EVIDENCE INTRO Federal Rules of Evidence: a. Process began in 1909, but modern rules came about during Watergate era. i. Thus, all common law until 1975. II. Why do we have FREs? a. Distrust of juries. b. Structure for trial – should not be free-for-all. c. To ensure accurate factfinding. d. Substantive policies – other things going on, and we’ll forsake truth based on fairness or other policies. III. Downsides? a. Possibility of accurate evidence not getting in and being missed – artificially limiting evidence at trial. b. Complex and technical – process may never end, given ability for review. IV. Scope of Direct – 611 (a) ----cross-examination should be limited to subject matter of direct examination and matters affecting the credibility of the witness. (b) Technically things can be beyond the scope of examination but our logic tells us let it in anyways-----there is some flexibility built into the rules> V. Objections and Offers of Proof: a. Must make objections specific enough for appellate court to know why (Rule 103: Rulings on Evidence: If D fails to object, he waives the issue for appeal unless there was a plain error. i. Plain error ---- if party fails to object, you don’t want to be in this category but the error is so blatant it needs to be reversed VI. Rule 104: Judge can use hearsay to decide admissibility ---- can use anything. I. A. RELEVANCY I. Rule 401 – Definition of ―Relevant Evidence‖ a. ―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 probably or less probable than it would be without the evidence. Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: a. ―Golden Rule #1‖ b. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, 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. II. 1 III. CA: a. CA § 210 – Relevant Evidence: i. ―Relevant Evidence‖ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.  CA 201: Relevant evidence has to be any disputed fact, under FRE it doesn’t have to be any disputed fact. IV. Two Step process:  STEP 1 (Logical Relevancy): IS this evidence Relevant to an issue in the case? (Rule 401) a. Relevance: i. Direct evidence – something that absolutely proves that which it is offered to prove. ii. Circumstantial evidence – probative, but not dispositive (makes more likely the thing it is offered to prove). 1. Examples – witnesses, fingerprints, DNA evidence, weapon, statements, motive. 2. FRE 401 does NOT distinguish between direct and circumstantial evidence b. How much tendency of proving does it have to have – four approaches (using fact that  is broke and charged w/ bank robbery). We use: i. Approach 4: Evidence makes the point to be proved more probable than it was w/o the evidence 1. This is MOST LENIENT – thus, admissible if evidence has ANY tendency to prove. 2. RULE: The standard is any relevancy  Old Chief v. United States: Facts: Johnny Lynn Old Chief charged w/ being convicted felon in possession of firearm. Prosecution wanted to admit evidence (name and details) of prior conviction (assault causing serious bodily injury). D wanted to stipulate to the prior felony conviction but not have name/details admitted into evidence. a. Issue – can a stipulation to a fact keep evidence of that fact out of court? b. Rule 401 – no requirement that the fact be in dispute. ii. CA 210 – Requires that the fact be in dispute. c. Analysis: i. Souter first asks – ―is the conviction relevant to the case?‖ Introducing name/details of prior tends to prove he was convicted of a prior felony. Stipulation does not affect relevance. ii. In CA, this stuff wouldn’t come it b/c not in dispute. V. Bottom Line of Relevance – you have to show that the evidence has any tendency to prove something that is material to the case. a. Extremely broad – as long as something has ANY tendency to prove a material issue. 2  STEP 2 (Pragmatic Relevancy) Is the probative value of the evidence substantially outweighed by unfair prejudice, confusion or delay? (Rule 403) i. Remember: Not all evidence is admissible, Evidence which is not relevant is not admissible (Rule 402) Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time: a. 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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence. b. Thus, even if relevant under 401, if prejudice substantially outweighs probative value, can be kept out. i. Favor admissibility, though – if factors equal. I State v. Chapple: c. Victim murdered by bullet to the head.  wanted to admit images of victim charred and dead and brain w/ bullet.  wanted to stipulate that victim killed by bullet shot by Dee, but that  was not Dee. d. Issue – whether  was or was not Dee. e. Holding – trial court erroneously admitted the images. f. Analysis: i. Problem here is that evidence was too inflammatory (when juries see images like that, they want to convict SOMEONE, so why not the ). ii. Fact that victim was killed by bullet to head was not at issue, and those images too prejudicial. g. Sometimes, brutality of murder is relevant – sometimes, ―gross‖ pictures are relevant. h. Back to Old Chief – what is effect of stipulation? i. Lessens probative value of the evidence. II. HYPOs a. Problem 2(d) – page 94: i.  wants to introduce evidence ’s wife had been to Battered Women’s clinic.  accused of murder, claims accident. ii. Analysis: 1. Relevance  yes, shows history of violence and attack. 2. Prejudicial  doesn’t mean he killed her later, and juries won’t like ―wife-beater‖. b. Problem 2(f) – page 95: i. Two women driving and get into accident. Myra says ―whoever screws up, her insurance pays. I’m sure my insurance will cover it. They’ll pay for what happened to your Porsche.‖ 3 ii. Problem – certain types of evidence that we see as important nevertheless gets excluded. 1. Now supposed to show that she has insurance (evidence of insurance to prove she acted negligently is inadmissible because of a federal law). iii. How to get in the statement  ―limiting instruction‖: Court limits the instruction to increase probative value and decrease prejudicial impact (but will juries regard the instruction)? III. Rule of Completeness: a. Problem 3: i. Airplane in military does touch and go… ii. ―Completeness‖ – this is fairness argument. 1. One side should not be able to take things out of context. 2. P cannot take one specific part of letter w/o putting it in context of other stuff. b. FRE 106 – Remainder of or Related Writings or Recorded Statements (―Rule of Completeness‖) i. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. ii. Can’t pick things out of context. 1. Example – when party only wants to use three words from letter to show guilt, but doesn’t want rest of letter that would completely negate guilt. B. HEARSAY I. FRE 801(c): ―Hearsay‖ is 1) A ―statement‖: FRE 801(a) (1) Oral or written; (2) Conduct if intended as an assertion by a person a. rejects Tatham b. No animals; generally no machines c. Involuntary groans or ouches are, by definition, not conscious assertions. 2) Made out of court --- Even if made by same person now in court 3) ―To prove the truth of the matter asserted‖ [See Step # 2] ----- What is statement being used to prove? i. If statement offered to prove truth of matter asserted, it is hearsay. ii. However, if statement offered for another (nonhearsay) purpose, it is not hearsay. 4 1. List of non-hearsay purposes: (1) Impeachment, (2) Verbal Acts, (3) Effect on Listener, (4) Verbal Object, (5) State of Mind, (6) Circumstantial Evidence of Memory or Belief, (7) Lie, (8) Willingness to say or omit. II. FRE 801(c) – ―Hearsay‖: a. ―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. i. Basically, out of court statement offered to prove the matter asserted. b. Examples: i. W1 – ―I saw Jim sell cocaine.‖ 1. This is ok b/c it’s person who saw Jim under oath, swearing to this (direct observation). ii. W2 – ―Sam told me he saw Jim sell cocaine.‖ 1. Not good b/c he’s not best person to give evidence. FRE 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 III.  Wright v. Doe d. Tatham: a. Wright is butler, and Tatham sues to recover stuff in Marsden’s estate. Tatham is heir, and wants to say that Marsden couldn’t convey all property b/c not competent to do so (basically that he had mentality of a child). Butler’s evidence is three letters which show he is competent enough to manage own business affairs (trying to say letters imply ―Dear Mr. (competent) Marsden). b. Issue – whether content of letter are evidence of fact to be proved in this case. c. Analysis: i. Court says that whether or not letter was originally intended to be an assertion, the fact that you are using is that way makes it hearsay. d. Modern RULE: ―Only hearsay if intended to be an assertion.‖  Cain v. George: d. Fire in hotel room and carbon monoxide kills s’ son. They want to say fire caused by faulty heater. s (owners) want to introduce evidence that none of prior guests ever complained. i. Under Parke (Wright) – this is hearsay b/c being used as assertion. ii. Under Rules – not hearsay b/c they didn’t not-complain to make an assertion. Just didn’t. 1. Most stuff we do in life we just do, not intending it as assertion.  United States v. Check: 5 IV. e. Cop went undercover to investigate D selling cocaine. Undercover cop used informant to get to D. Informant didn’t testify. However, cop, through own testimony, tried to sneak in informant’s testimony. f. Analysis: i. Not allowed (though happens all the time). g. Example – officer asked ―did you investigate bank robbery?‖ Answer – ―Yes, I spoke to the tellers.‖ Q – ―Did you focus your investigation on a single person?‖ ―Yes, the defendant.‖ i. Indirect hearsay b/c necessarily means that tellers told cop  robbed bank. Machines and Animals (likely not hearsay) a. Machines – can they be hearsay? i. Clock – is testimony to time hearsay? 1. No b/c clock not testifying, person is. Can’t cross a clock. ii. Concern w/ machines? 1. People operate them. iii. However, if something obtained b/c another persona input that into machine, it’s statement and thus hearsay. b. Animals – HYPO – bloodhound followed scent that led directly to perpetrator. Hearsay? i. No b/c only a person’s assertions are hearsay. ii. Also, can’t cross a dog. Non-Hearsay Purposes:----meaning the statement is not offered for the truth of the matter asserted. I. Starting Examples – issue is whether  is competent: a. W testifies that doctor told him that the  is incompetent: i. Hearsay b/c offering if for the truth of the matter asserted (to prove  incompetent). b. W testifies that ― told me his is a Martian.‖ i. Not offered to prove he is a Martian, but to prove incompetency. ii. Circumstantial evidence that  not in right mind. II. Impeachment: a. A statement is nonhearsay if it is used only to impeach the trial testimony of a witness. A witness’s testimony may be impeached by showing witness made contradictory statement out of court. The out-of-court statement is being used not to prove it was true, but to show that the defendant cannot tell the same story twice. b. Example – In murder trial, W, D’s brother, testifies D was home w/ him, watching football game, at time of murder. Prosecutors call X, W’s roommate, who testifies that on night of murder, W said, ―I can’t believe my brother didn’t come over to watch the football game today.‖ i. Analysis: 1. Out-of-court statement offered to impeach – to prove W didn’t testify truthfully. c. Note: 6 i. Jury only supposed to consider prior statement for impeachment purposes, not to show  actually was not w/ brother. ii. To ensure this, judge may give ―limiting instruction‖ on how the statement may be used. iii. If too confusing, judge may consider precluding evidence under 403. iv. If prior statement under oath or offered in CA, may also be offered for substantive purposes. d. HYPOs: i. In court, W testifies it was raining on day of accident. Out of court, witness said it was sunny. If out-of-court statement offered as evidence, hearsay? 1. If offered to prove it was sunny  HEARSAY. 2. If offered to prove guy cannot say same thing twice  nonhearsay purpose. e. Problem 3-C: Two cars crash, and in court, W says ―blue car ran red light.‖ Out of court, though, W said ―blue car had GREEEEEEN (v. Daimler Benz) light.‖ Hearsay? i. If used to show W can’t keep straight story  nonhearsay purpose (good). 1. Judge will have to give limiting instruction so jury only uses evidence as nonhearsay. ii. If used to prove blue car had green light  HEARSAY (bad). III. Verbal Acts: a. A statement is nonhearsay if the words have independent legal significance and what is important is that the words were said, even if they weren’t true. This nonhearsay provision often comes up in prosecution of crimes that can be proved by words alone, or where the use of words as a threat is a crucial element of the crime (i.e. solicitation, extortion, bookmaking, fraud, conspiracy, robbery, rape, etc.) It also arises in civil cases when the words have independent legal significance, such as contract cases, gift cases, harassment cases, and defamation cases. b. Example - D charged w/ robbery. Prosecution calls W to testify he heard D yell, ―Give me all the money or I’ll shoot.‖ i. Analysis: 1. What is important is that he made threat. c. HYPOs: i.  charged w/ extortion. Prosecutors call W to testify he saw letter from D stating ―If you don’t pay me $5 million, I’m going to blow up your business.‖ Hearsay? 1. No, only offered to show that the threat was made, not to prove threat’s truth. d. Problem 3-D: Gentleman’s club w/ undercover cop. Masseuse asks if he’s ―interested in a good time?‖ he says ―how much?‖ i. Not hearsay b/c whether or not she’s going to give him ―good time‖ irrelevant. 7 1. All we care about are the words being said (prostitution claim). ii. Response not hearsay either b/c question, thus no truth of matter asserted. 1. Offered to show negotiation and solicitation. e. Problem 3-E: Cartwright borrowed money from bank to lease Lord’s farm to grow corn. Bank had security interest in crop. Bank repossessed corn from farm and sold to Prager. Lord sues Prager and bank for conversion, claiming corn bank got was his share. Says Cartwright took him to area of farm and said ―this is your share of the corn.‖ i. This is offered to prove truth of matter asserted  HEARSAY. ii. However, could argue it’s offered to show recognition of the K  nonhearsay (Verbal Act). IV. Proof of Effect on the Listener or Reader: a. A statement is not hearsay if it is offered only to prove the effect of the statement on a listener or reader. Most often, these out-of-court statements are offered to show that D was put on notice or warned of something important to the case. Doesn’t matter whether what they were told was true. All that matters is that they were told it. b. Example - D charged w/ murder. At trial, D calls W to testify he heard X tell D outside of court that victim was looking for him and planned to shoot him down in the street like a dog. D wants to introduce that out-of-court statement to help prove he acted reasonably when he shot victim in self-D. i. Analysis: 1. If issue is whether D acted reasonably, doesn’t matter whether X telling truth or not. 2. The issue is what D heard and honestly and reasonably believed. a. Therefore, out-of-court statement being offered for nonhearsay purpose. c. HYPOs: i. D charged w/ murder when dog, Fifi, mauls neighbor to death. In defense,  calls W to testify that he heard dog trainer guarantee  that Fifi was gentlest dog on Earth. Hearsay? 1. No, b/c tends to show  thought dog was safe  no conscious disregard or intent. a. True even if trainer was fuck up and liar (completely wrong). b. D still reasonably thought dog safe  that was effect of trainer’s statement. d. Problem 3-F: Alford smells gas on job. Joe comes up and says ―I’m rep from gas co., can you show me the pipeline?‖ A takes J, who lights up smoke. Blown up. A wants to introduce J’s statement. i. Here, probably nonhearsay  A reasonably believed J from gas co (i.e. trustworthy). (showing Rx believe, not that he is really from gas company) 8 V. Verbal Object/Marker: a. A statement is nonhearsay if it is offered only as symbol or identifier on an object. b. Example – in robber case, victim testifies robber wore white shirt w/ ―Loyola Law School‖ on it.  calls cop to testify that when they saw  block from robbery, he had shirt w/ those words on it. i. Analysis: 1. Words on shirt have independent importance to case, even if  not Loyola student. c. Note – confusing thing here is that markers have both assertive and nonassertive aspect. i. Example – if prosecutors want to use ’s shirt to show he’s Loyola student  HEARSAY. ii. Party offering verbal object must demonstrate for court that it is for nonhearsay purpose. d. HYPOs: i.  charged w/ delivering cocaine. CI testifies that he went to airport to meet mand w/ words ―Koke Cain‖ on suitcase label. When he arrived at airport, CI saw suitcase like that near . 1. Nonhearsay  shows they found a guy w/ that suitcase (what they were looking for). ii. What if CI told to look for bag w/ name ―Justin Hamelik‖ and prosecutors want to prove that Justin Hamelik was owner of bag and thus cocaine? 1. HEARSAY  now, not only using it to identify, but to prove truth of matter asserted by nametag. iii. , Disney, sues  for stealing trade secrets.  claims he never had access to Disney’s secrets.  offers the testimony of one of ’s employees that she saw  w/ folder marked w/ photo of Mickey Mouse and words ―Trade Secrets – Property of Disney‖ Hearsay? 1. If trying to prove that he had secret access, then the words on folder would have to be true, so HEARSAY. 2. Also, if trying to prove that documents inside were trade secrets, HEARSAY. iv. IMP: Can get around the problem by getting another witness to say where they keep the folder. Circumstantial Evidence of State of Mind: a. A statement that circumstantially shows the state of mind of the declarant is nonhearsay and admissible, if the state of mind of the declarant is at issue in the case. b. Ex. – In will contest,  calls W to testify that when deceased signed will, he yelled ―I am Napoleon!‖ i. Analysis: 1. Statement nonhearsay b/c not offered to prove that deceased was really Napoleon. VI. 9 a. Offered to prove that he was incompetent to write/sign will. c. Note – this applies only to circumstantial evidence of state of mind. i. Direct evidence, such as deceased having said ―I’m crazy,‖ covered under 803(3). Direct could come in as hearsay w/ exception d. HYPOs: i.  sued for neg. after brakes on car fail and he hit another.  wants W to testify he heard  say day before accident ―I’d better get my brakes fixed before I kill someone. 1. Not offered to prove the truth (that he’d kill someone), but to prove that he thought his brakes were going south – on notice and acted negligently. ii.  suing cop for civil right violation.  claims cops arrested him b/c black. , cop, wants to call W to testify: ―Officer Joe is greatest officer in world. He tells me all the time that he hates racial profiling and can’t believe a cop would arrest someone based on skin color.‖ 1. Circumstantial evidence that he is not bigoted at all. 2. Not used to show that he would NEVER racially profile (or at least directly). iii. Mom suing Dad for custody of young kid. Mom thinks too traumatic to bring son into court to testify he’d rather be w/ her. Instead, she calls neighbor to say ―the little boy is always saying he is afraid of his Daddy and feels safe w/ his Mommy.‖ Hearsay? 1. Used to show how kid feels, not to show he is actually afraid of dad. iv. Problem 3-H –wife says husband treated wife cruelly and she leaves him one dollar. This is being offered to prove that he should get nothing, we are looking for evidence for her state of mind.  If she said I hate him ----that’s direct, than it would be hearsay. VII. Circumstantial Evidence of Memory or Belief: a. This category of nonhearsay is tricky. Bottom line – if a statement is being offered only to show that the declarant had a specific memory of event or circumstances, not that what they said about those events or circumstances was true, it is not hearsay. b. Example – In order to prove that young kidnapping victim actually was in ’s house, prosecutors offer an officer’s testimony that young victim described in detail the things written in his diary. i. Analysis: 1. Courts will allow this statement b/c it demonstrates that girl was actually in ’s apt., not that what was written in the diary was accurate or true. c. Note – tricky and narrow category. Only allowed when out-of-court declarant provides such specific details that can be linked to other evidence in the case 10 VIII. that the statement itself shows witness must have a specific belief or memory of the events. d. HYPOs: i. To prove she actually attended class, Barnadette offers testimony by Tania that after class, Bernadette remarked to Tania, ―Can you believe that polka-dot suit Levenson was wearing while she recited the Gettysburg Address?‖ 1. If offered to show Bernadette was in class  nonhearsay. 2. If offered to prove Levenson wearing horrendous polka-dot dress, NOT admissible. Lying: a. A statement is nonhearsay if it is introduced to show the falsity of what is being said, instead of the truth of what is being asserted. b. Example – to show that even wife recruited to cover for him when he robbed bank, prosecutors offer testimony of FBI agent that he asked wife where her husband was at time of the robbery and she falsely stated, ―He is in Denver.‖ i. Analysis: 1. Statement not offered by prosecutors to prove  in Denver, but to show he had wife covering for him. c. How is this different from ―Impeachment?‖ i. Impeachment – show that actual witness on stand not correct/believable. ii. Lying – used to show someone out-of-court. Different from impeachment because she has always been a liar d. Note: i. Many are troubled by this category b/c would be helpful to have wife on stand to cross-x as to why she stated her husband was in Denver. Perhaps she said so out of faulty memory instead of trying to cover. ii. Also, should note that this statement would be hearsay if offered by defense for its alibi. In that case, they would be using statement to prove truth of what it asserts; i.e,  was in Denver. e. HYPOs:. i. To prove Angel was spy, prosecutors introduce evidence that Angel told everyone she was afraid to leave the country. In fact, prosecution has travel records that show Angel flies all around world. Statements hearsay? 1. Probably not b/c not trying to prove truth of matter asserted outside of court. Willingness to Say or Omit: a. If a statement is being offered merely to show a person’s willingness to say something or not to say something, and not for the truth of what is being said, it is nonhearsay. b. Example – Bruno being charged w/ stealing airplane to use in drug conspiracy. Lawyer calls W to testify Bruno told him that ―I have an airplane stored at my house.‖ IX. 11 i. Analysis: 1. Bruno wants to introduce this statement to show that his very willingness to admit he had the plane indicates he had nothing to cover up. c. HYPOs: i. Sandy and Sara charged w/ illegally helping Christina, fugitive wanted for bank fraud. They claim they didn’t know she was wanted. S and S introduce testimony from another friend that they had constantly told her they should check w/ local gov’t agencies to see if they can help Christina find a place to stay. Hearsay? 1. No, S and S trying to show that if they thought Christina was fugitive, they wouldn’t have called gov’t agencies when looking for place for Christina to stay. ii.  charged w/ kidnapping, and wants to call W to testify  and victim had dinner that night. 1.  offering this to show he was in contact w/ victim and has nothing to hide. SUPPLEMENTAL HEARSAY HANDOUT ―BACK TO BASICS‖ Basic Rule The hearsay rule is designed to prohibit a witness from presenting second-hand information to the court. More precisely, the rule prohibits a witness from testifying to an out-of-court statement by another person if that statement is being offered to prove the truth of what the other person was intentionally asserting. Examples: 1. 2. 3. 4. Witness testifies, “I heard John say Mary robbed the bank.” Witness testifies, “Julie told me Mike ran the red light.” Witness testifies, “I heard from Max that Saman paid $ 18,000 for her car.” Witness testifies, “I read in Sabrina’s diary that she saw Paria hit Ezra’s car.” Multiple Hearsay---IMP Sometimes there can be multiple layers of hearsay. When there is, there must be an exception or nonhearsay definition for each level of the hearsay for the statement to be admissible. 12 Examples: 1. Witness testifies, “Kathy told me that Jeremy had told her that Maxwell had run the red light.” 2. Witness testifies, “Kathy told me that Jeremy had sent her a letter describing how Maxwell had run the red light.” Intended Assertions Under the modern approach to hearsay, only statements made out of court that are intended to be assertions (i.e., intended to relate what happened or what someone was told) are considered hearsay. Thus, conduct by a person that is not intended to be an assertion is not hearsay. Examples: 1. 2. Witness testifies, “I saw Esther open her umbrella.” Witness testifies, “The doctor put Levenson on anti-psychotic medication.” Words that Do Not Intend Assertion Likewise, if a person uses words outside the courtroom, but they are not intended to make an assertion, they are not hearsay. Example: 1. Witness testifies, “Stephen said `hi’ to Shannon.” Compare: Witness testifies, “Stephen said to Shanon: `Hi, it is good to see you again,’ Note: Requests, commands, questions may or may not be assertions. For example, a question is not hearsay if it is not intended to convey anything about the speaker’s knowledge. E.g., ―Hi, how are you?‖ However, a question can be hearsay if it does intentionally assert information, such as ―Hi, are you feeling better?‖ The latter question conveys that the speaker believed or observed that the person had been feeling ill. Multiple Assertions A single verbal statement may contain many different factual assertions. If offered to prove the truth of those assertions, the statement is hearsay. Example: 13 Assume the teacher says to the students, “Tomorrow we are going to have a pop quiz because none of you have done the reading and this is tough material.” This verbal statement makes three assertions: 1. 2. 3. None of the students did the reading The material is tough The teacher intends to give a pop quiz If offered to prove any of these factual assertions, the statement is hearsay. Nonhearsay Purposes Sometimes, statements are offered, not because their assertions are necessarily true, but simply because they were said. If a statement has relevance to a case simply because it was said, it is nonhearsay. Note: Sometimes, a statement may be important simply because it was said and because of the truth of the matter it asserts. In these situations, the judge has to consider whether it will be too confusing to let the juror hear the statement but instruct them on how to properly use the statement. If it will be too confusing, the court may exclude the statement under Rule 403. Examples: 1. Lauren is testifying in a forgery case. The issue is who signed Derek’s name to a letter. She testifies, “John signed Derek’s name to the letter.” On cross-examination, the lawyer asks, “Isn’t it true that you told my investigator that Jennifer signed Derek’s name to the letter.” [Impeachment] 2. Heidi is testifying as an undercover decoy officer in a prostitution solicitation case. She testifies, “I told the defendant, `Give me $20 and I’ll give you a good time.’” [Verbal Act – These words have independent legal significance even if Heidi never planned to give the defendant a good time.] 3. Tamara sues for negligence when she falls on the slippery floor at the market. The defense claims that Tamara was on notice that the floor was wet. A witness testifies, “I warned her the floor was wet and there was a big sign that said, `Danger - Wet Floor.’” 14 [Effect on the listener] 4. Barry is charged with assault. His victim claims that she does not know the name of her assailant, but that she remembered he was wearing a hat that said, “Number One Dodger’s Fan.” Defendant was arrested near the site of the assault with a hat that said, “Number One Dodger’s Fan.” [Verbal Object/ Verbal Marker] Notes Regarding Verbal Markers: This area nonhearsay purpose may seem a little tricky because sometimes the markers are being used for the truth of what they assert. If so, they are being used for a hearsay purpose. Hearsay Example: Doug Dealer is being prosecuted for possession of cocaine. The police find cocaine in a duffle bag with the name, “Doug Dealer” on it. That is the only evidence they have that the bag belonged to the defendant. In this situation, prosecutors would be offering the name on the bag for the truth of the matter asserted; i.e., that the bag and its contents belonged to Doug Dealer. Compare Nonhearsay Example: Witness testifies that he delivered the drugs to the defendant in a bag marked, “Doug Dealer.” He then identifies the bag found on the defendant as the bag he delivered with the drugs. Here, the markings are just being used to identify the bag, not as a separate assertion as to whom the bag belonged. A.―Not Hearsay‖ and DECLARANT AVAILABLE – FRE 801(d)(1):  IMP: they are letting this in for substantive evidence not for impeachment. I. FRE 801(d)(1) – Statement that are not hearsay fall into three types (in this section): a. Prior Inconsistent Statements (FRE 801(d)(1)(A)). b. Prior Consistent Statements (FRE 801(d)(1)(B)). c. Prior identifications (FRE 801(d)(1)(C)). Prior Inconsistent Statements – FRE 801(d)(1)(A): a. Requirements: i. Subject to Cross-X concerning the statement ii. Prior statement is inconsistent. iii. Prior statement made under Oath, iv. At trial, hearing, or prior proceeding (or in a deposition). 15 II.  Prior proceedings include prior trial, depositions, agency hearings, grand jury, preliminary hearing, affidavits (courts are split) b. CA § 1235 – all prior inconsistent statements are admissible as substantive evidence even if not under oath or in prior proceeding. c. Example -  charged w/ spousal abuse. At trial, wife scares and testifies that someone else, instead of husband, hit her. Prosecution needs evidence he hit her, though. Prosecutor has police file that wife told cops (before trial) that it was husband. Can Prosecution get it as substantive evidence? i. FREs - no, b/c it’s not under oath. ii. CA § 1235 – just has to be inconsistent, so it’s in. d. What about a witness who ―can’t remember‖ – it’s not inconsistent b/c doesn’t remember. i. For feigned memory loss (lying)---- we allow it in. (It is considered inconsistent since cant be cross-X) ii. If memory loss is real, then inadmissible. Special Rules Regarding PRIOR INCONSISTENT STATEMENTS Federal Approach FRE 801 (d)(1)(A) Prior Statement Under Oath in proceeding (Admissible for Impeachment & Substantive Evidence) Other prior Statements (Only Admissible for Impeachment) CA Approach 1235 (Prior and Other Prior Stmts Admissible for all purposes) Prior Consistent Statements – FRE 801(d)(1)(B): Rule 801 (D) (1) (B) --- A statement is not hearsay if (1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive a. Requirements: i. Witness subject to cross-X, ii. Prior statement is consistent, iii. Offered To Rebut claim of recent fabrication (motive to fabricate?).  Rule: Tome Case: Prior consistent statements must be used before motive to fabricate. Judge decides when the motive to fabricate might have occurred.  PCSs used to rehabilitate an impeached witness (generally). III. IV. (2) CA RULE: § 1236: Prior consistent statements are admissible so long as they comply with §791. §791: Prior consistent statement only admissible if:  Inconsistent statement already admitted to attack credibility; or  Prior consistent statement made before motive to fabricate. Prior Identifications – FRE 801(d)(1)(C): V. 16 a. Requirements: i. Witness subject to cross-X, ii. Statement of Identification: Ex: Line-up, Photo-spread, Mug-shot, Composite Sketch (maybe)? b. Example – Victim (teller) interviewed after robbery and IDs  from line-up. At trial, victim no longer remembers what robber looked like. He does, however, remember identifying someone from line-up. Prosecutor wants to put on FBI agent to testify that victim IDed  from the line-up. Admissible? i. Probably – earlier statement more reliable b/c line-up closer to time of robbery. (1) Out of court id’s can be more reliable actually than in-court id’s d) State v. Mota case ---RULE: composite sketches are covered by this exception and allowed under the rules.  Witness available to cross-x as to why composite sketch represents his ID of defendant Additional Thoughts  Why this rule if you could use the verbal marker? Easier  Voice identifications okay  Subject to cross-x includes witnesses with faulty memory (Owens)  Doesn’t matter if in-court id is wrong  Alt approach: Verbal markers B. Admissions – Individual FRE 801(d)(2): Remember there are 5 kinds of Admissions in Total: (1) Individuals admissions (2) Adoptive/tacit admissions (3) Authorized admissions (4) Employee/ Agent Admissions (5) Co-conspirator statement I. Individual Admission – Statement offered against a party. Party’s: 1. Own statement 2. Adopted Statement 3. Authorized Statement 4. Employee or agent’s statement 5. Co-conspirator statement a. Example – John sues Bill for breaking arm. Bill told friend he broke John’s arm. John calls friend. i. This is plain ole admission. Same would be true if it’s written statement. FRE 801(d)(2)(A) – Personal Admissions: a. Requirements: i. Statement made by a party, II. 17 ii. Being used/ offered against THAT party. (MOST IMP)  Hypo: Defendant charged with bank robbery. When caught by the police, he says, ―I didn’t do it.‖ Defendant wants to introduce statement at trial. HEARSAY: Not offered against party b. CA - § 1220 (same). c. Non-requirements: i. First-hand knowledge. Hypo 1: Repair guy at autoshop uses blowtorch and blows up shop. Martin sues for loss of truck. Owner told insurance adjuster ―The fire stated in the paint shed when Dugan put a flaming welding torch on the ground too close to the fumes.‖ M calls adjuster. a. This is okay, even though Owner has no firsthand knowledge. ii. Need not be statement against interest when said. 1. See example above – Owner’s statement way against interest, though good for him at time for insurance purposes. iii. Need not be specific statement 1. ―It was my fault‖ instead of ―I ran the light‖ is okay. iv. Need not be in specific form (oral, written or conduct statements qualify) 1. Example – Parker scuffles w/ Whalen, and Whalen pleads guilty to assault. Parker sues him in civil trial and wants to use guilty plea. a. This is okay b/c guilty pleas can be used as admission. b. However, no lo contendre pleas are not admissions. . c. Do These Factors matter? (1) Drunk?-----Goes to weight of statement (2) Severely injured or hospitalized? ---- Goes to weight of statement (3) Asleep or unconscious? --- Usually inadmissible (4) Minor? ---Goes to weight of statement; if too young, argue 403 d. ―Spillover Effect‖ – Napton works for Ace and runs over O’Brien, resulting in loss of job. 6 monthslater, Napton tells O’Brien that brakes in truck failed and he was speeding. O’Brian sues Napton and Ace. Analysis: – when there are 2 s, and  has admission against 1, and part of it can be used against 2, is it admissible? Result: Not an admission by Ace b/c Ace didn’t say it.  Bruton v. United States: Facts: Bruton and Evans charged w/ robbery. W wants to use Evans’s admission (―Bruton and I did it.‖) against Bruton. Issue – can Evans’ admission be used against Bruton? 1. Will a limiting instruction work? Rule – Bruton Rule: Spillover confessions are not admissible against other parties. 18 Analysis: Trial – limiting instruction that it is only admission against Evans, not Bruton. Court here say limiting instruction not good enough. ii. What could/should happen? 1. Sever trial – make 2 trials from the one. 2. Two juries. 3. Redact – yank from the statement anything implicating Bruton.  Criminal Cases (―Bruton‖)  Cannot use one D’s confession against another D, even if a special jury instruction is given  Might be able to redact statement  Creates Confrontation Clause issue  Civil Cases Admission can only be used against person who said it. E.g., Two cars run stop sign and hit green car. D1 says, ―I ran the stop sign b/c I saw D2 go.‖ Can only use against D1 Limiting instruction suffice e. Does Bruton apply in civil cases? i. This doesn’t deal w/ Confrontation Clause, so court can simply give limiting instruction. f. What about admissions against the gov’t? i. In criminal cases, a gov’t employee’s statement is not an admission against the gov’t. ii. May be different in civil cases. FRE 801(d)(2)(B) – Adoption/Tacit Admissions: ―A statement is not hearsay if the statement is offered against a party and is (B) a statement of which the party has manifested an adoption or belief in its truth‖ a. Requirements: i. Statement offered against a party ii. That party has adopted it or manifested belief of its truth. b. Example: i. ―Why did you hit my car?‖  doesn’t answer.  United States v. Hoosier: Facts: Crook sitting with girlfriend and 3rd party; Girlfriend says, in front of crook, ―he did real well when he robbed that bank.‖ Crook says nothing, is this an Adoptive Admission?  RULE: ―Under the total circumstances, would probable human behavior have been to promptly deny the statement?‖ III. Analysis: here, if he didn’t do it, he would have denied it somehow. c. What factors do we look to determine if party should have denied the statements? 19 1. Did party not understand the statement or its significance? 2. Is there some physical or psychological factor explaining the lack of reply? 3. Was the speaker someone whom the party would likely ignore? 4. Did the silence come in response to Miranda warnings? d. Adoptive Admissions in Criminal Cases  Before Miranda rights  Jenkins v. Anderson----- if statement (tacit admission) comes before warnings, then can be used.  Silence admissible as admission  After Miranda rights  Doyle v. Ohio  Post-Miranda silence is inadmissible e. Admissions in judicial proceedings: i. Pleadings = admissions ii. Interrogatories = admissions iii. Responses to request to admit = admissions only for that action IV. FRE 801(d)(2)(C) – Authorized Admissions; Admissions by Agents: a. Requirements: i. Authorized agent statement, ii. Offered against the party. b. CA - § 1222 – same. c. Issue will generally be ―who is an agent.‖ i. Attorneys, real estate brokers, talent agents, corporate president d. Difference b/t this and ―representative‖ of personal admissions? i. There, person has to be like boss and speak for everyone just by their status. ii. Agent, though, is someone authorized to speak for you. FRE 801(d)(2)(D) – Admissions by Employees (and Agents): a. Requirements: i. Statement offered against a party. ii. Statement is by a party’s agent or servant. a. Who is an Agent or Servant? 1) Employees, Independent contractors (not unless party adopts statements), Government employees (generally do NOT constitute admissions but modern push to allow it) iii. Concerning a matter w/in scope of agency or employment. iv. Made during existence of the relationship (course of employment). b. HYPO example: Truck driver making delivery for ABC Co. Boss tells him to use shortcut by driving wrong way down alley. He does this and hits Sue. When he gets out, he says ―I’m sorry, I did it b/c I was trying to make my delivery.‖ If suing only driver, can use it against him. However, what about suit against ABC? V. 20  This would be admissible (satisfies elements above). i. What if driver says, though, ―this company doesn’t need this. They’re already cheating on there taxes.‖  This is not a matter concerning the scope of employment.  Mahlandt v. Wild Canid Survival & Research Center: Facts: Wolf bites child, court does not allow following evidence below. Why did the court keep Poo’s statement out? i. They reasoned that he took his work home with him, but the judge will decide the scope of your employment. Employees can bind the company when they are doing something related to employment  USE RULE 403 to balance probative value ii. Analysis - can employee’s statements be used against the center? 1. Note by Poos: a. Definitely could be used against Poos. b. Also satisfies elements of Employee Admissions, so good. 2. Poos statement to Sexton: a. Doesn’t matter that he’s talking to someone in the company. b. Could be talking to anyone  comes in. 3. Board Minutes: a. This can be used as personal admission against company, but not Poos. FRE 801(d)(2)(E) – Co-conspirator Statements: a. Requirements: i. Co-conspirator ii. Statement made during course of the conspiracy iii. Statement made in furtherance of the conspiracy. How prove that statement made ―during course‖ of and ―in furtherance of‖ conspiracy?  Can use statement, but statement alone is not enough  Special Requirements:  Proving statement made as part of ―conspiracy‖  Non-Requirements  Firsthand knowledge  Charging conspiracy  Bourjaily v. United States: There is statement made by co-conspirator, but only evidence of conspiracy is that statement. Issue – Defense said its bootstrapping you are using the statement to prove the conspiracy. D said you need independent evidence, court VI. 21 said no because that was before federal rules. Can it be the only evidence to establish admissibility? Analysis: You can take the statement into account but you need a little bit more. Statement alone is not enough (FRE 801(d)(2)) b. Distinguish from co-D’s confessions:  Bruton problem  statements after conspiracy are considered like in Bruton i. Here, this is statement in course and scope of (IMP) conspiracy. C. FRE 803 – Hearsay Exceptions, Availability of Declarant Immaterial: I. FRE 803(1) – Present Sense Impression: a. Rule – A Statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. i. Requirements - Levenson: 1. Timing: Made while event or condition occurring or immediately thereafter (Diff from State) 2. Content: Describing event or condition b. CA § 1241 – Evidence of a statement is not made inadmissible by the hearsay rule if the statement: i. Is offered to explain, qualify, or make understandable conduct of the declarant, and ii. Was made while the declarant was engaged in such conduct. c. Differences: i. Federal rule broader (covers describing events/conditions which may be occurring to others). ii. State rule limited to describing conduct in which declarant is engaged. iii. Fed rule includes observations made ―immediately thereafter‖: 1. CA prefers contemporaneous statements.  Nutall v. Reading Co. Facts: Widow suing Employer for forcing Mr. Nuttall to work. Issue: Widow wants to introduce, Affidavits re: What D said at work and Wife’s testimony re: phone call. Does this come in under Present Sense Impression? Analysis: If used to show ―Effect on the Listener‖ to prove employer notice, nonhearsay. But for substance, comes in under PSI to show employer forced him to work. ))))More Analysis: She couldn’t get in their affidavits because its double hearsay, employees didn’t want to testify and no employee exception since we don’t know if they were made at work and no admissions because we don’t know if they were authorized to speak on behalf of employer.  Husband says on phone, George, why are you forcing me to come to work the way I feel?‖ She heard the statements as they occurred.  Main question is ―was it immediate enough so that we don’t think it was fabricated‖. II. FRE 803(2) – Excited Utterance: a. Rule – 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. i. Requirements - Levenson: 22 1. Startling event or condition 2. While Declarant is Under stress of event (Timing not determinative)  Anything ―relating‖ to the event.  No time requirement b. CA § 1240 – Spontaneous Statement: i. Evidence of a statement is not made inadmissible by the hearsay rule if the statement: 1. Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant, and 2. Was made spontaneously while the declarant was under the stress of excitement caused by such perception. ii. Levenson – the statements must be about the event in question, not just ―related‖. c. Difference: i. Made spontaneously while under the stress of the excitement (Probably not Iron Shell)  United States v. Iron Shell: Facts: Iron Shell drunk and allegedly raped 9 yr old. About hour later, W questioned girl and said she first appeared calm and unexited, but the said she would nervous and scared (W asked her ―What happened?‖ and she described). Prosecutor wants testimony of girl to come in through W (officer). Issue – does girl’s statement satisfy ―Excited Utterance‖ exception? Analysis: Not contemporaneous, so not ―Present Sense Impression‖. Court held that even though statements were an hour later, they were admissible.  There are different ways people can show they are under stress of an event. Some will appear in shock, some will cry, etc. Though timing is an indicator to stress of event, not dispositive (like PSI). d. List of factors to determine excited utterance?  Lapse of time (45 minutes)  Response to inquiry?------ is she being spontaneous?  Age of declarant  Physical and mental condition  Characteristics of event  Subject matter of statement  Not all victims react alike  Manner of speaking (short bursts)  Level of stress e. Typical Cases: Victim just assaulted, witnessed car accident, emergency health issues, calls for help. DIFFERENCE BETWEEN PSI & EXCITED UTTERANCE 23  Present Sense Impression  Timing more restrictive  Content of statement needs to be describing the event or condition  Excited Utterances  Need not be contemporaneous so long as declarant still excited  Any statement related to event III. FRE 803(3) – Then Existing Mental, Emotional, or Physical Condition: The following is not excluded by the hearsay rule: ―A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.‖ a. Requirements: i. Statement Must describe emotion, state of mind, or physical condition. (Cannot be backward looking (―I didn’t intend…‖ ―I didn’t realize I was hurting him‖, ―I only wanted to help him‖ – not good. ―I feel…‖ – good). ii. Declarant’s state of mind is at issue a) Extortion case: Victim’s state of mind b) Murder case: Defendants’ state of mind  D’s inculpatory statements:  E.g., ―I’m going to kill her.‖ (state-of-mind or admission)  E.g., ―I meant to kill her.‖ (admission)  D’s exculpatory statements:  E.g., ―I would never hurt her.‖ (state-of-mind)  E.g., ―I never intended to hurt her.‖ (hearsay) Problems with Existing State of Mind Exception:  Fact-laden statements: ―I’m scared of John because he has killed lots of people.‖ b. CA § 1251 – allows for backward looking state of mind statements, yet only when declarant is unavailable. i. CA follows Hillmon. ii. What is the issue in the case? d. Four State of Mind Examples: (1) Then-existing physical condition • ―I’m tired‖ (2) Then-existing mental or emotional condition • ―I’m scared‖ or ―I’m angry‖ (3) State of mind to prove future conduct • ―I’m going to the bank.‖ (4) Beliefs to show terms of a will • ―I’m leaving him nothing because he abused me.‖ 24 • Allow backward looking statements in a will scenario  Mutual Life Insurance Co. v. Hillmon: Facts: Was dead body Hillmon or Walter (murdered by Hillman)? Analysis – are Walters letters admissible to show his future conduct? Court holds they should have come in under state of mind b/c if someone plans to do something, they are more likely to do it. But we’re using Walters’ state of mind to show where Hillmon was going? Okay? 1. It’s open as to whether this can be used to prove Hillmon’s doings or only Walters’.  IMP: The exception embodied in the Hillmon Doctrine provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform may be shown. The doctrine does not require that the state of mind of declarant be an actual issue in the case.  United States v. Pheaster: Larry tells date: ―I’m meeting Angelo in the parking lot to pick up marijuana.‖Issue – can this statement be used to show what Angelo did? iii. Rule – one person’s statement can be admitted to show what another was going to do. iv. Analysis: 1. We can definitely use this to show what the guy was going to to. 2. Some jdxs allow it and follow Pheaster. The purpose of Pheaster is to really show that defendant met victim. a. Prof. will tell us whether or not we’re in a Pheaster jdx.  Book mentions Sam Sheppard case (The Fugitive) – issue was that before she died, she said ―Dr. Sheppard has poisoned me.‖ Is this admissible under State of Mind? (i) No, b/c not an issue (not extortion, self-Defense, suicide, etc. – victim’s mental state not an issue).  Problem 4K --- Weeks before ―I am afraid Donald is going to kill me‖ ------that victim’s state of mind is not at issue so it doesn’t come in 1) Days before: ― I am going to Denver to be w/ my mom‖ --- if you show her actions were imp than its relevant 2) Months before: Went to battered woman’s shelter‖ ----its not a statement, just an action so you can get it in. FRE 803(4) – Statement for Purposes of Medical Diagnosis or Treatment: Statements made for purposes of medical diagnosis or treatment a. Requirements: i. Purpose of medical diagnosis or treatment ii. Describes medical history, symptoms, pain, cause iii. Reasonably pertinent to diagnosis or treatment IV. 25 i. Anything ―reasonably pertinent.‖ 1. Thus, can describe how it happened as long as reasonably related. b. CA – no separate exception (use State of Mind). i. CA – does have § 1253 – child victims under 12  can get in cause of injuries. c. Statement can be made through 3rd party – victim can say something to EMT, who relays to doctor. d. Made by 3rd party – mother instead of victim tells about rape. FRE 803(5) – Past Recorded Recollections: a. Requirements – i. A memorandum or record ii. That concerns a matter about which the witness once had direct knowledge. iii. The witness must now have no current recollection. iv. Was made and adopted when memory was fresh and accurately reflects knowledge >>>>>Limitations: Read the record, but don’t admit unless offered by adverse party V.  Ohio v. Scott: Facts: Scott shot someone and at police. Went into theater and told Witness what happened. She wrote it down the next day. Analysis – is the next day’s recording when the event is still ―reasonably fresh‖ in memory? 1. There is no specific time limit – very fact specific. Rationale – the statement was made close to the time of the incident and recorded. FRE 803(6) – Business Records: a. Requirements: 1. Any form of record ----covers computer records, drug ledgers (doesn’t have to be a legitimate business) 2. All types of events, conditions, opinions or diagnoses 3. Made at or near time of event 4. Made by, or from person having knowledge -----the person who actually inputs have to get info from person who has 1st hand knowledge 5. Made as regular course of business activity ----- most IMP part 6. Kept as regular course of business activity ---- IMP 7. Testified to by custodian of records or other qualified witness 8. Unless circumstances indicate lack of trustworthiness VI. Petrocelli v. Gallison: Guy had operation, something seemed wrong, so he goes to another Dr. for 2nd operation. That Dr. files report saying nerve in P’s leg had been severed in 1st surgery. Issue – is this a business record? 1. Court said it was unclear as to whether this was observation or mere impression. 26 2. Couldn’t tell if Dr. got info from own examination or did P tell him? Analysis: Dr. keeps records during ordinary course of business (803(6)): But not admissible b/c not clear whether patient told him or Dr observed it. a. Must have exception for patient telling him (803(4)).  Norcon, Inc. v. Kotowski: Company is hired to do investigation of Exxon. There is report that someone wants to introduce. Its double hearsay (informant heard stuff and told investigator who wrote report, so it’s hearsay as to the report itself as well as informant). ii. Analysis – can this come in under 803(6)? 1. This is admissible – there are exceptions for each step of the information: a. 801(d)(2) – admission by an employee (for informant). b. 803(6) – for the report. 2. But this isn’t regularly kept record, is it? a. It is if you consider it a regular report for any investigation (I think). FRE 803(8) – Public Records and Reports: Setting Forth Records, reports, statements, or data, in any form: a. Requirements: i. Setting forth: 1. The activities of the office or agency (like business records). 2. Matters observed pursuant to duty of law; duty to report; except, no police reports in criminal cases (6th Amendment (confrontation) concern – can’t try case on police reports) 3. Factual findings from an investigation, but only in civil cases or against the Government in criminal cases ii. Unless there is reason to believe the report is untrustworthy. VII. b. CA § 1280 – Record by public employee i. No express limitation on police reports, but CA courts say they are ALWAYS untrustworthy.  Baker v. Elcona Homes Corp: Facts: 5 teens in Plymouth collide w/ big rig. Kids injured, cop arrives 6 minutes later. Took report, and D trying to get it in (P doesn’t want it because police report said D had the right of way) Issue – what constitutes a factual finding, and what parts of this report come in? a. Analysis: 1. Description of scene – no problem (direct observation, duty to report). 2. Opinion as to right of way: a. Court says this is factual finding w/in meaning of 803(8)(C) (since it’s a civil case and the investigation was made pursuant to authority granted by law) 27 b. Rule says allowed unless it was untrustworthy –to check if untrustworthy look into i. Timeliness of observations: ii. Special skill/experience of observer. c. United States v. Oates --- Remember in criminal cases factual findings from investigations are not allowed. d. Examples of Factual Finding in Public Records: Accident report findings [Baker v. Elcona] FAA report on cause of plane crash HEW findings of racial discrimination in schools FDA findings on cause of epidemic Limitations: Only in civil cases; in criminal cases when used against the government. MISCELLANEOUS EXCEPTIONS – all under 803: a. (9) – Vital Statistics – records/data compilations of statistics (births, deaths, marriages, etc). b. (10) – Absence of Public Record or Entry. c. (11) – Records of Religious Organizations. d. (12) – Marriage, Baptismal, and Similar Certificates (no one will lie before Gd). e. (13) – Family Records (headstones, etc – can be used to determine when g-ma lived and died). f. (14) – Public Office Property Records (Title/Lien/Etc. documents). g. (15) – Statement in Documents Affecting an Interest in Property (NOT IN HER NOTES – ignore). h. (16) – Ancient Documents (a document – i.e. newspaper story – more than 20 years old). i. If something is old enough, more reliable (unchallenged after that long, it comes in). i. (17) – Market Reports, Commercial Publications. j. (18) – Learned Treatises (can read into record: don’t have to use hypotheticals). Requirements: (1) Used by expert (2) Reliable authority i. HYPO – election office does study on reliability of ballots. In report, they reach conclusion as to which are reliable and which are not  comes in under this. ii. Cant use the actual treatise though, just can be read k. (19) – Reputation Concerning Family History (reputation in community – if truly reputation). l. (20) – Reputations Regarding Boundaries. m. (21) – Reputations as to Character. n. (22) – Judgments of Convictions (piece of paper that goes into Court record saying you were guilty.) VIII. 28 i. Instead of having to bring in the jurors from that case. o. (23) – Judgment as to Personal, Family, or General History, or Boundaries. 29 FRE 804 – Hearsay Exceptions, Declarant Unavailable: I. ―Unavailability‖: a. Different Types of Unavailability i. Claim of Privilege: 1. 5th Amendment right against self-incrimination 2. Dr/Patient, Attorney/Client, etc. ii. Refusal to Testify: 1. Example – prisoner is witness in prison murder case  won’t testify for fear of similar death. iii. Lack of Memory as to the Subject Matter: 1. Unlike 803 exceptions, this requires more than person just being there. 2. Unless person can actually recall the subject of their questioning  unavailable. iv. Death, Illness, Infirmity: 1. Temporary illnesses probably not good enough. 2. Judge decides this based on: a. How important testimony is. b. How long person will be ―unavailable‖ c. Will case move forward w/o testimony? 3. Could also be unavailable if Dr. says testifying will cause heart attack. v. Unavoidable Absences: 1. No ―service‖ available. 2. Can’t reach person – can’t just call number and tell court it is disconnected, though. 3. Must subpoena witnesses before you can use this. b. Note – end of 804: Not ―unavailable‖ if proponent of statement procures the absence of the witness i. If you procure the witness’s absence (i.e. you kill him and claim unavailability due to death), these exceptions are not available to you.  Barber v. Page: Barber and Woods tried for armed robbery. Woods testified at prelim,  didn’t cross-x.  wants prelim hearing testimony instead of Woods, who is in federal prison in another state. ii. Rule – being in federal prison does not mean that you are unavailable. iii. Holding: They must get the prisoner so he can testify.  How do we distinguish Mancusi v. Stubbs in the note cases? In Mancusi the declarant is out of the country. II. FRE 804(b)(1) – Former Testimony: a. Requirements: i. Witness unavailable. ii. Prior proceeding/depo. 30 iii. Against same party who had previous opportunity/similar motive to cross/direct examine, OR In CIVIL proceeding, ―predecessor in interest‖ with opportunity and simlar motive to cross-x. ****Doesn’t work in criminal cases  CA Section 1929: ―Evidence of former testimony is not made inadmissible by the hearsay rule if:  The declarant is unavailable as a witness;  The former testimony is offered in a civil action; and  The issue is such that the party to the action in which the former testimony was given had the right and opportunity to cross-x the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing. b. Example – Fred sues Greg for car crash. Prior to trial, Fred calls Kerry as witness in depo and both sides’ counsel present. At trial, Kerry disappears. Fred wants to use depo  can he? i. Witness unavailable, was prior proceeding, and it’s against same party who had opportunity to cross. c. Differences b/t crim and civil: i. Some types of proceedings don’t allow cross  Grand Jury ( can’t cross, so inadmissible). ii. However, what if prosecutor puts witness in Grand Jury who says things in favor of D. At trial, witness unavailable, and D wants to put testimony in at trial. 1. D can argue prosecution had opportunity/motive to examine  should be admissible. 2. Solerno Case: Hypothetically, this is acceptable. Court, though, held gov’t didn’t have proper motive  not proper use of Grand Jury. a. So, Grand Jury testimony NOT admissible, but preliminary hearing IS.  Biggest Difference: In CIVIL case, could be used against same party, or another party if ―predecessor in interest‖. iii. As long as person who DID HAVE opportunity/motive to cross did so. d. Lloyd v. American Export Lines, Inc.: Alvarez and Lloyd brawl. 1st proceeding is Coast Guard hearing against both Lloyd and Alvarez to determine who threw down first (blame each other). Alvarez’s lawyer present at this proceeding (but it’s not hearing, so he couldn’t cross Lloyd but CG could have). At trial (actually should be Alvarez (not Lloyd) v. American Export), D wants to use Lloyd’s testimony from CG hearing (he’s unavailable). Alvarez’s argument is there was no motive to cross-X. i. Issue – what is a ―predecessor in interest‖? ii. Analysis: 31 1. Aldisert (judge) says that all this means is the person at the prior proceeding had similar motive/opportunity/interest to cross. a. So, you look at the opportunity and motive of prior party, and see if they are similar to the party now. Holding: Here, he says that both CG (interest is in safe workings of merchant marines) and Alvarez wanted to go after Lloyd if guilty, so they both had same motive, and CG had opportunity. Concurrence Opinion: 1. Says ―predecessor in interest‖ must have privity situation. 2. If this is the case, can Lloyd’s testimony be used? a. No, as Alvarez does not have a privity relationship w/ Coast Guard. iii. What is the split? 1. Majority  follow Aldisert (CA does as well). a. Thus, only need similar motive/opportunity. 2. Minority  wants some privity.  Note 2 on page 317: In the criminal case it was P v. JB, the D will rip into prosecution witnesses E + B. In the civil case the insurance company wants to use the testimony of E +B against JB + JC. There is no problem for JB since he had a chance to cross-examine in the criminal case, JC now wants to cross-examine though. Should he be able to? It works if there is no privity (but you could still make the argument), if all that means is what Judge Aldriest said (just common interest)  What if the second case was also criminal like the first? There is a 6th right and this wont work in criminal cases.  Traveler’s Fire Insurance Co. v. Wright: Two partners, JB and JC, lose building in fire. They sue insurance for loss. Insurance Company, during prior proceeding (JB’s prosecution for arson), call Eppler and Brown, who say there was conspiracy to commit arson (they won’t testify now). P wants to bring in former testimony from criminal case. So, against JB, same party who had opportunity and motive to cross, this comes in. But there is an additional defendant – JC. Issue – can testimony against JB in prior proceeding be used against JC in civil trial? iv. Analysis: 1. There is some privity here (they were partners and joint tenants), and JB had similar motive and opportunity to cross. 2. Also, under Aldisert, JB had similar or more motive to cross. 3. Thus, it comes in under either rule even though JC never had opportunity to cross. v. Hypo Twist – what if, instead of this being civil case, JB’s criminal ruling is overturned, and this time, prosecution adds JC to criminal case? 1. Former testimony cannot be used in criminal case b/c of Confrontation Clause. 32 vi. What about Co-conspirator statements? 1. Doesn’t work b/c not during course of conspiracy.  Blue Lines Bus case – page 372: Bus collides w/ car, and passenger brings suit. Wants to prove bus speeding. Carl testified that bus going slowly, and other car crossed line and hit bus. Prior proceeding is 1 vs. bus line (bus line called Carl). 2 then sues bus line. vii. Issue – can bus line use Carl’s testimony against 2? 1. This is civil case. So, is 1 ―predecessor in interest‖ to 2? No, as s cannot be predecessors in interest to each other.  Doug v. Emville Asbestos – note 4, page 372: Facts: 1 against 1  claim ’s product causes asbestosis. Dr. testifies this could be true, good for P Next Case: 2 against the first D and the second D  can Dr’s testimony be used in case #2? Analysis: Aldisert – all you have to prove is that parties had similar motives and opportunities to cross expert. 1 trying to get out of liability just like 2. Thus, all good.  However, 2 could argue not same type of asbestos or examination is different. III. FRE 804(b)(2) – Statement Under Belief of Impending Death (―Dying Declaration‖): o Requirements:  Declarant unavailable.  Declarant must believe death is imminent.  Sometimes there is an issue if death is imminent, does the witness know they are about to die?  Statement must be concerning causes or circumstances of impending death  Must be: a. Homicide case (only type of criminal case), OR b. Civil action. o CA Version § 1242: I. Can use dying declaration: a. Any type of case b. Declarant must have personal knowledge o Non-requirements:  Declarant need not actually die.  Declarant does not have to be right, or does not have to have first hand knowledge. o Rationale:  People won’t lie on their deathbed in front of the big guy.  Classic example – victim, just before death, says ―Punchy got me good.‖  Court looks to surrounding circumstances to see if declarant actually believed death was imminent. 33 IV. FRE 804(b)(3) – Statements Against Interest----different from admission, because its some else’s statement you are trying to get in not your own statement: Requirements: 1. Statement against declarant’s interest Pecuniary or proprietary interest (financial) Subject declarant to civil or criminal liability California: Includes subjecting declarant to ―hatred, ridicule or social disgrace.‖ (Cal. § 1230) Reasonable person would not have made unless true If 3rd party taking blame for D, must corroborate California: Don’t need corroboration Declarant unavailable 2. 3. 4. o CA § 1230: The Differences are:  Statement Against Interest Includes risk of becoming object of hatred, ridicule, or social disgrace (statement against social interest). UNDER CA Social Disgrace could be Statement Against Interest  No need for corroborating evidence if someone confesses to another’s crime, under Federal there must be corroborating evidence. Non-requirements:  Personal knowledge – but if not, there’s question about whether it’s against interest. a. Examples: (1) Hypo 1: 3 siblings want mom’s money as she’s dying (S1, S2, S3). When mom dies, S3 says ―I can’t believe mom left everything to S1.‖ Then, S3 becomes unavailable. At trial b/t S1 and S2, S1 will want to use this prove mom left money to her.  Analysis: When S3 said it, it was against interest (giving up portion of money). (2) Hypo 2: Group of law students meet in class before lecture. Stacy says ―it sure was easy to steal Levenson’s notes.‖ She then drops out and goes to Tahiti. Chris then charged w/ stealing them. He wants to use the statement.  In CA, no need for corroborating evidence that she took them (as w/ FREs). o Why require corroboration?  Worried about D’s finding someone who will say ―I did it‖ and then disappear. However, the book mentions it is hard to say what is actually meant by ―corroborating circumstances‖  Demasi v. Whitney Trust: Ms. Demasi had savings account w/ $700, but in ’32, daughter w/drew most of it. She wants to get her money out of bank. Bank says she 34 will get money if she signs something absolving bank from liability. She does this, and dies. Bank wants to use that affidavit against husband in suit against bank for money.  Analysis: Court said NOT against interest.Immediate interest was to get $$ out of bank, so it was IN her interest to sign, better get some money than nothing at all  HYPO 3 – car accident. 3 people (M, W, F). Man gets out of car and says he’s sorry. W says ―it’s not your fault.‖ M sues F. F wants to bring in statement by W to show it wasn’t F’s fault, since W admitted fault.  Statement is against W’s interest b/c it gives up her claim against him.  Williamson v. United States (statement against penal interest): Harris arrested w/ cocaine in trunk. He said he got it from Cuban in Ft. Lauderdale and was to leave it in dumpster for Williamson. At Williamson’s trial, Harris refuses to testify (unavailable). Prosecutors want to get in statement in which he said ―I was delivering Williamson’s coke.‖  Issue – does all of Harris’s confession qualify as a statement against interest, or just those inculpating Harris alone? Statement was against self-interest (not going into jail) and its not used being used against Harris so its not a self-admission.  Analysis:  Court says that parts that inculpate Harris definitely in. (―I got the cocaine‖)  However, self-serving stuff (pointing finger at Williamson) doesn’t come in. (―But it belonged to Williamson‖)  When there are statements that point to 3rd person along w/ selfinculpatory statements, only the self-inculpating statements come in (can’t inculpate 3rd parties). *****Remember it was said after arrest, so no conspiracy situation available (Bruton)  Example 4-N:  FACTS: Cops pull over 2 guys and see suitcases and smell weed. Turns out they are transporting. The two (Garvin and Torrens) are arrested. Garvin says he didn’t know (thought they were driving cheese). Torrens takes blame and says Garvin knew nothing. Garvin is on trial and wants to get in Torrens’ statements.  Was it against Torrens’ interest? o Yes, implicates himself. o However, Prosecutor could argue statement wouldn’t hurt him any more (as he was caught), so he was trying to be helpful and maybe get lower charge. 35  Do we let this in? If 3rd party taking blame for D need Corroboration (element 3)? o If there is corroboration, then it comes in. If not, it’s out. o We don’t let in someone pointing finger at 3rd party though V. FRE 804(b)(4) – Statement of Personal or Family History: o Requirements: i. Declarant unavailable ii. Statement concerning declarants personal Own history (i.e. “I’m adopted”) or History of relative or intimate associate (i.e. ―my mom told me my brother was adopted.‖) o However, how broad is scope? Could you say ―My aunt Julie married uncle Michael b/c she wanted his money.‖  Courts could go either way. VI. FRE 804(b)(6) – Forfeiture by Wrongdoing: o Requirements:  Declarant unavailable  Defendant made declarant unavailable as a witness  Problem 4N ----Spriegel plea bargains but refuses to testify against Keeton. The letter from Keeton says if you want to stay healthy you know what you need to do. Prosecutor is going to argue I want to get in what Spriegel said (its hearsay said to police out of court). Who’s fault is it? Is this letter signed by Keeton and is this wrongdoing? Judge might say there is enough to link this to D. o CA § 1350 – Forfeiture by Wrongdoing: Requirements:  Serious felony.  Threat of homicide/kidnapping as wrongdoing to keep witness from testifying.  Must show by ―clear and convincing‖ evidence.  Memorialized: (a) In writing procured by law enforcement, signed by declarant, and notarized. (b) In tape recording. o Classic Example – you hear witness testified against you in Grand Jury, and then there was indictment. Then you go to witness and say you will bash his legs in (or kill) if testifies at trial.  Can’t come in through ―Former Testimony‖ b/c Grand Jury (no cross) and criminal trial. 36 VII. FRE 807 – The ―Catchall‖ Exception: e. Two theories: i. Should be used when there is hearsay exception that comes close but doesn’t hit all elements. ii. Should be used when there isn’t even an exception that is close. f. Requirements: i. Statement not covered by another exception. ii. Equivalent circumstantial guarantees of trustworthiness: (1) Evidence of a material fact (2) More probative than other evidence that can be procured through reasonable efforts (3) Serves interests of justice to admit iii. Notice to other party. g. CA Rule – there is none. i. Every time one would have been needed, CA created a new statutory exception. ii. So, tons of exceptions, but no ―Catchall‖.  State v. Weaver: 11 month old child died. Conviction against Weaver (babysitter) b/c autopsy showed recent injuries and it was questionable as to how they occurred. D claims it was the mother. Wants to get in a number of affidavits from people who visited the restaurant where mom worked. Say that a couple weeks after death, mother told them that while she was putting on kid’s snowsuit, kid banged head on coffee table and went unconscious. Says other things to show it was accidental or even mother was responsible. iii. Analysis: 1. Double Hearsay: a. Mother told women, who then wrote it in affidavit. 2. Court uses ―Catchall‖ – says there are many reasons why it’s admitted, but key one is that court was going to convict D, but she has 5 people who will say something to possibly exonerate her. 3. Has to be trustworthy and of material fact h. Bottom Line: i. If there is evidence out there to exonerate someone from murder charge, we want it in. ii. If there is situation where you really need something, and you think there is enough circumstantial evidence to make it trustworthy, and no other evidence, argue ―Catchall‖. 37 VIII. Hearsay and the Constitution: I. Implication?  6th Amendment – in all CRIMINAL cases (uses word ―accused‖) Accused shall enjoy the right to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favour, and to have assistance of council in his defense. a. Also incorporated through 14th (applies to states). b. Involves 3 rights: i. Right to Confront Witnesses against you. ii. Right to Subpoena Witness for you. iii. Right to a Lawyer. II. We Focus on Right to Confront: a. Modern Approach: i. Preference toward cross-examination.  Ohio v. Roberts ---- Sylvia testified at a preliminary hearing against D, and now at trial she is not available. He says I want to confront her. 6th A. about reliability If D can cross-x = reliability If D cannot cross-x  Need to meet other stds. RULE: Hearsay is admissible if: ―indicia of reliability is there‖ a. Firmly rooted exception OR b. Particularized guarantees of trustworthiness d. Right of Confrontation is NOT ABSOLUTE: ii. There have always been hearsay exceptions. 1. If it’s deeply rooted, then it’s in. 2. if it’s new exception, you will have to argue on case by case basis. e. Post-Roberts: Deeply Rooted Exceptions that do not conflict with Confrontations Clause: Co-c statements, excited utterances, statements to physicians, business records, dying declrations, agents admissions, public records f. Crawford v. Washington (Overrules Ohio v. Roberts changes some of the deeply rooted exceptions) ---- New rules governing admissibility of testimonial hearsay statements. Crawford said it was self-defense and the wife did not want to testify in trial (spousal privilege) Crawford says it hearsay (Wife’s testimony) and I shall have the right to cross-examine. Scalia said allowing her testimony violated the right to confrontation.  RULE: Testimonial hearsay ------statements inadmissible if (1) No prior opportunity to cross-examine OR (2) witness available to testify at trial. RULE From CASE: To be admitted testimonial evidence requires unavailability and a prior opportunity to cross-examine. i. Issue: What is testimonial? Scalia left it open…… 38  Book Note on Testimonial: A statement made knowingly to authorities that describes criminal activity is almost always testimonial. A statement made by person claiming to be victim of a crime and describing crime is usually testimonial, whether made to authorities or not. If the statement is made before a crime is committed, it is almost certainly not testimonial. A statement made by one participant in a criminal enterprise to another intended to further conspiracy is not testimonial. A statement made in course of going about one’s ordinary business (business records), made before criminal act or with no recognition that it relates to criminal activity is also non-testimonial.  Testimonial core classes of statements include: a) preliminary hearing testimony, b) grand jury testimony, c) former trial testimony and d) statements in response to policy interrogation.  Washington v. Davis: Admissibility of 911 calls, Are all contacts with law enforcement ―testimonial‖? Facts: ---Woman calls saying my husband is beating me up and I need help. Police comes and the question is what about the statement that the wife calls 911, ―my husband is beating me up‖ Is this testimonial? Explanation of Testimonial: It’s not testimonial because its not being said to substitute any testimony, I am just trying to get help. But when the police get there and ask her questions…..is that testimonial? Yes, because things have calmed down. It all depends if the 911 operator calmed things down and started questioning Rule: Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergence, and that the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution  Rule: Statements to police and 3rd persons are testimonial only if they were made to document what happened. ****Rule: If its forward looking or not response to interrogation it’s not testimonial  Do you forfeit your right to confrontation if you intimidate the witness from testifying? 1) Ask does it meet hearsay? 2) Is it testimonial? Confrontation Clause Issues?  Non-hearsay? No 39  FRE 801(d)(1)?  FRE 801(d)(2)? No Generally No a. Other Exceptions: 1) State of mind exception (could be testimonial), 2) Medical diagnosis (???could be), 3) Business records (always non-testimonial), 4) Public Records (???Could or could not be testimonial (ex: Police Reports), 5) Learned Treatises (always non-testimonial) ……… 6) Co-Conspirator ---- non-testimonial. 7) Dying declarations ---- even if testimonial, tend to allow b. Open Questions  What if no interrogation?  What about statements to non-law enforcement officers?  Finding forfeiture by wrongdoing? c. What about 804(b) Exceptions: 1) Former Testimony 2) Dying declarations 3) Statements vs. Interest 4) Family history 5) Forfeiture by wrongdoing Only if cross-examination allowed OK -- Allow ??? No if to police OK OK  How much cross-x necessary? Owens standard: a. Declarant present b. Doesn’t have to remember much c. jurors can evaluate if declarant present OVERALL REVIEW: There are 3 steps now: Step 1: Hearsay purpose? Step 2: Fit hearsay exception? Step 3: Meet constitutional requirements (3 Step Process Here) a. Is it Testimonial? If yes than go to B and C b. Unavailable? c. Prior opportunity to cross-examine 40 I. CHARACTER EVIDENCE A. Definition: Evidence showing what kind of person the person is and they have a propensity to commit the crime – character evidence is defined by its intended purpose – this is mostly inadmissible B. CHARACTER OF THE ACCUSED 1. General Rule – FRE 404(a) –Evidence of a person’s character or trait of character is not admissible for the purpose of proving action: Exceptions: a. Pertinent character trait offered by accused----pertinent is peaceful, honest…etc b. Character trait by prosecution to rebut the same c. If D attacked victim’s character, prosecutor can offer evidence regarding same character in D i. If D opens the Door, Prosecutor can respond ii. Also, remember these are in criminal cases C. CHARACTER OF THE VICTIM 1. General Rule – FRE 404(a)(2) – In a criminal case, and subject to the limitations imposed by Rule 412, the following evidence is allowed: a. Evidence of a pertinent (tendency to prove) trait of character of the alleged victim of the crime offered by the accused b. Or By the prosecution to the rebut the same Or, c. Self-Defense Homicide Case: When there is evidence that victim was the first aggressor, prosecutor can introduce evidence of peacefulness of the victim to rebut evidence victim was first aggressor i. This is because victim is usually not around (dead)  Problem 5C --- Don is allowed to present evidence against victim and its pertinent (because it can go w/ self-defense), and now Victim can rebut this. D. Methods of Proving Character 405(a) ---Reputation and Opinion, but it has to be done to rebut (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. a. Reputation -----you can say he was peaceful but not list the times he was peaceful i. Should there be a foundation before you ask do you know his reputation ii. The judge decides if you build enough foundation to ask a question b. Opinion ----what about your opinion i. Do you know D? ii. How much time do you know D…..than you can ask the question iii. Do you live and work in same community? c. What about relevant Specific instances? i. Only on cross-x-----on cross-x you can go at it and ask anything 41 ii. Or 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 persons conduct. FRE 405 (b))  Mostly allow in civil cases: For example where element of charge is imp such as 1. Defamation (impact on reputation) 2. Negligent entrustment (Is this a careless person?) 3. Child custody (Which parent has the best character?) 4.Wrongful death (―worth‖ of decedent)  5D--- Don is peaceful says reverend but prosecutor responds did you know he beat up women. You can do this because its on cross-examination but you still need a good faith basis (cant just say he sodomizes parrots) REVIEW FOR CIVIL CASES:  General Rule: Character evidence NOT admissible to show propensity: Exceptions. • • • Civil case based upon criminal behavior Civil victims of sexual assault Character trait is element of claim or defense E. 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. It may however be admissible for other purposes, such as proof of motive, opportunity….. Gen. Rule: Prior acts not allowed for propensity  May be admissible to show:  Motive  Opportunity  Intent  Preparation  Plan  Knowledge  Identity  Absence of mistake or accident We let it in if you can say something other than he was bad before but he is bad now --got to find something other than general propensity though 42  Problem 5-F Drug Sale or Scam? ---During trial D says he never tried to sell cocaine but just wanted to scam the buyer. The prosecutor wants to prove that he had the intent to deal with the cocaine ----this way they can get in the prior acts.  Hypo 1: If D was never convicted before but just arrested, could this be used? Yes because it shows he had knowledge. i. How can you prove the prior acts? You can call witnesses, cross-X D on the prior acts, there is no limitation on the manner.  Problem 5-G --- Bank robber, he confessed to a teller in a previous bank robbery that he robbed the bank. The prosecutor wants to get in saying it was unique showing intent, preparation….. to show he committed robbery this time as well. In his confession, D said he always wears masks and gloves. D says not all robbers wear masks.  Problem 5-H --- Should we let in regular payments to the judge to show that it was bribery. If it shows a plan/ operations its allowed.  Problem 5-I --- Mom brought child in to hospital and child died. P wants evidence that she brought child on two previous occasions ---allow it shows intent, pattern, absence of mistake or accident. E) Character in Sex Offense Cases ---things are opposite in rape cases Victim’s Character a. FRE 412: Rape Shield Law b. Generally: don’t allow evidence of victim’s sexual behavior Defendants Character a. allow propensity b. FRE 413, 414, 415 a) Rape Shield 412 d. General Rule – in rape or sexual assault cases, evidence of V’s sexual conduct inadmissible e. Criminal Exceptions: i. Past sexual behavior with others to show semen or injury ii. Past sexual behavior with accused to show consent iii. Constitutionally required (Olden v. Kentucky) ∆’s Constitutional Rights --Olden v. Kentucky Facts: V had boyfriend other than D (Olden). V tried to keep cheating from boyfriend, so she said D assaulted her. Hold: When person makes up a story to avoid exposure of another relationship, this other relationship can be admitted Analysis: Relationship w/ boyfriend admissible to show motivation to lie about assault. Rule: When introducing relationship to show motivation to lie about crime, evidence of that relationship admissible. 1) 2) 3) 4) 43 RULES about Defendant in RAPE CASES 2. Rape Shield FRE 413—Sexual Assault a. In criminal cases where D is accused of sexual assault i. evidence of another sexual offense is admissible ii. conviction not necessary b. 413(d) – sexual assault definition = rapes, non-consensual sexual contact, sexual pleasure from inflicting pain c. 413(b) – Government must disclose the evidence to the ∆ (notice)  Problem 5-L---if he did before, than it comes in. What sexual assault on a minor? It still fits in because it’s a sexual assault case even though this time its adult. 3. Rape Shield FRE 414—Child Molestation a. In criminal cases when ∆ is accused of child molestation i. evidence of another child molestation offense is admissible 1) conviction not necessary b. 414(d) – child molestation = rape, non-consensual sexual contact, sexual pleasure from inflicting pain c. 414(d) – child = under age of 14 4. Rape Shield FRE 415: Evidence of Similar Acts in Civil Cases a. In Civil Cases for claim of sexual assault or child molestation, commission of another like (sexual) offense is admissible D. FORMS OF CHARACTER EVIDENCE ADMISSIBLE (mostly review) 1. Reputation & Opinion a. 405(a) – always admissible 2. Specific Acts a. 405(a) – generally only admissible on cross-examination b. 405(b) – admissible when character of a person is an essential element of a charge (this rules exists outside of 404 – anyone can introduce this in these circumstances) i. this is very rare in criminal cases ii. more common in civil cases c. CA i. Specific acts regarding victim’s character admissible ii. Specific acts regarding ∆’s violence is admissible 44 II. HABIT A. Evidence of Personal Habit is admissible to prove conduct in conformity with that habit B. Evidence of Organizational Habit is admissible C. Definition of habit: specifics about a person’s routine, i.e. unconscious regularity Not habit when 1. actions are too volitional 2. too much thought goes into it D. Form: This comes in as specific acts because reputation and opinion come in already under character evidence  RULE 406: Evidence of habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ habit or routine practice Habit: always drove under the speed limit and never crossed over the center line Ex: Character: p is a ―good, safe driver‖ Ex: Character: D was a careless driver Ex: Character: ―Halleck was a careless employee.‖ Ex: Habit: ―Halleck always ignored the warning and heated up the cans.‖ Ex: Habit: D was always on his cell phone when he drove a. Hypo1: is being a good and careful driver habit or character No, You can’t just say p is a ―good safe driver‖ b. Hypo 2: Is going to church habit? How automatic is it as opposed to whether it’s a conscious decision? c. Problem 5-O: Illegal alien charged with making illegal entry and they got this agent to testify about the procedures they use. Prosecution is trying to say this is the way the organization always did it. The jury should decided, would rule allow for the organizational habit? We are not looking at their business, simply saying this is how we always get the records (1) Rule allows for organizational habits (2) Need not be eyewitness (3) Does not cover industry practices -----how specifically do they engage in this habit. 45 III. SUBSEQUENT REMEDIAL MEASURES  FRE 407: Definition –Evidence is inadmissible when a party takes measures to ensure that an accident will not happen again E. General Rule – The Evidence is Inadmissible F. Exceptions (But they have to open the door) 1. Impeachment – When a party denies that they would do anything to fix it, remedial measure admissible for impeachment 2. Feasibility – ―feasibility of precautionary measure if controverted‖ – when D says there is no way for them to have taken the alternative, i.e. it was not possible, then P can use the subsequent remedial measure to show the alternative was feasible a. Tuer - D must open the door by claiming it was impossible for them to do it in a different way – i.e. physically, economically, realistically (opinion or judgment is not enough to open the door). If they say we did it the right way, it doesn’t mean they open the door G. Products Liability 1. FRE 407 applies to products liability – subsequent remedial measures not admissible in product liability cases (unless fits exception) 2. CA – subsequent remedial measures are admissible in products liability 3. So D wants to be in Federal Court 46 III. SETTLEMENT DISCUSSIONS H. FRE 408 – Compromise and Offers to Compromise 1. General Rule – Settlement Discussions and Offers to Compromise are inadmissible to prove liability or invalidity of the claim or its amount Rational: No one will engage in settlement discussions because it will be used against them. 2. Exception (a)(2) In a criminal case, conduct or statements made during negotiations of related civil case with government: – statements of negotiation of civil case can be used in the criminal case 3. Exceptions (b): Can use settlement discussions to show a. Bias of witness – impeachment b. Negating a contention of undue delay c. Proving an effort to obstruct a criminal investigation or prosecution  Problem 5P on page 442: Salesman says don’t worry we’ll protect you, just tell me what the damages are. Issue: If it’s a settlement offer? RULE: Its not a settlement since the lawsuit wasnt filed yet, if it’s our fault than its an admission. If its to say in order to settle any claim you may have, than it’s a settlement  Problem 4 on Page 443: She says you can’t use this evidence since I was negotiating my theft claim w/ u. If someone uses negotiations to continue violating the law, they are not going to be protected. 4. To invoke this rule: a. It is best when a claim is already filed, but formal claim is not necessary, intention to file a suit is likely enough to trigger this or clear demand from the other party (just saying there is a problem is not enough) b. Need to carefully identify any correspondence as being for the purpose of settlement discussions otherwise it is just an admission I. FRE 409 – Payment of Medical and Similar Expenses 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. 1. Evidence of these payments is inadmissible to prove liability 2. No exceptions listed in rule 3. Can use these to prove damages (not liability) J. FRE 410 – Criminal Cases Plea Discussions 1. General Rule – The following are not admissible against the ∆ making the plea or participating in the plea discussions where D reneges on plea: a. Guilty plea later withdrawn b. No contest plea 47 c. Any statement made in course of plea discussions with a prosecutor not resulting in plea of guilty or a plea of guilty later withdrawn 2. Exception: Admissible if: a. D introduces part ---or b. In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. a. No Impeachment—can’t use statements in plea discussion to impeach b. False statement charge: Admissible when ∆’s testimony directly conflicts with statements made during plea bargain. i. ii. Rule of completeness – cannot mislead the jury as to what was said in plea negotiations EX: D tells prosec. that he did it, but at trial says never told prosec. he did it c. Perjury: When prosecutor actually brings a perjury charge, you can use any statements during plea discussions to prove this d. Criminal plea negotiations are not admissible in civil lawsuits either e. The rule only covers negotiations with those authorized to negotiate – usually just the prosecutor f. Negotiations must be personal to you, not negotiations to get others off g. ∆ and ∆ counsel are covered by the rule h. Prosecutor’s discussions cannot be used either i. Not guilty plea just means you are telling the prosecutor to prove his case K. FRE 411 – Liability Insurance 1. General Rule – Evidence that a person was or was not insured against liability is not admissible to prove person acted wrongfully 2. Exceptions – Admissible to prove: a. Ownership – (he that pays the insurance likely owns it) b. Control c. Bias or prejudice d. Proof of agency 48 III. WITNESS COMPETENCY A. General Rules of Competency 1. FRE 601 – Very low standard for competency. Every person is competent to testify unless specific rule to the contrary a. But control this with 403, 602 (no personal knowledge), 603 (inability to understand the oath), 611 (judge controls the courtroom) b. Judge can use experts to decide competency, just need good faith basis to request just an examination c. Incompetent If: i. Not able to express self, ii. No personal knowledge, iii. Unable to tell truth  CA – 700, 701 – all are competent unless they are unable to express themselves (unable to communicate) or incapable of understanding the duty to tell the truth d. Court has to W express selves B. FRE 602 – Lack of Personal Knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony. 1. Examining attorney must introduce evidence sufficient to support a finding that the witness has personal knowledge of the matter – lay the foundation 2. Direct observation is not required, rule just prevents witness from things purely imagined  Problem 6-E --- You can have personal knowledge through hearsay. Lack of personal knowledge is almost never a good exception i. Lay the foundation before asking the crucial question of how does the witness know. C. FRE 603 – Oath or Affirmation 1. Witnesses must declare they will testify truthfully by taking an oath or affirmation intended to: a. Awaken the witness’ conscience b. Impress the witness’ mind with duty to tell the truth *****Modern Approach for Child Witnesses: Ability to take and understand the oath and ability to be understood.  Ricketts – the kid must just be able to tell the difference between truth and a lie. Judge gets off the bench away from the jury and talks to the kid to determine his ability to tell the difference 49 c. CA - §710 – kids under 10 do not take an oath, just promise to tell the truth 2. Hypnotism  Federal – Rock v. Arkansas – admissibility of memories recovered via hypnotism depends on balancing of rights of D to defend herself vs. legitimate evidence concerns – so look to measures to ensure reliability of evidence: i. No per se prohibition ii. Balancing Test b. CA §795 – The following conditions must be satisfied in CA: i. Testimony limited to the matters which the witness recalled prior to hypnosis ii. Witness gave informed consent to the hypnosis iii. Licensed hypnotist (doctor, psychologist, etc.) iv. Written record of the pre-hypnosis memory v. Written, videotape, audiotape record of the session D. Lawyers as Witnesses: Not prohibited by FRE Limited by Ethical Rules / Not allowed unless: 1) Uncontested issue 2) Regarding formality 3) Related to nature and volume of services 4) Would pose substantial hardship for client E. Competency of Judge as Witness 1. FRE 605 – Judge cannot be witness 2. CA §703 – Judge can be witness unless a party objects 3. Note: Judge asking questions is OK, if not serving as advocate F. FRE 606(a) – Jurors as Witness During Trial (a) Not at the trial (b) Not regarding deliberations (c) Permits inquiry into  Extraneous outside influence  Mistake in completing verdict form G. FRE 606(b) – Jurors as Witness during challenge of verdict 1. Jurors cannot be made to talk about internal deliberations a. Internal deliberations include anything about how and why they came to their verdict such as i. Misunderstanding of jury instructions ii. Compromise verdict ---took out dice and threw it iii. Like Way D was dressed iv. One of the jurors was a bully 50 v. Feeling sorry for a party 2. FRE 606(c) Jurors can be made to testify about (1) external influences/information improperly introduced or (2) (ADDED in 2006) mistake in completing verdict form ----the mistake part is more like a clerical error, like I checked the wrong box, its not that we came up w/ the wrong conclusion. a. Examples of external influences: i. Bribes ii. Newspaper being brought in iii. Legal argument papers (law review), mailings to jury, looking up info on the Internet iv. Jurors bringing in outside sources  Problem 6-A ---Can you bring affidavit that one of the jurors read the newspaper? This is a form of extraneous info  Problem 6-B--- Rule does not allow view of juror deliberations. The jurors considered D’s refusal to take the stand as admission of guilt  Problem 6-C ---Jury finds lawyer liable but screws up the math and they added instead of subtracting. The verdict was 890 K instead of 90 K. Could you get the juror’s testimony, the evidence rule says you cant get the juror to say why the verdict doesn’t make sense but you could still bring Judgment never withstanding the verdict,  Problem 6-D ---Jurors went outside and checked the scene of the accident, this is not allowed.  Tanner – challenge of verdict because jury was drunk and stoned – court says all jurors come with baggage and the influence was not introduced from outside the jury so its an internal matter. i. You can challenge jurors who are drunk during trial, but you have to do it at the time and not afterwards.  CA – More willing to let in objective evidence of juror misconduct but not to show how affected deliberative process a. CA more willing to let in evidence than FED 51 EXTRANEOUS INFO VS. INTERNAL DELIBERATIONS OVERVIEW  Extraneous Info  Bailiff talking to jury  Newspaper brought into jury room  Mailings to jury  Looking up information on Internet  Internal deliberations‖  Didn’t understand court’s instructions  Compromise verdict  Like way D was dressed  Felt sorry for a party  One juror was a bully IV. RULES OF EXAMINATION H. FRE 611(a) – Judge Controls the examination to 1. save time 2. get the truth effectively 3. protect witnesses I. FRE 611(b) – Scope of Cross-Examination 1. LIMITED TO: a. subject matter of direct (why witness was called originally) b. credibility of witness c. matters permitted by court (when witness is going to be called again anyway for another purpose) J. FRE 611(c) 1. Leading questions generally not allowed on direct examination i. Leading questions is you were there on the night of Dec, right? 2. Exceptions: a. Develop Testimony b. Leading questions always allowed on Cross-examination c. Direct examination if hostile or adverse witness . i. Leading questions Allowed on direct when: a. Adverse/hostile witness b. During preliminary matters c. Children afraid to speak in court d. Witness unable to remember e. Other times where witness’ interest is aligned with opponent K. FRE 612 – Present Recollection Revived a. General Rule: Anything can be used to refresh a witness’ memory either before or during testimony b. Adverse party has the right to see it and introduce it into evidence 52 i. ii. 2. Notes: FRE – discretion of judge to require disclosure if refreshing before testifying if in the interests of justice (disclosure doesn’t mean jury gets to see it) CA §771 – no judicial discretion – mandatory disclosure a. Refreshing a witness’ memory is always allowed b. The writing does not come in as evidence automatically, jury does not get to see it, just witness c. This is not creating a new hearsay exception because not using this to prove the truth of the matter asserted, just assist W 3. Compare this to Past Recollection Recorded ----can only use W’s statements or adopted statements as Past Recollection Recorded. RULE 803(5) if you want to get it in.  Baker – the writing of another officer can be used to refresh the recollection of the testifying officer even though the writing does not satisfy a hearsay exception.  Julian – (disclosure overrides privilege) one side compiles a notebook to prepare a witness to testify – that party claims that the notebook is work product privilege – court says that because it was used to refresh a witness, it must be disclosed to the opponent. 4) FRE 612: IF a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying or (2) before testifying, an adverse party is entitled to have the writing produced at the hearing.  FRE 612 requires disclosure of witness preparation materials. Balancing issue. When you show a witness report you may waive the confidentiality privilege . a. Note – this means that you should just show witnesses documents that are otherwise discoverable L. Exclusion of Witnesses – FRE 615 1. General Rule: Court shall order witnesses excluded from hearing upon request by a party (not discretionary) or on its own motion 2. Exceptions: a. Party to the case b. Officer or Employee of a Unnatural Entity Party i. Corporate, or Gov’t c. Person essential to the presentation of a party’s cause i. These are experts that will hear all evidence and give opinion based upon it d. Person authorized by statute (e.g. victim) 53 i. Victims rights statutes – unless ∆’s due process rights will be violated (you have to argue that victim’s testimony will be too tainted) 5) Cross-Examination Right a. In criminal cases there is a right to cross-examine b. In civil cases there is also right to cross (depending on nature of adversarial process), the remedies if witness refuses to submit to cross-examination then you can (1) strike testimony or (2) mistrial V. IMPEACHMENT A. Types of Impeachment 1. Bias, Motive to Lie 2. Bad perception or memory 3. Type of Person who lies a. Prior dishonest acts [FRE 608(b)] b. Prior convictions [FRE 609] c. Character – Liar [FRE 608(a)] 4. Prior Inconsistent Statements 5. Contradicting Evidence 1. Bias, Motive to Lie: This is not in the rules – but bias survived passage of the rules (Abel). Examples: ii. iii. iv. v. vi. Relationships with parties Getting paid Plea deals Friendships Personal animosities  Abel – Membership in secret type of prison organization. Is this admissible to show bias? (Aryan Brotherhood) can show bias based on mutual associations: Must show how organization is relevant to show bias. 1) A tenet of the association is to lie 2) The party shows loyalty because of common membership in the organization 2) This evidence is admissible by: a. Cross-examination 54 b. Extrinsic evidence 3) Considered relevant under FRE 401 2. Bad Perception or Memory; Examples i. Obstruction of View ii. Inability to Perceive iii. Drugs iv. Distractions  This evidence is admissible by: Cross-examination; Extrinsic evidence 3. Type of Person Who Lies (WITNESS is untruthful) FRE 608(a) – Evidence of Character and Conduct of Witness: (a) Opinion and reputation evidence of character. 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.  Only for character of truthfulness or untruthfulness (otherwise go to 404 if it is a ∆ or  Evidence of truthful character only admissible after character of a witness is attacked – must be rebutting a) Prior deceitful acts of the witness FRE 608(b) – Evidence of prior deceitful acts Requirements: (1) May ask on cross-x only (2) Must be deceitful acts ----must prove that it was deceitful act.  IMP: Can’t prove by extrinsic evidence. c) Must be acts of deceit: What are acts of deceit? 1) Not act of deceit???:-----not anything illegal is deceitful a) Stealing (probably not unless it was deceitful) b) Killing ---generally not an act of deceit but if you conceal it than it is. 2) Acts of dishonesty: a) Forgery b) False statements c) Perjury 55  Does not have to be convictions  Stuck with the answer  There is no limit on rule but the court has discretion and you need a good faith basis. d) May not be proved by extrinsic evidence – so you can ask the witness about the deceitful acts during cross but if they deny it, there is no way to call other witnesses to rebut this denial  U.S. v. Manske: 608 (b) has 3 approaches. One of the guys is a bully (Pszeniczka) has been going around and saying if you don’t keep pointing your finger at Manske on trial, I will kill you. He has threatened witnesses to testify in a certain way and the issue is how broad to read the rule. What constitutes a deceitful act? There are three approaches: (1) Broad (any bad act) (2) Narrow (only perjury or forgery) (3) Middle (facts reflect on truthfulness): E.g, threatening someone if they don’t lie; Also relevant to bias (not limited by 608(b)).  Attorney must have a good faith belief for asking about the act  Does not have to be illegal or related to the facts of the case (scope of cross does not matter here) e) When D is the witness: A) judge has more concern that the prior acts are going to convict him even though you are just using the prior acts to impeach – so you have to balance using 403 B) the prior acts are admissible under 608(b) and 404 does not have to apply C) You could be using 404(b) and 608(b) at the same time to show untruthfulness and plan/motive, etc. – if you can use 404(b) then you are not limited to crossexamination b) Impeachment with Prior Convictions. FRE 609(a) A) When impeaching a witness other than the accused, Admissible if 1) Crime of dishonesty regardless of punishment; or 2)Felony conviction unless other party shows that under 403, prejudice substantially outweighs probative a) favors admissibility b) Burden on party opposing impeachment  Rationale: Conviction shows the witness is the type of person we cannot trust to tell the truth. B) When impeaching a witness who is the accused, Admissible if 1) Crime of dishonesty regardless of punishment; or 56 2) Felony conviction but only if prosecution shows that probative value outweighs danger of unfair prejudice – a) Burden on party trying to impeach – prosecutor b) favors inadmissibility (this is if D is a witness) C) CA Evid. 788: only felonies can be used to impeach  For Regular witness the test is whether the prejudice is greater than probative value? In regards to D its harder since we look if the prob is greater than the prejudice.  Crimes of dishonest or false statement are always admissible but other misdemeanors are not admissible. D) FRE 609(b) – Time Limit Requirements of 10 yrs 1) Such evidence inadmissible if it has been more than 10 years from date of conviction or date of release, whichever is later Exception: Unless court determines (1) probative value substantially outweighs prejudice and (2) the interests of justice determine this—favors non-admission but some convictions over 10 yrs can come in if two reqs above are satisfied. E) FRE 609(c): Pardon Pardon makes a conviction inadmissible only if pardon was base d on rehab finding or finding of innocence F) FRE 609(d) Juvenile Convictions: Evidence of juvenile crimes are generally not admissible In extraordinary cases, court has to discretion to allow this evidence if necessary for a fair determination of issue of guilt or innocence G) FRE 609(e) Appeal: Pendency of appeal never makes the conviction inadmissible 608(b) & 404(b) vs. 609  If prior conviction involved specific deceitful acts (608(b), or acts that go to 404(b) purpose, you can ask about specific acts  E.G Mr. Milken, you say you didn’t intend to defraud anyone? Isnt it true you were convicted of defrauding 800 prior investors w/ same misrepresentation?  Lipscomb ---Facts: 3 witnesses all have priors and none of the crimes involve dishonesty. Judge must determine 403 analysis. Here, the witnesses have Little (5 yr robbery), Smith (1 yr robbery), Green (3 yr manslaughter). Could prior convictions be used to cross-x defense witnesses? Issue: what kind of factors do you take into account 57 to decide if prior conviction comes in Balancing Factors to use under FRE 609: 1) Nature or Similarity of the crime ---you should argue does the nature of the crime go to dishonesty. c) Similarity – too similar  too prejudicial i) Whether the jury will likely be confused and allow the impeaching evidence go towards propensity d) How much the crime reflects dishonesty Timing of crime – the older it is, the less it is probative of truthfulness. Length of Record --- Overall Record of W or the # of convictions - one conviction may be a mistake but life of crime is very probative but also too prejudicial so D wants to limit the record to 1 or 2 convictions Importance of witness’ testimony and how much it is in dispute ---if its really imp you got to allow the conviction. The other side will say they wont testify if you allow this impeachment. Admit or Deny offenses ------Did they admit prior offenses ---that shows their honesty. 3) 4) 5) 6)  Some courts will bring in the convictions w/ limited instructions.  Prior Convictions can be proved with Extrinsic Evidence and Cross-X (FRE 803(2))  Problem 8-C: The P is an Ex-con. D wants to impeach the P by saying you have two prior convictions for manslaughter and forgery 9 years ago. Forgery automatically comes in under 609 (a)(2). We don’t have to do the same kind of balancing for civil cases, but 403 probative value can still come in.  Problem 8-D: D charged w/ armed assault and he is the one testifying. 1. Automatic under 609 (a)(2) 2. (a) (1) ---it’s a crime of falsehood but here its not so we have to do a balancing. Is it more probative or prejudicial 3. Do balancing ----prejudicial because it’s the same crime ---make argument either away C. What are considered crime of dishonesty? A. Murder. Prostitution, drunk driving, distributing narcotics? Not an act of dishonesty…. Embezzlement? Dishonest people.  Luce – Does D have to testify in order to preserve his objection to courts order on use of prior conviction to impeach his credibility? Court said you have to take the risk and testify to do a 609 challenge. D. Difference with 608:  Ordinarily, jury just gets to hear the name of the crime, date of crime – but 608(b) may allow more details such as the specific deceitful acts (have to show deceit) 58  No need to do balancing of 609 if you can get in the acts under 608 or 404 c) Character Liar --- FRE 608 (a) ----See above a. Reputation or Opinion Evidence ---you can use reputation or opinion to discredit the witness. b. Established foundation ---how long did you know them and was it for a long time? c. No formal residency requirement  Can experts be the ultimate character witness? Generally we don’t allow experts to tell who is lying? The jury is supposed to decide who is a liar. Specific Impeachment 4) Prior Inconsistent Statement --- Prior statement being used to impeach  Not admissible for substantive evidence (need ―under oath‖ and in ―proceeding‖; Get limiting instruction if you are just doing the prior statement for impeachment. a) Purposes: 1) Nonhearsay purpose – this is impeachment and the instant rule 2) Hearsay purpose – when using the prior inconsistent statement as substantive evidence – go to FRE 801(d)(1)(a) or CA rule  FRE 613(a) – (a) Examining witness concerning prior statement. No requirement that you show the witness the inconsistent statement first  FRE 613(b) – Extrinsic evidence of prior inconsistent statement of witness. (1) Can show with Extrinsic Evidence of a prior inconsistent statement by a witness but must give Witness the opportunity to explain the extrinsic evidence *****There is no requirement as to when this opportunity must be given (so as long as the speaker is going to be around later, you can wait to bring up the inconsistent statement) (2) Opposing party must be able to cross about extrinsic evidence  IMP: Not admissible unless it meets hearsay exception (FRE 801 (d) (1) (A) or FRE 801 (d)(2) Admission.  Webster – Should you be able to impeach your own witnesses? Yes, but you must have a good faith basis for calling the witness – cannot call them just so that you can impeach later. If the prosecutor knew that the witness would start lying, then it shouldn’t be allowed.  Harris – statements taken in violation of Miranda can be used to impeach a witness. Silence can also be used for impeachment --- silence needs to be pre-Miranda 5) Contradicting Evidence (No FRE) 59 (Ex: My Cousin Vinny--- what he said didn’t make sense based on outside information---would it be too collateral for Joe Pesci to call someone so they could describe how long it takes them to cook their grits) Contradiction:    Refuting witness’s story Not contradicting specific statement How far go in refuting specific facts? Requirements:  No specific rule  Matter of practice and common law  Cannot contradict on ―collateral‖ matters  Ernie v. Florence: What do we mean by collateral? a) Collateral Rule only applies when an extrinsic witness will testify that what the witness said is not true b) Cannot contradict on ―collateral‖ matters. Big issue: What is collateral? Does it go to the heart of the case? *****Requirement – Courts exclude counterproof that contradicts only on a collateral point – requirement of dual relevancy: 1) proof of untruthfulness, 2) proof of some point that could make a difference in the case  Collateral if it involves little details  Florence ran into Ernie (OK - merits)  George and Florence are good friends (OK - bias)  Drugstore was closed (collateral)  Collateral if it does not go to the heart of the case 3) Rational: The point is efficiency – little collateral points can still be impeached with the witness who made those statements on cross ---so if its on cross examination its ok Ernie v. Florence contradiction examples: 1. Ernie backed into Florence; 2. George saw from curb and first met Florence after the accident; 3. George returning from Jason’s Drugs 1. Florence ran into Ernie (OK merits) 2. George and Florence are good friends (OK - bias) 3. Drugstore was closed (collateral) M. Repairing Credibility 1. Ways to Repair the Witness: a. Explain the answer on redirect ---- You ask the witness to explain an earlier statement that looked bad 60  Page 581 Note 1: C-X: When you open on cross the other side gets to explain it and this might hurt you even more. b. Preemptive strike – have your own witness admit the problem before the other side brings it up c. Evidence of truthful character – 608(a) – but you must wait for the other side to bring up untruthful character first  Can open the door to even more attacks (FRE 608(b)) -- Allows for questions regarding specific acts a. When is attack sufficient to trigger FRE 608(a)?  Cross-x with convictions  Cross-x with specific acts  Attacks by other witnesses and documents d. Prior Consistent Statements – 801(d)(1)(c) – If offered for truth asserted, must be before motive to fabricate a. Can offer any prior consistent statement if offered to rebut claim that: i. Does not remember events ii. Has always seen things the same way  Problem 8-I --- Cross-x suggest witness does not really remember. Prior consistent statement offered to show that W always remembered e. Corroborative Evidence: means other evidence that supports the witness such as tapes, phone records, other witnesses, D’s statements Forbidden Attacks:  FRE 610: Cannot attack W’s credibility on the basis of the W’s religion. 61 VI. OPINION TESTIMONY A) Lay Opinion 1. FRE 701 – Lay Opinions Admissible when: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 2. EX: physical appearance of a person, recognition, emotional state, approximations of speed, distance, temperature, value of one’s own goods or services, visible signs of irrational behavior, odors 3. Notes a. Experts can also give lay testimony – Maglaya – cop can give testimony on matching shoe print to the shoe because he saw both b. Witness does not have to be 100% sure c. Limitations on FRE 701: Speculation: Ex: ―I can only guess that he was in a hurry.‖ ―She looked real guilty.‖ ―It must have been millions in damages.‖  Problem 9A ---- It was my impression that he had been involved in the explosions. Opinion rationally based upon her perceptions. You don’t have to be totally right  Problem 9B –Watchful neighbor i. It practically happened in front of me---ok ii. Going 35 mph ---its ok some1 giving opinion or ballpark iii. Strong smell of pot ---ok iv. Approx value of car is 5K --- don’t really have to call an expert N. Expert Opinion 1. FRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. a. Who i