the office
           o (B)  no motive to falsify
                   government workers often take oath
                           rebuttable presumption they do their job . . .
           o under 803(8)  no requirement of timeliness, no need for custodian to lay
              a foundation
                   under 902  public records & reports are self-authenticating

Beech Aircraft v. Rainey (1988)
   o Navy training accident
   o Plaintiff brings tort claim trying to establish equipment malfunction
   o Defendant want to establish pilot error
          o Try to introduce a JAG report
   o Level one  the JAG report
   o Level two  fact
                    Opinion
                    Conclusion
   o Plaintiff argues under 803(8)(C)  only factual findings should be admissible &
      nothing in statute about opinions & conclusions
   o SC  plaintiff has wrong interpretation
          o Rule allows in reports . . . setting forth . . . factual findings
          o Tough to draw line between factual findings, opinions & conclusions
         o Last phrase of 803(8)  safe guards
                  “unless the sources of info or other circumstances indicate lack of
                     trustworthiness”
   o ACN  some factors a judge should consider (a non-exclusive list)
         o 1. timeliness of investigation
         o 2. skill/experience of the official
         o 3. was a hearing held & what level was it conducted
         o 4. possible motivation problems suggested by Palmer
   o assumes admissibility, but with ample provision for escape if sufficient negative
     factors are present
         o not an all-or-nothing proposition
                  some portions may have to be redacted
         o at minimum, there must be factual findings in the investigative report

Public Records are easier to get into evidence than business records

803(8)(C)  cannot be used against a criminal defendant
   o can only be used against the government in a criminal case
   o reason: Confrontation Clause
   o ex. Narcotics Case  defendant observed in the act of selling
          o FBI/police file a report
          o Under 803(8)(C)  report not admissible against criminal defendant
                 Fear: cops have inherent bias/not indifferent
                         Inherently done in preparation for litigation
                         Confrontation Clause & Palmer Doctrine
                 (C) prohibits use of evaluative reports against the accused under
                    any circumstances

US v. Orozco (9th Cir. 1979)
   o Non-adversarial, non-accusatory, routine by law enforcement personnel can come
       in
   o Court  concluded that Congress intended the restriction to exclude such reports
       only where the circumstances surrounding the official‟s observation were of such
       an adversarial nature as to indicate unreliability
           o When the matter observed, however, is non-routine or adversarial in
              nature, the record containing the matter may not be used against the
              accused at trial under the express terms of (B)

US v. Oates (2d Cir. 1977)
   o Finding a substance to be cocaine
   o Lab report  inadmissible, have to call the chemist to the stand
          o Chemist  considered “law enforcement personnel”
   o There is a split in authority/Some courts go the other way
   o Under 803(5)  could read it to jury (Past Recollection Recorded)
          o If chemist on stand did not remember this actual test
   o 2d Cir  cannot use 803(6) to get it in thru the back door because it was excluded
       under 803(8)(C)  Palmer Doctrine (in preparation for trial/litigation)
   o 803(6)  a firmly rooted hearsay exception
Rule 803(17)
Rule 803(12)
Rule 803(15)
Rule 803(13

Rule 804(b)(4)  Statement of personal or family history
   o declarant must be unavailable as a witness
   o (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
   o (B) a statement concerning the foregoing matters, & 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
   o the common law “pedigree” hearsay exception

Dallas County v. Commercial Union Assurance (5th Cir. 1961)
   o Dallas  claimed lightning destroyed the clock tower
           o Lightning was covered under the insurance policy
   o Insurer  claimed a structural defect (from a previous fire)
           o Structural defects  not covered
           o Wanted to introduce a 50 year old newspaper article about a fire
   o Newspapers  do not qualify as business records
   o Ct  looks at the rationale of hearsay exceptions
           o Trustworthiness & reliability
           o (cross-exam would be of limited utility)
   o theory of potential admissibility which in now codified in 807
Rule 807  Residual Exception
   o a statement not specifically covered by 803 or 804 but having equivalent
       guarantees of trustworthiness is not excluded by the hearsay rule, if the court
       determines that
           o (A) the statement is offered as evidence of a material fact;
           o (B) the statement is more probative on the point for which it is offered
              than any other evidence which the proponent can procure thru reasonable
              efforts; and
           o (C) the general purposes of these rules & the interests of justice will best
              be served by admission of the statement into evidence
   o However, a statement may not be admitted under this exception unless the
       proponent of it makes known to the adverse party with a fair opportunity to
       prepare to meet it, the proponent’s intention to offer the statement & the
       particulars of it, including name & address of declarant
   o A “catch-all”
   o Have to give other side notice
   o Senate Committee  it is intended to be used rarely, only in exceptional
     circumstances
   o AC Note  doesn‟t contemplate an unfettered exercise of judicial discretion, but
     they do provide for treating new & presently unanticipated situations which
     demonstrate a trustworthiness within the spirit of the specifically stated
     exceptions

Example (problem 10-88)
   o Defendant is offering testimony at Congressional hearing against prosecution
          o Prosecutor had no opportunity to cross
   o It was under oath, at Congressional hearing
          o Almost like cross-exam (asked a lot of questions)
   o Prosecutor will have different questions/different types of questions
   o Lies within the judge‟s discretion (only reversible for abuse of discretion)

Idaho v. Wright (1990)
   o Child was sexually abused at 2½, was 3 at time of trial
          o She could not testify
   o What about statements she made to an examining psychiatrist
          o Confrontation Clause issue
          o Residual Exception  not firmly rooted
                   Ct  must look for particularized guarantees of trustworthiness in
                     a case-by-case basis
   o SC  takes narrow view of reliability
          o The “particularized guarantees of trustworthiness” required for admission
              under Confrontation Clause must likewise be drawn from the totality of
              circumstances that surround the making of the statement & that render the
              declarant particularly worthy of belief

Rule 804(b)(6)  Forfeiture by wrongdoing
   o A statement offered against a party that has engaged or acquiesced in
       wrongdoing that was intended to, & did, procure the unavailability of the
       declarant as a witness
   o Reliability is not the theory  forfeiture is
          o Forfeiture your right to cross by your wrongdoing
          o Preponderance of the evidence
                   A rule 104(a) fact finding

NY has no residual hearsay exception
  o Does have forfeiture by wrongdoing (requires clear & convincing evidence)

Rule 805  hearsay within hearsay
   o 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
Rule 806  attacking & supporting credibility of declarant



Opinion Testimony
         o Lay v. Expert
         o Lay witnesses  testify to facts, not to opinions
         o How do you distinguish between facts & opinions?
                 Facts  more specific
                 Opinions  more general
                 Prefer the concrete to the conclusory
         o Short hand renditions of fact
                 Summation
                 Common law allowed it, if party had first-hand knowledge

Rule 701  Opinion Testimony by Law Witnesses
        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
               o (a) rationally based on the perception of the witness, and
               o (b) helpful to a clear understanding of the witness’ testimony or the
                   determination of a fact in issue, and
               o (c) not based on scientific, technical or other specialized knowledge
                   within the scope of 702
        must be helpful (to the jury) & based on rational observation
Permissible subjects for lay opinion
        estimations of speed, distance or temperature
               o ex. speed of cars/motorcycles
        identification of persons or objects
               o ex. voice or handwriting identification
        a person‟s appearance, including physical characteristics
               o ex. estimating a person‟s height, weight, or age
        the value of one‟s property or services
               o ex. the value of real estate
        odors & their identity
               o ex. smelling of smoke
        person‟s emotional or mental state
               o ex. another person‟s anger or sadness
        short-hand renditions of fact, comprising sensory impressions commonly
           recognized in opinion form
               o ex. a person‟s state of intoxication

Lay persons can testify regarding insanity defense
        in NY, this is no so easy
              o often in civil cases, regarding wills
              o lay people can characterize the actions, but not the individuals (direct
                  characterization)
               o in NY, subscribing witness is allowed to give an outright opinion
                 whether testator seemed sane/rational
                      psychiatrists can give outright opinions

Expert Testimony
        1. Qualifications of an expert
        2. Proper Subject Matter of the Expert Testimony
        3. Reliability
        4. What is the proper form & basis for testimony?
               o What can expert rely upon?
        5. Cross-Examination of Experts
        the judge makes the determination whether to allow an expert to give expert
           testimony
Qualifying the Expert
        experts are defined as those person with special knowledge, training,
           experience, or skill who can assist the trier of fact in understanding the
           evidence or in determining the facts at issue
        a witness must be shown to be qualified as an expert before he/she will be
           permitted to testify as an expert
        witness may qualify as an expert by virtue of education, skill, training,
           experience, or a combination of these factors
        evidence procedure usually requires counsel to qualify the witness as an
           expert in a specific field
        the opponent of the witness can accept the witness as an expert, object to the
           witness as an expert, or ask to conduct a voir dire of the witness about his/her
           qualification
        Done in front of jury  we want jury to heat expert‟s qualifications, it goes to
           the credibility of the expert
        Don‟t have to accept an offer of stipulation that expert is qualified (this is not
           recommended)  you want the jury to hear expert‟s resume, qualifications

Rule 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
              o (1) the testimony is based upon sufficient facts or data,
              o (2) the testimony is the product of reliable principles & methods, and
              o (3) the witness has applied the principles & methods reliably to the
                  facts of the case
        education is not the only way to be a qualified expert
        original requirement for experts  necessity (matters lay persons were
          incapable of understanding)
              o the standard in 702  not based on necessity
                       will it assist the jury?  Expertise could help sharpen the
                           common sense of jurors
          Most courts won‟t let arresting/investigating cop give the general background
             o Need separate expert
             o Must be helpful to the jury

Fresh Complaint Doctrine (in Rape)
        Rape Trauma Syndrome  would show non-reporting is not inconsistent with
         the happening of the rape

Reliability Issues  most often occurs involving scientific knowledge

People v. Chambers (NY 1987)
        Amylase stain on jacket  was it related to saliva?
        Defendant objects  test was not a generally accepted test in the relevant
           scientific community (Frye standard)
               o Can proponent establish to judge‟s satisfaction that the method is
                   generally accepted
        A “Frye” hearing
               o Could use experts, treatises, other judicial decisions
        NY  uses the Frye standard
               o NY has not adopted Daubert, still uses Frye
               o Uncertainty whether Frye standard as to non-scientific knowledge

Daubert v. Merrell Dow (1993)
       Argument  Benedictin causes birth defects
       Defendant moved for SJ  had an expert say there was no generally accepted
           connection (in the literature)
       Plaintiff introduces: pharmacological studies, animal tests, & reanalysis of the
           same studies defendant introduce
       Trial court  grants SJ, plaintiff‟s evidence was not generally accepted
       SC  What is the standard today for admitting scientific expert testimony?
              o Rule 702 does not require general acceptance
              o Is Frye still the standard? NO
              o 702 standard  Scientific knowledge that will assist trier of fact
                       more than subjective belief
                       valid scientific method was uses
              o factors that bear upon reliability of the scientific method (for trial
                  judge) [TRAPS]
                       1. Has it been Tested?
                       2. Peer Review & Publication
                       3. Rate of error
                       4. Standards controlling the technique‟s operation
                       5. Frye (generally Accepted) still a fact, but not determinative
                       courts can still consider other factors
       On remand, Daubert court added another factor  the test were done in
           preparation for litigation
Kumho Tire v. Carmichael (1999)
      Does Daubert approach apply to other experts who aren‟t scientific experts?
      Trial court given discretion Is the testimony reliable & helpful?
      Used Daubert to find it was not sufficiently reliable

Daubert/Kumho hearings in federal court
        To be reliable, the evidence need not be conclusive (this is a decision for the
           jury; judge is making a threshold determination)
        Nothing in either Daubert or the FRE requires a district court to admit opinion
           evidence which is connected to existing data only be the ipse dixit of the
           expert. A court may conclude that there is simply too great an analytical gap
           between the data & the opinion proffered
The end of 702  codifies Daubert & Kumho
        1. testimony is based upon sufficient facts or data
        2. testimony is the product of reliable principles & methods
        3. witness has applied the principles & methods reliably to the facts of the
           case
               o still needs to assist the fact finder

US v. Rincon (9th Cir. 1994)
        convicted of unarmed bank robbery
        had an expert (psychologist) who has studied eyewitness accounts
        Daubert  did not establish scientific knowledge
        Does it assist fact finder? [rule 403 is taken into account – relevancy]

In what form may expert testimony be given & what basis?

Rule 705  Disclosure of Facts or Data Underlying Expert Opinion
        The expert may testify in terms of opinion or inference & give reasons
           therefore 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
        [common law required disclosure of basis before giving the opinion  screen
           experts‟ opinion before it is given]
        under 705  flaws, if any, will be exposed on cross-exam
        Court is the gatekeeper (court can require otherwise)
               o Ex. when something may/may not satisfy Daubert
What is proper basis for expert to rely on?
Hypothetical Questions
        Don‟t allow hypothetical questions to be posed to lay witnesses
Rule 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. 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. Facts or data that are otherwise inadmissible shall
           not be disclosed to the jury by the proponent of the 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
          Personal knowledge
          Other evidence that is in the record
               o Traditional rule  ask the experts a hypothetical question
                        Must be based on admissible evidence
                        Timing lies in the court‟s discretion (evidence may not have
                           been present  conditional relevance)
                        If connection never materializes, other side should object &
                           move to strike
          Can still use evidence for the basis of opinion even though it isn‟t or can‟t be
           introduced into evidence
               o Rationale: if good enough/sufficiently reliable in expert‟s professional
                   work they can use it to form their opinion, even though the evidence is
                   inadmissible
          Judge still has to be convinced that this is the type of info reasonably relied on
           in the expert‟s field
               o Testimony may be required or judge can take judicial notice
          Last sentence of 703  facts/data not otherwise admissible cannot be
           disclosed to jury by proponent
               o Cannot get hearsay in through the back door)
               o Unless court determines . . .
                        With limiting instructions
               o Opponent can get the facts/data otherwise inadmissible into
                   evidence/disclose it to jury (still hearsay/need limiting instructions)
                        Analogous to refreshing witness‟ memory
          Some case law  expert cannot rely solely on hearsay/facts or data not in
           evidence
          NY follows 703 thru case law

Rule 704  Opinion of Ultimate Issue
        (a) except as provided in (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 a defense thereto. Such ultimate issues are
          matters for the trier of fact alone
        invades the province of the jury
        expert who testifies in legal jargon  not aiding the jury
        ACN  under 701 & 702, opinions must be helpful to the trier of fact, & 403
          provides for exclusion of evidence which wastes time. These provisions afford
          ample assurances against the admission of opinions which would merely tell
           the jury what result to reach . . . they also stand ready to exclude opinions
           phrased in terms of inadequately explored legal criteria
          At common law  experts should not testify as to an ultimate issue, invades
           the province of the jury
               o 704(a) abolishes this & abolishes ultimate issue as an objection
                        can still object that the testimony is not helpful to the jury
                               legal jargon, witness is telling the jury how to decide
                               expert cannot testify in form of legal standards, cannot
                                   mouth the words of the statute
               o 704(b)  applies in criminal cases, concerning defendant‟s mental
                   state
                        experts are allowed to go up to a certain point
                               can talk about your diagnosis, generalized info
                        judge must make decision if expert goes too far & invades into
                          704(b)

Rule 803(18)  Learned Treatises
        not excluded by the hearsay rule, even though declarant is available as a
          witness:
        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
        common law  allowed cross with learned treatises (to impeach credibility)
              o must be accepted as authority by the witness
              o cannot use the treatise to prove the truth of the matter asserted, only
                  for impeachment purposes
              o NY follows the common law  only permissible use of learned
                  treatises was to show the basis for the expert‟s opinion on direct, or for
                  impeachment on cross
        803(18)  a hearsay exception
              o jury can accept the truth of the statement in the treatise
                       once the authority is established as reliable, statements
                          contained in treatises & the like which are addressed on direct
                          or cross may be considered as substantive evidence
                       to use a treatise as substantive evidence, proponent also must
                          demonstrate either that the expert relied upon the work on
                          direct or that the work was called to expert‟s attention on cross
              o can be used on cross-exam & on direct-exam of your own expert
              o can be read into evidence, but cannot be received as an exhibit
              o FRE  not bound by witness‟ answer
              o Judge can take judicial notice
        In federal case on direct, party cannot afford an expert
               o Party cannot bring in a learned treatise without an expert on the stand
                      Need “sponsoring witness/expert”
               o To prevent possibility of misuse of the evidence by jury, statements in
                 books & articles may not be offered as substantive evidence
                 independent of expert testimony

Best Evidence Rule  Rules 1001 to 1008 (Article X of FRE)
        Original Writing Rule/Original Documents Rule
        Rule only applies to writings, etc. when trying to prove the contents of that
          writing
               If a consequential fact is sought to be proven, rule is not triggered
        Essence of rule  in proving the contents of a writing, recording, or
          photograph, the original is preferentially required; but if the original is
          unavailable thru no fault of proponent, secondary evidence may be admitted
               Rule of preference, original is preferred to secondary evidence

Rule 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
Rationale of the Best Evidence Rule
        Danger of fraud
        Material, crucial to the outcome
        Frailty of human memory
        Hazard of inaccurate or incomplete duplication

Purposes of the Best Evidence Rule
        1. necessary to guarantee the accuracy of evidence introduce to prove the
          contents of writings, recordings, & some photographs
        2. possibility of error in reproduction necessitates production of the original
        3. use of original may provide info which copies cannot (like watermarks or
          indications of the ink type that may aid in identification of a writing)
        4. prevention of fraud is fostered by requirement of the original
        5. also assures that portions, although accurately transmitted, are not
          selectively removed
Rule 1002 only applies when 2 conditions occur:
        1. the evidence involves a writing, recording, or photograph, and
        2. the object of proof is the contents of that writing, recording, or photograph



Seiler v. Lucasfilm (9th Cir. 1987)
         Claims defendant infringed on his copyright
         Tries to prove case by “reconstructions” made after the defendant‟s movie
            was released
         Defendant invokes the Best Evidence Rule
                  Says plaintiff is trying to prove the contents of a writings
                  Plaintiff says the “reconstructions” are not writing, not under Best
                   Evidence Rule
          Rule 1001(1)  definition of “Writings and Recordings”
                “writings” and “recordings” consist of letters, words, or numbers, or
                   their equivalent, set down by handwriting, typewriting, printing,
                   photostating, photographing, magnetic impulse, mechanical or
                   electronic recording, or other forms of data compilation
          “or their equivalent”  plaintiff‟s artwork falls under writings because of this
           (functional equivalent for purposes of best evidence rule)
          Court‟s rationale  to prevent fraud
                                Oral testimony based on memory  not always reliable
          Best Evidence Rule applies
                Plaintiff would have to show originals were unavailable thru not fault
                   of his own
                       o Judge  he did not make this showing

Rule 1001(1)  where contents are the object of proof, federal courts have clearly held
that writing within the scope of the best evidence rule includes:
         Written contracts                                Corp. records
         Written letters/statements                       Public records

Rule 1001(3)  Definition of Original
        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 . . . 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”
              o Includes any counterpart intended by the person issuing/executing it to
                  be an original
              o A “duplicate original”, a counterpart of an original instrument intended
                  by the parties to have the effect of an original, is to be treated as an
                  original
                        “duplicate original” is a distinguishable concept from a
                             “duplicate”
                        duplicate original  when, by virtue of intent, there is more
                             than one original (ex. where parties to a bilateral K intend that
                             each should have an executed original)

US v. Duffy (5th Cir. 1972)
        Defendant convicted of transporting stolen vehicle
        Shirt in car had a laundry mark “D U F”
               FBI agent & cop testify to the shirt
        Defendant claims this was a writing & therefore best evidence rule applies
               Court  best evidence rule does not apply
                      o Shirt is a chattel that has writing on it
                        o Was not central or critical to the case
          See factors mentioned in Duffy  court looks at these in its discretion
Determining when you are viewed as trying to prove the contents of a writing
          Where the writing creates/destroys a legal relationship
                  Ex. written K, K governed by the statute of frauds, deeds, mortgage,
                    promissory note, libel (written defamation)
Best evidence rule is not applicable just because an event was subsequently recorded in
writing
          The best evidence is not triggered simply because some act or transaction is
             subsequently recorded in a writing
                  Ex. rule does not require use of a receipt which memorializes a
                    transaction where the fact of the transaction is the object of proof
                         The receipt corroborates an independent transaction
                  Ex. rule not applicable when defendant testifies about his salary (need
                    not produce his payroll stubs)
                         In both these examples, the party had first-hand knowledge of
                            the event
                  Don‟t have to prove a birthdate by a birth certificate
                  But divorce  need a judicial decree
                  Ex. defendant made an oral confession & it was also written down
                         Event has independent existence regardless of whether it was
                            written down
                         A cop can testify as to the oral confession without the
                            subsequent written confession
                         If cop takes the stand, but was not there when the statements
                            were made (he had read the written confession)
                                 He has no first-hand knowledge, testimony is based on
                                     contents of a writing
                                 This would trigger the best evidence rule
US v. Alger Hiss  charged with perjury
          Gave false testimony regardless of whether it was recorded
          Not a written event
          Can prove what he said through someone else‟s memory of what he said (or
             through the transcript)
          Best evidence rule does not apply
Former Testimony Hearsay Exception  need not be done by the transcript (although
this is the best way)

If event is independent & it is written down & the witness does not have first-hand
knowledge  the witness is testifying about a writing (trying to prove the contents of a
writing)  the best evidence rule applies
HYPO  “My payroll records indicate that I made $15k last year”
         If you try to prove it thru the writing & not your memory  the best evidence
             rule applies
Refreshing recollection through document & then testifying based on (your refreshed)
memory  best evidence rule is not triggered
          Not testifying based on the document, but on your refreshed memory

Admissibility of the Writing as Evidence  factors
         Is it relevant?
         If you are trying to prove its contents  Best Evidence
         Is it authentic?
         Are you trying to prove the truth of the matter asserted/hearsay?
                 Is there a hearsay exception?
If other side objects on best evidence grounds, but not on authenticity or hearsay  other
side would waive right to appeal/object on those grounds
         If other side raises 4 objections  you must meet all 4 to admit the evidence

Duplicates
        Rule 1001(4) definition of duplicate
                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 & miniatures, or by mechanical or electronic
                   re-recording, or by chemical reproduction, or by other equivalent
                   techniques which accurately reproduces the original
        Rule 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
        Duplicate originals  made contemporaneously from . . .
        1003  provides that duplicates are generally admissible as originals in all
           cases except where there is a genuine question of the authenticity of the
           original or where admission of the duplicate instead of the original would be
           unfair
        only questions concerning admissibility to be considered by the court pursuant
           to 1003 are
                1. where there is a genuine question of authenticity, and
                2. whether admission of the duplicate in the circumstances would be
                   unfair
                        determination of unfairness  for the court
        1003 provides that duplicates are presumptively the equivalent of originals
                burden is on opponent of the duplicate to establish conditions requiring
                   the use of the original
        duplicate not admissible when there is a genuine question as to the
           authenticity of original
        duplicate not admissible when there is a genuine issue of whether the original
           is what its proponent claims it to be

NY CPLR 4539  will allow photocopies to satisfy the best evidence rule is made in the
ordinary course of business
Rule 1005 Public Record
        The contents of an official record, or of a document authorized to be recorded
          or filed & actually recorded or filed, including data compilations in any form,
          if otherwise admissible, may be proved by copy, certified as correct in
          accordance with Rule 902 or testified to be correct by a witness who has
          compared it with the original. If a copy which complies with the foregoing
          cannot be obtained by the exercise of reasonable diligence, then other
          evidence of the contents may be given
        Use a certified copy
                Satisfies best evidence & authentication
                We want originals to stay on file with the government

Rule 1004 Admissibility of Other Evidence of Contents
        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
                              has elements of due diligence & practicability
              (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, & that party does not
                 produce the original at the hearing
                      have to put other side on notice (notice to produce) & they do
                         not bring it  can use secondary evidence
                      [can also try to get it subpoenaed]
              (4) Collateral matters  the writing, recording, or photograph is not
                 closely related to a controlling issue

Rule 1008  Functions of Court & Jury
        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, the question whether the condition has been fulfilled is ordinarily for the
          court to determine in accordance with the provisions of Rule 104. However,
          when as issue is raised (a) whether the asserted writing ever existed, or (b)
          whether another writing, recording, or photograph produce 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 to determine as in the case of other
          issues of fact.

Jury decides whether secondary evidence accurately reflects the contents

Once you produce secondary evidence, you can choose how you want to prove it
            no degree/hierarchy of secondary evidence

Rule 1006  Summaries
        the contents of voluminous writings, recordings, or photographs which cannot
          conveniently be examined in court may be presented in the form of a chart,
          summary, or calculation. The originals, or duplicates, shall be made available
          for examination or copying, or both, by other parties at reasonable time &
          place. The court may order that they be produced in court.
               Cannot conveniently be examined in court
               Must make originals available for exam by other side

Privileges

Rationale  there are relationships/values in society that are more important (in the
grand scheme) than assertion of truth

Rule 501  General Rule
       o Except as otherwise required by the Constitution of US or provided by Act of
          Congress or in rules prescribed by the SC pursuant to statutory authority, the
          privileges 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 US in the light of reason & experience.
       o However, in civil actions & proceedings, with respect to an element of a claim
          or defense as to which State law supplies the rule of decision, the privilege of
          a witness, person, government, State, or political subdivision thereof shall be
          determined in accordance with State law
              o Federal judges have no code of privilege to work from
              o Common law of privileges apply
              o For diversity jurisdiction  look to state privilege law
                       Every state has different privilege laws

Matrimonial Privileges
      o Confidential Communications between Spouses
              o During the course of the marriage
              o Broader  applies in both civil & criminal
              o Rationale: encourage frank, open communications between spouses,
                  candor between spouses
              o Recognized at common law (NY CLPR 4502(b))
              o Federal courts recognize it
              o Requirements
                      1. Communication must be in confidence
                            o no one else can be present
                      2. Communication must be induced by the marital relationship
                            o doesn‟t have to relate to the marriage
                      3. Communication must be made during the marriage
                            o not before or after
             o Confidential communications do not come to end upon the death of
                 one of the parties; also applies if they are divorced
       o Privilege Against Adverse Spousal Testimony
             o Only applies in criminal cases
             o One spouse cannot be forced to testify against defendant spouse in a
                 criminal case
                      No such privilege under NY law (NY only recognizes
                         confidential communications)
             o Rationale: preserve marital harmony at the time testimony is
                 sought/when spouse is on trial
             o Privilege is only held by the witness spouse
                      Defendant spouse cannot invoke this privilege to prevent
                         witness spouse from testifying
                      Trammel v. US  if witness spouse wants to testify, no marital
                         harmony . . .
             o If no longer married at the time of trial  adverse spousal privilege
                 can no longer be invoked  it ends when the marriage ends

Problem 12-1
   o If not married at the time, no confidential communication
   o If adverse spousal applies, witness spouse can refuse to testify (does not matter
       what she would be testifying about)
           o If witness spouse wants to testify, defendant spouse cannot stop her from
               testifying to non-confidential communications
   o Communication can be an act  if done in confidence because of the marital
       relationship
   o Presence of a third-party  no confidentiality
   o If spouse was a participant/accomplish  no privilege, because of the crime-fraud
       exception
   o For policy reasons  crimes committed against children of the marriage 
       except to the privilege
   o There is a growing sense that there should be a parent-child privilege
           o Most federal courts reject this
           o Some states (NY has some AD decisions where child confesses to parent
               for parental guidance)

Attorney-Client Privilege
   o Principle  testimony cannot be compelled on a confidential communication
       between attorney and client relating to the representation
   o Held by the client, but attorney is ethically bound to raise it on client‟s behalf
   o Rationale  want attorney to provide good legal services & best done if client is
       not holding anything back/candid with lawyer
           o View in long run as aiding in administration of justice
   o Privilege applies even if you are seeking to become a client, even if you do not
       ultimately become a client
           o Exploratory communications if confidential
   o If client reasonably believes/reasonably under the impression that person is a
     lawyer  test: reasonableness
   o If lawyer gives business advice  not part of attorney-client privilege
          o If predominant purpose is for legal services, fact that there is some
              business considerations  covered under attorney-client privilege
                   Judge would perform in camera review or hold a hearing in
                     camera
                   See rule 104(a)
   o Privilege covers communications, not the underlying facts
          o Just because you tell your lawyer the facts, it does not immunize the facts
              from discovery
   o Privilege does not exist as to:
          o Identity of client
          o Underlying facts
   o Lawyer‟s communications to client are protected by privilege (at least as much as
     they reveal/contain confidences the lawyer got from the client)
          o Some courts  all legal advice within privilege
          o Some courts  may redact some things that are public knowledge

NY CPLR 4503(a)(1)
   o Confidential Communication privileged  unless the client waives the privilege,
      an attorney or his/her employee, or any person who obtains without the
      knowledge of the client evidence of a confidential communication made between
      the attorney or his/her employee and the client in the course of professional
      employment, shall not disclose, or be allowed to disclose such communication,
      nor shall the client be compelled to disclose such communication, in any action
      ...
   o Uses “between the attorney . . . and the client”
          o A two-way street
   o Client‟s communication includes words, speech or conduct observed by a lawyer
      in confidence (not on public display)


Waiver of privilege
  o If you tell someone “This is what I told my attorney . . . “  this acts as a waiver
  o Revealing the communication waives the privilege

Problem 12-3
   o A knife is physical evidence  not a communication
          o Would have to be turned over  not privileged
          o Knife  would have to be authenticated through some other way, cannot
              authenticate thru the lawyer
   o Circumstances under which it came into attorney‟s possession if done under
       confidentiality  it is a communication & is privileged

3rd party is paying client‟s/defendant‟s fees
   o Is identity of client within attorney-client privilege?
   o Fact that lawyer represents client  not privileged
           o Exception : if government has the communication, but not the identity of
               party, if lawyer reveals the identity  it would reveal the communication
                this would be privileged
Court‟s investigation into whether a communication is privileged
   o Rule 104(a)  judge is bound by the rules of privilege
           o Judge can look at communications in camera
                    A doctrine of necessity

If having attorney-client conversation at crowded party  not confidential/not under the
privilege
    o Bringing a 3rd party destroys confidentiality
    o Common law took strict view  if eavesdropper overheard, no confidentiality
            o NY CPLR 4503  changed the common law in NY (no longer follows
                eavesdropper rule)
            o Fed‟l Courts  look at the reasonable expectations of the client
    o If paralegal/secretary is in room during the communication between attorney &
        client  still confidential
            o Presence/access of these people does not destroy confidentiality under an
                agency theory (they are agents of the attorney)
    o What about agents of the clients?
            o Courts are more skeptical
            o If there to facilitate the communication  Okay
    o Confidential communications between client & their accountant  not privileged
            o 26 USCA 7525  creates an accountant-client privilege but only for civil
                tax proceedings before the IRS (administrative hearings only, not for cases
                in federal courts)
    o if accountant is reasonably necessary for attorney to give legal advice within the
        communication
            o privileged under agency, but it has to be for legal services
            o harder when client goes to accountant first for financial/business purposes
                & then goes to the lawyer for legal services
    o 2 people go to same attorney concerning common legal problem
            o when two or more persons consult an attorney about a common matter,
                each client retains the right to assert the attorney-client privilege against a
                third party
            o however, in a dispute between the joint clients the privilege is inapplicable
                since joint consultation indicates the clients did not intend for their
                communications to be confidential
                     expect confidentiality with respect to outside world but not as
                        between each other
            o people going to same attorney  potential conflict of interest
Attorney cannot waive the privilege/only client (as holder of the privilege) can waive the
privilege
    o voluntary disclosure by client is waiver
   o Waiver  not by revealing the fact, but by revealing the communication
   o Implied Waiver
          o Ex. using attorney advice as a defense  putting the communication into
               issue
          o If lawyer lets it out  not a waiver, client did not authorize the disclosure
Crime-Fraud Exception
   o If client [client‟s intention] is seeking to use lawyer to commit future crimes
   o Court often must look at communication in camera  what is the client‟s
      intention?
When client is the Corporation
   o Who has/who can assert the privilege?
   o Upjohn v. US  applicable only in federal court under federal law
          o SC rejected the “control group” standard
          o See p.213
   o NY seems to follow Upjohn
   o If diversity, state still uses control group  federal court must apply state
      privilege law, here control group
   o Ex. if technician tells corp. counsel
          o Technician is not client (cannot invoke the privilege)
          o Corp. entity (being client) is holder of the privilege

Attorney Work-Product
   o Created in anticipation of litigation
   o Rationale: adversarial system  every side does their own work
           o Most lawyers write things down
           o Lawyer should have a “zone of privacy”
   o Don‟t have to be a lawyer for work-product doctrine to apply, but it must be in
       anticipation of litigation
           o Does not have to be litigation for attorney-client privilege to apply
   o Work-product  not absolute, it is a qualified privilege
           o Substantial need  no other way to obtain the material
Doctor-Patient Privilege
   o Created by statute (not found in common law)
           o NY was first state to recognize this
                    In NY  exception for gunshot wounds (doctors must report this)
                    No privilege for communications regarding gunshot wounds
   o Covers communications made in confidence between doctor & patient for
       treatment or diagnosis
           o Rationale: privacy
   o Does not apply to doctor‟s observations that would be readily noticeable by any
       lay person
   o Identity of patient not privileged
   o Patient  holder of the privilege
           o If patient is a plaintiff  will often waive the privilege
   o Implied Waiver  when personal injury plaintiff sues for damages, plaintiff
       cannot invoke the privilege (would be unfair to defendant)
Jaffee v. Redmond (1996)
    o Adopts privilege between patient & psychotherapist
    o Want to encourage open communications with psychotherapist
    o For federal cases involving federal law
No doctor-patient privilege in federal courts [in criminal or civil cases]
    o When substantive law  based on federal law
    o If diversity, use state law privileges & if state recognizes doctor-patient privilege,
        federal court must follow it
    o Federal courts  only psychotherapist-patient privilege


Judicial Notice
   o Dispenses with the need for evidence
   o Court can take judicial notice when a fact is beyond reasonable controversy
       (within the jurisdiction where court is located)
   o Prevents irrational jury findings

Rule 201  Judicial Notice of Adjudicative Facts
   o (a) scope of rule  this rule governs only judicial notice of adjudicative facts
   o (b) kind of facts  A judicially noticed fact must be one not subject to reasonable
       dispute in that it is either:
           o (1) generally known within the territorial jurisdiction of the trial court or
           o (2) capable of accurate & ready determination by resort to sources whose
               accuracy cannot reasonably be questioned
   o (c) when discretionary  a court may take judicial notice, whether requested or
       not
   o (d) when mandatory  a court shall take judicial notice if requested by a party &
       supplied with the necessary information
   o (e) opportunity to be heard  a party is entitled upon timely request to an
       opportunity to be heard as to the propriety of taking judicial notice & the tenor of
       the matter noticed. In the absence of prior notification, the request may be made
       after judicial notice has been taken
   o (f) time of taking judicial notice  judicial notice may be taken at any stage of
       the proceeding
   o (g) instructing jury  in a civil action or proceeding, the court shall instruct the
       jury to accept as conclusive any fact judicially noticed
           o in a criminal case, the court shall instruct the jury that it may, but is not
               required to, accept as conclusive any fact judicially noticed

Adjudicative facts  who did what to whom
    o must be fact generally known in territorial jurisdiction of trial court or capable of
       accurate & ready determination by resort to sources whose accuracy cannot be
       reasonably questioned (indisputable accuracy/beyond reasonable dispute)
    o cannot take judicial notice if the fact is not reasonably undisputed
Judicial Notice of law  not covered by 201
   o statutes, judicial opinions
   o courts generally won‟t take judicial notice of foreign law
           o may be necessary to get expert testimony on the foreign nation law (not in
               presence of jury)

Examples of things typically judicially noticed
   o population of area                             o political facts
   o prevailing financial rates                     o distance between places
   o locations or buildings, parks, etc.            o public events of wide notoriety
   o geographical facts                             o time, days, dates
   o historical facts                               o weights, measures, & value
   o reasonably undisputed facts of history
   o facts of science  can take judicial notice
   o courts take judicial notice of radar (Doppler, how radar works)
   o judge may take judicial notice of commercial facts (facts of commerce)  may
      depend on the jurisdiction/locale
   o can take judicial notice of human nature
          o ex. judicial notice taken that humans don‟t grow to 9‟ tall

Judge‟s personal knowledge does not qualify; is not the standard
     o it is an objective standard
Can take judicial notice at any stage of the proceeding  201(f)
     o may even be taken for the first time on appeal
     o often used to fill in gaps/facts in evidence
            o prevents irrational decisions by jury
201(e)  opportunity to be heard
     o opponent must be given chance to convince judge not to take judicial notice
If judge does not take judicial notice  must present evidence & the jury decides
201(c)  judge can take judicial notice sua sponte
     o other side must be able to try & convince judge otherwise
            o notice & opportunity to be heard
Instructing Jury  201(g)
     o civil  fact is conclusive, jury must follow it & other side cannot offer evidence
        to the contrary
     o Criminal  permissive, not mandatory
            o No directed verdicts against criminal defendant
            o Jury can ignore/reject even the most obvious fact

Burden of Proof
   o Burden of persuasion  “burden of proof”
          o Must persuade the trier of fact
   o Burden of production
          o Party with this must come forward with some evidence
          o If plaintiff fails to meet the burden of production (fails to produce
             sufficient evidence)  other side will seek a motion for a directed verdict
   o These to burdens occur simultaneously

Presumptions
   o Help the parties to meet their burdens of proof/production
   o Ex. proof of mailing  presumption that it was received
         o One of the most common presumptions
   o Basic Set of Facts  leads to  the Presumed facts
         o If there is no evidence to the contrary
   o How does other side answer the presumption?
         o Ex. in mailing case  must produce evidence that it wasn‟t received
   o If presumption is not rebutted  directed verdict
         o If not rebutted  presumed fact becomes conclusive

Types of Presumptions
   o Rebuttable
   o Irrebuttable (rare)
           o Ex. at common law, any child under 7 was incapable of committing a
              crime
           o Really a rule of law
           o Ex. persons are presumed to know the law
   o Common Presumptions
           o A letter properly addressed, stamped & mailed is presumed to have been
              received
           o Public officers are presumed to do their duty
           o A person missing for 7 years is presumed to be dead
           o A child born to married woman is presumed to be the child of the
              woman‟s husband (social policy)
           o When a will is made but lost it is presumed to be revoked
           o A bailee who damages or losses goods in her possession is presumed to be
              negligent
   o Bailments
           o 1. evidence of delivery
           o 2. not returned (or returned in different state)
                    prima facie evidence of negligence
           o bailee has the evidence/better access to the proof
                   conclusive unless shown otherwise
                   can attack the underlying facts
                   can come forward with evidence of Not Negligence

Procedural Effect of a Presumption
   o if there is no rebuttal, tell the jury:
           o if you believe the basic facts  you MUST find the presumption
   o burden of production shifted to the opponent
           o burden of persuasion never shifted
Party can also attack the underlying facts
        this can prevent a presumption from ever coming into effect

Thayer effect
        some states  “bubble bursting”
        once rebuttal evidence has been introduced, do not tell jury anything about the
           presumption
               o the presumption disappears  the Thayer effect of presumptions
        Thayer effect  shifts the burden of production
Morgan‟s theory
    Shifts the burden of persuasion to the other side (opponent of the presumption)
    Presumption stays unless the jury is persuaded to the opposite
    Ex. jury must find receipt, unless they are persuaded by a preponderance of the
       evidence that the opponent did not receive it

FRE 301  uses the Thayer effect
   Only the burden of production gets shifted under FRE
FRE 302  under diversity, use the state law on presumption
NY  a mess

Rule 301  Presumptions in General in Civil Actions & Proceedings
    In all civil actions & proceedings not otherwise provided for by Act of Congress
       or by these rules, a presumption imposes on the party against whom it is directed
       the burden of going forward with evidence to rebut or meet the presumption, but
       does not shift to such party the burden of proof in the sense of the risk of
       nonpersuasion, which remains throughout the trial upon the party on whom it was
       originally cast

Rule 302  Applicability of State Law in Civil Actions & Proceedings
    In civil actions & proceedings, the effect of a presumption respecting a fact which
       is an element of a claim or defense as to which State law supplies the rule of
       decision is determined in accordance with State law

Res Ipsa Loquitor  some jurisdictions may have this as a presumption
    If jurisdiction creates a permissive inference (also known as a permissive
       presumption) of negligence [not a presumption]  no mandatory conclusion of
       negligence
    In NY  res ipsa is a permissive presumption

In criminal cases  defendant has a right to a jury trial
     No directed verdict against criminal defendant
     Cannot shift a burden onto the criminal defendant
     Permissive presumptions (cannot say the jury must find the presumption)
           o Must find every element beyond a reasonable doubt